There is an interesting case filed in Dallas, Texas where attorney Evan Lane “Van” Shaw has sued 193rd District Judge Carl Ginsberg (left) after the judge alleged that Shaw was stalking him. He is suing the judge for libel and slander. The case raises provocative questions about not just recusal but defamation.

Previously, Shaw filed to have a case involving the dissolution of his law firm removed from Ginsberg’s docket due to the comment. In Lemon v. Shaw, Shaw and his former law partner D. Brent Lemon contested the division of clients and fees. Even after a settlement agreement, Shaw’s partner filed to set it aside in the 193rd District Court.

In Shaw v. Ginsberg, Shaw is alleged both libel and slander, stemming from an incident in the morning of June 30, 2008. Ginsberg saw Shaw outside his townhome complex and when Ginsberg drove to a 7-Eleven, Shaw arrived at the same convenience store and pulled his vehicle up next to Ginsberg’s car. Ginsberg stated that it looked like Shaw “was stalking him” and Shaw filed his recusal motion, which Ginsberg denied. The recusal motion was later referred to another judge and is still pending.

It seems to be that, regardless of the merits of the stalking allegation, there is a basis for recusal once the allegation was made. The matter was referred to the police, which found that there was no basis to proceed further. From the judges perspective, it is a difficult question. Assuming that these meetings were not accidental, a judge could view this as an attempt to create a basis for recusal. After all, from Ginsberg’s perspective, Shaw had already appeared angry at his rulings in the case. Yet, a referral of a personal complaint to the police and a stalking charge does create personal animus or tension between counsel and the judge.

To make matters more serious, Ginsberg reportedly also sent an e-mail to all civil district, family district and family associate judges who work in Dallas’ George Allen Courthouse apprising them of the situation and “asking them to be careful about allowing [Shaw] unaccompanied access to the secured hallway behind the courtrooms.” This creates another fascinating element in the case. Intra-corporate communications are often privileged under defamation law except when made outside of one’s employment role or with malice. This privilege, however, is generally raised when an employee with subject to discipline by the employer and sues over an internal complaint. This is a bit different given the fact that, while he is an officer of the court, he is not an employee of the court.

Another aspect is privilege or immunity attached to Ginsberg’s statements as a judge. Shaw is arguing that this is a non-judicial act since it concerns him personally. However, Ginsberg is likely to argue that it is connected to a case and court security.

It will be a high hurdle for Shaw. Ginsberg has not just certain privileges as a judge but he clearly has a privilege to report such matters to the police — and to give a precautionary warning to fellow judges. On the latter point, however, it is hard to see how the stalking of Ginsberg raises a clear threat against other judges.

In his campaign for the court, Ginsberg described himself as “soldier in the trenches” willing to fight for the rights of the oppressed. I am a bit uncertain however about his campaign line that he brings “[a] commitment to the belief that everyone does better, when everyone does better.” That may be grounds for recusal from the court as a whole, or at least a court-ordered re-write.

All of this makes for one fascinating controversy.

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