Is James Gorman, the new head of retail at Morgan Stanley, brazenly poaching employees from his old firm, Merrill Lynch?

A judge apparently thinks so. On Tuesday, New York Supreme Court Judge Emily Goodman issued a temporary restraining order, requiring Gorman and one of his new Merrill hires, Richard Skae, to refrain from “directly or indirectly” contacting financial advisors or branch managers who were employed by Merrill Lynch in the past six months. Merrill claims in its complaint that Gorman could do “irreparable harm” if he lures more recruits to Morgan Stanley.

Gorman, Morgan and Merrill will be back in court on March 30.

The restraining order was issued in response to a memorandum of law filed Monday by Merrill, after Gorman hired three of his former Merrill colleagues, including Skae, just five weeks into his new job. Merrill claims that Gorman has violated his employment contract, in which he agreed not to solicit any Merrill Lynch employees for one year following his departure in February.

“It strains credulity for Gorman and Morgan Stanley to claim that Skae, Miller and Saperstein reached out to Morgan Stanley and that Gorman played no role in soliciting them and used no confidential information in agreeing to hire them and place them in their positions,” Merrill wrote in its brief.

Morgan Stanley defended itself and Gorman in a statement, saying “James Gorman and Morgan Stanley have complied fully with all relevant obligations with Merrill Lynch. It’s a testament to James’ leadership that people who have worked with him in the past are eager now to join his new team.” And, “The Judge's action in no way prohibits any officer, branch manager, financial consultant or other Merrill Lynch employee from pursuing employment with Morgan Stanley.”

Last week, Gorman announced a new regional management structure, with former Merrill executives Jerry Miller and Richard Skae serving as two of four regional managers. Meanwhile, Andrew Saperstein, another former colleague from Merrill, will join Morgan as chief operating officer of national sales next week.

Merrill alleges that Skae, too, plans to prey on Merrill’s branch manager and rep force. “Within less than 24 hours of Morgan Stanley announcing his appointment, Skae told existing Merrill Lynch branch managers that he intends to aggressively recruit them and Merrill Lynch’s financial advisors.”

Gorman has good reason to want Merrill brokers at Morgan Stanley. They are the most profitable on Wall Street, a metric where Morgan serious lags its peers. Gorman is also undoubtedly desperate to reverse the massive tide of broker departures of the past year, as he works to turn the ailing retail brokerage around. At the end of the first quarter, the total number of financial advisors at the firm stood at 9,000, down from 10,962 at the end of 2004. (Around half of the departed brokers, or close to 1,000, were fired last year in an attempt to get rid of low-end producers.)