Wednesday, April 8, 2009

Reckless Disregard

The Wyoming Supreme Court suspended an attorney for two months for violating Rule 8.2(a) by recklessly making false accusations against a judge presiding over a domestic relations matter. The charges of misconduct were predicated on the following language in a motion filed by the attorney:

            5.   That the Respondent was able to acquire a hearing date the very day the Order Reassigning Judge was entered creates an appearance of impropriety.  Add to that fact that Petitioner was apprised Thursday, October 4, 2007, that Respondent had already acquired a trial date with Judge Arnold and would be filing a motion for reassignment post haste.  In other words, the reassignment of this case was a fait d’accompli [sic] as of October 4, 2007.  [Emphasis deleted.]

            How can an attorney have gotten a trial date from a judge who was not assigned to the case?  That could only be done by having engaged in improper ex parte communications with the court.  This means that opposing counsel had to have engaged in professional conduct that is not allowed by Rule 3.5(a) and (b), Rules of Professional Conduct.  This Rule provides that a lawyer “shall not seek to influence a judge . . . by means prohibited by law” and “shall not communicate with an official acting in an adjudicative capacity concerning any substantive or procedural issue before him, or which is likely to be before him, unless authorized to do so by law or court order.”  Opposing counsel could not know that the case would be reassigned without having already received assurance from the court that [R]espondent’s motion would be granted and that a specific hearing date would be set.

            Consider, too, that Canon 3B(7)(a)(i) of the Judicial Code of Conduct provides:

“Where circumstances require, ex parte communications for scheduling . . . that do not deal with substantive matters or issues on the merits are authorized, provided:  (1) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication; and (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.”

            It is obvious enough that Respondent filed his reassignment motion to achieve a procedural and tactical advantage.  Yet no one notified the Petitioner of opposing counsel’s communications with Judges Arnold or Campbell at the time those communications occurred much less took any action to determine whether Petitioner would stipulate to the reassignment of the case or to the trial date.  In each instance that there was a contact between opposing counsel and the court, Petitioner should have been contacted by opposing counsel or the Judge’s office.

            6.   It has been rumored that if one is affiliated with [opposing counsel’s law firm], favoritism may be accorded her by Judge Arnold or those in his office.  Because opposing counsel is with the law firm [], Petitioner believes that favoritism was at play here.

            7.   Canon 2, Code of Judicial Conduct, provides that a judge shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, i.e., a judge shall avoid the appearance of impropriety in all of the judge’s activities.

 The court found that the allegations of favoritism were protected by the First Amendment but:


The clear and convincing evidence in the record that Judge Arnold did not have an ex parte communication with Respondent’s opposing counsel is the direct statement, under oath, by both the judge and the attorney that they did not speak to one another, along with the clear explanation that the hearing date was obtained from Judge Arnold’s assistant.  It is this same testimony that shows Respondent’s reckless disregard for the truth.  Before filing the motion and making the false accusations, she could have made appropriate contact with Judge Arnold, or Judge Campbell, or her opposing counsel, or Judge Arnold’s administrative assistant, but she did none of those things.  Her reckless action violated Rule 8.2(a) of the Rules of Professional Conduct.


(Mike Frisch)

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