Wednesday, October 15, 2008

Duty To Report

The Massachusetts Committee on Judicial Ethics recently opined that a judge is obligated to report to the Board of Bar Overseers conduct of an attorney who is counsel in several matters before the judge, including a domestic relations matter where the attorney represents himself. The attorney filed a recusal motion in all matters on the following basis:

...the attorney filed a motion to recuse in the case in which he is appearing pro se, as well as any matter in which he has entered an appearance. He alleged that you have "exhibited a bias, prejudice, a conflict of interest, lack of impartiality or the appearance of same." His assertions include the claims that you have entered the courtroom with his estranged wife's former attorney and made a scheduling error in another case in which he was involved. You denied the initial motion to recuse. On January 30, 2008, the attorney filed a second motion to recuse. As grounds for this motion he stated that there has been a clear pattern of corrupt behavior and that the court lacks the minimum competence to sit as a justice in the probate court. In expanding upon his initial allegations, he states that "[r]ats hate sunlight," and "[t]here will be a floodlight shone..." upon your conduct. Not surprisingly, you have found these assertions to be inappropriate and inflammatory. In your Memorandum you found the attorney's statements in his pleadings and on the record to have no basis in fact and to have been made with the intent to discredit the court. For example, in a supplemental memorandum filed in February of 2008 the attorney alleged that you gave a $15,000.00 wedding present to Wife's prior counsel, which you note was an award for counsel fees; an award that was neither challenged or appealed. The wife filed a complaint for modification two weeks later. Both complaints have been scheduled for trial.

The judge sanctioned the attorney with a $500 fine, which was not paid and sought an opinion from the committee regarding a number of questions including whether he should recuse himself and report the matter to disciplinary authorities. The committee gave some guidance on recusal but concluded that the judge must report the lawyer:

In these circumstances, the Committee is of the opinion that you are required to report the attorney to the Board of Bar Overseers because of the false affidavits filed and your concerns that the attorney has compromised his ability to represent his client. Additionally, you may choose to report the attorney even while there are matters pending. In making your decision to recuse you must apply the Lena test. A judge is not automatically disqualified because of the filing of an ethical complaint or because of pending contempt proceedings. You must apply the Lena test in determining whether the line has been crossed. Finally, while the Code does not require you to send the attorney a copy of any report you send to the Board, it may be appropriate to do so.

I am on board with the false affidavit part of the opinion. Is a judge really ethically obligated to report any instance where the judge believes "the attorney has compromised his ability to represent a client?" A slippery slope. (Mike Frisch)

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