In FOIA officer case, city’s lawyer fires back at judge for questioning his ‘candor’
A lawyer representing the city of Richmond in a high-profile lawsuit about government transparency is arguing a local judge unfairly smeared him by publicly questioning how honest he’s been with the court.
In a new motion filed Monday, the city’s legal team called the judge’s impartiality into question, implying she’s created an appearance of unequal treatment in the long-running lawsuit filed by former city Freedom of Information Act officer Connie Clay.
Ogletree Deakins attorney Jimmy F. Robinson Jr. — the city’s lead lawyer on the case — asked Circuit Court Judge Claire G. Cardwell to either revise or remove her written remark about his “apparent lack of candor.” As an alternative, Robinson wrote, the judge should consider recusing herself from the case entirely.
Robinson seemed to acknowledge he and the city were taking an extraordinary step by floating the possibility that the judge should step back from the case. Recusal, the filing said, is only being raised “reluctantly and with full respect for the Court.”
“The Court issued a written opinion publicly questioning defense counsel’s honesty,” Robinson wrote. “Findings that implicate an attorney’s honesty carry serious professional implications both for the attorney and by extension, their client.”
The dispute over truth-telling arose as the judge was trying to resolve two conflicting stories she was told about whether the city had fully complied with the rules for a court-ordered settlement meeting on Dec. 11. That meeting was overseen by a retired judge acting as a mediator.
Robinson had said the city was fully cleared to arrive at the meeting an hour later than originally planned, with Chief Administrative Officer Odie Donald II only available by phone instead of fully participating in the talks. After looking into the matter with the retired judge, Cardwell ruled that Robinson’s statements were incorrect and the city had not been authorized to deviate from the court’s orders on how the settlement meeting should go. The judge ordered the city to attend a second settlement meeting, and instructed all sides to show up in person and on time.
Robinson argued the judge’s commentary about his candor damaged his reputation without a full exploration of the facts the court believes he misstated.
A clarification of the court’s order, Robinson wrote, would prevent it from being seen as a formal finding of “professional misconduct.”
“Defense counsel has received hostile and threatening communications from anonymous and untraceable sources, including text messages and emails referencing the accusations reported in the press,” Robinson wrote. “While the identity of the individuals responsible for those communications is unknown, their existence illustrates the real-world consequences that can flow from a judicial statement questioning an attorney’s candor before the relevant facts have been established.”
Ogletree has billed the city nearly $700,000 for its work on the case so far in 2024 and 2025, according to city documents. Robinson has been billing a $470 hourly rate for his time.
Graham Moomaw
Clay filed the lawsuit two years ago, claiming she was wrongfully fired from her former job handling public records because she had spoken up about the city’s perceived failures in following FOIA. The city claims Clay’s firing was justified because she was bad at the job and wasn’t getting along with co-workers.
Though the case is about a specific employment matter, it also touches on the broader issue of how the city government responds to outside scrutiny, whether from the public, the press or the courts.
The substance of the case has at times been overshadowed by the unusual level of hostility between the lawyers involved. Cardwell has chastised both sides in the lawsuit for their conduct, but much of her most pointed criticism has been directed at the Ogletree Deakins lawyers hired by the city.
The city’s move against the judge came a few weeks after Cardwell issued a ruling that sharply criticized the government and its representatives for not being upfront about efforts to find and turn over documents relevant to the case.
In that order, Cardwell faulted the city for allowing a key cell phone to go missing without fully disclosing to the court that potentially relevant evidence had been lost along with it. The phone had belonged to former city spokesperson Petula Burks, who dealt with FOIA as Clay’s boss and was involved in Clay’s firing. Burks says she lost the phone during air travel in the summer of 2024, which was months after Clay had filed the lawsuit.
The judge ruled the loss of the phone was a serious enough problem that jurors will be made aware of it if the case goes to trial this summer and told they can assume any lost evidence was unfavorable to the city. Because it took so long for the city to even say the phone was missing, Cardwell ordered the city to pay Clay’s legal fees for the time spent on several hearings and motions about evidence production only to find out the phone was lost. Cardwell also said she agreed with Clay’s team that the city’s side had not — at that point — engaged in good faith settlement talks to potentially resolve the matter outside of court.
Mayor Danny Avula has not weighed in on that ruling, and it’s not clear if the mayor signed off on the latest filing taking aim at the judge’s ability to fairly hear the case. Avula spokesperson Mira Signer declined to comment.
The city’s latest motion also argues the judge was wrong to rule the case was tainted by the loss of the phone. That issue will be addressed in a separate filing, according to the city’s lawyers, asking the judge to reconsider her actions.
Michael Phillips
‘Candor to the tribunal’
Under Virginia State Bar rules, licensed lawyers are bound by rules requiring “candor to the tribunal.”
Those rules essentially say lawyers cannot make knowingly false statements to a court, which Robinson says he has not done in the Clay case. Because it’s a serious matter to question a lawyers’ commitment to telling the truth, Robinson argued, it was inappropriate for the judge to do so without a more formal process for taking evidence and testimony.
“Under the Virginia Canons of Judicial Conduct, recusal may be appropriate where a judge’s impartiality might reasonably be questioned,” Robinson wrote.
The judge’s candor remark wasn’t her first statement questioning whether the city’s representatives have told the whole truth during the court proceedings.
Last year, Robinson told The Richmonder the city’s team had not asked Cardwell to seal a court document he believed the media should not have been able to access. That document was not particularly important to the case, but it contained an admission that the city did not have a digital backup of the lost phone that once belonged to ex-city spokesperson Petula Burks.
At the next hearing in the case, Cardwell said the document was not meant to be sealed. Robinson’s statement that the city did not ask for the sealing, the judge said, was “directly contradictory” to what happened.
The judge pointed to email evidence showing Robinson had asked for the document to be sealed, despite his assertion to The Richmonder that the judge took the action “on her own.” Robinson argued his statement was not misleading because he had technically asked for the court clerk’s office to seal the document, not the judge herself.
Cardwell and Robinson had a particularly heated exchange at that hearing in November. After the judge accused Robinson of being generally unresponsive when needed to deal with court matters, Robinson said he makes every effort to respond promptly but had been dealing with the death of a family member. During that back-and-forth, Cardwell at one point asked Robinson to lower his voice. A bailiff working to maintain courtroom security and decorum also instructed him to calm down.
In the new filing, Robinson revealed that he previously complained about the judge’s treatment of him shortly after the contentious hearing last year.
He said he sent the judge a letter on Nov. 21 “about the appearance of unfair treatment.” Because the prior complaint was a letter sent to the judge’s chambers, it is not part of the public record in the case.
Clay’s team questions travel costs
Clay’s attorneys — Sarah Robb and Tom Wolf — are also showing few signs of backing down from the legal hostilities.
After being ordered to pay travel expenses Burks incurred to travel from Alabama to Richmond for a Nov. 17 deposition that didn’t happen, Clay’s lawyers filed a motion Tuesday that cast doubt on the receipts the city filed showing how much that trip cost.
The city’s attorneys filed proof-of-cost documentation saying the amount owed was about $966, which covered a flight, hundreds of miles of ground travel in a rental car and a three-night hotel stay. But Clay’s lawyers aren’t convinced it proves anything, arguing the travel receipts raise new questions about Robinson’s previous statements to the court.
The receipt filed for the plane ticket was dated Nov. 15, which was several days after Robb had tried to call off the Nov. 17 deposition because new information was coming to light. While discussing the possibility of postponing the deposition, Robinson indicated at the time that Burks had already “incurred significant expense to travel back to Virginia.”
Though Clay’s attorneys had signaled they were not going forward with the deposition, Cardwell did not authorize the cancellation beforehand, which is why the judge ordered Clay’s team to cover some of the costs of the city defendants.
Clay’s lawyers argue the receipts don’t align with previous statements made by the city’s attorneys. After saying Burks had arrived a day early to prep for the deposition, the receipt shows the flight was scheduled to land in Richmond around 11 p.m. the night before.
The city’s attorneys also previously told the court Burks was at the Ogletree Deakins office on the day of the deposition and was prepared to stay from 9:30 a.m. until 1:30 p.m. However, the rental car receipt says a vehicle was picked up at the Richmond airport at 11:55 a.m. that same day.
The city’s lawyers have not yet responded to the allegations about the travel receipts. Clay’s lawyers said they should not have to pay expenses based on “false or misleading records.”
The judge has not yet taken up either matter.
Contact Reporter Graham Moomaw at gmoomaw@richmonder.org
