April 12, 2010
Judge Need Not Recuse
The South Carolina Advisory Commitee on Standards of Judicial Conduct opines that a judge need not recuse in the following circumstances:
A retired, active circuit court judge has inquired as to whether or not the judge must recuse himself or herself in the following circumstances. The defendant is before the court on various counts of criminal conduct. Among the accused's victims are family members of the clerk of court. The inquiring judge retired about 18 months after the clerk took office, but has continued in an active retired capacity. The judge had not met the clerk (nor any member of the clerk's family) prior to the clerk's election to office. However, after the clerk's election to office and prior to the judge's retirement, the judge had regular contact with the clerk and the clerk's staff on official business--generally three or four times per week. Since the judge's retirement, the contact with the clerk over the last four years has been less than once a week. The inquiring judge may have met the clerk's spouse since the clerk took office, but no more than one or two times, and the judge has not met any other member of the clerk's family, and has no social contact with the clerk, the clerk's spouse, or members of the clerk's family. The judge has never met the defendant or his family or any other victims of the defendant.
The committee found no basis to conclude that the judge would display a personal bias against the defendant. (Mike Frisch)
Consultant Documents Are Privileged
The New York Appellate Division for the First Judicial Department held that a trial court had properly found that documents prepared by a consultant who had been working with counsel since the inception of litigation were protected by privilege:
Defendants responded to plaintiffs' discovery demands by providing a supplemental privilege log identifying each of the documents withheld on the grounds they were privileged as work performed by its counsel's consultant from the inception of and during the course of a prior action in Arizona arising out of the same facts. The motion court conducted an in camera review of the withheld documents and concluded that they were protected by the attorney-client privilege.
There is no basis to disturb the motion court's ruling that the documents are subject to the attorney-client privilege. The privilege extends to communications of "one serving as an agent of either attorney or client", and here, the documents were generated by defense counsel's consultant retained to assist in handling forensic accounting in relation to the Arizona matter. Furthermore, the documents are subject to the attorney work product privilege. Such privilege extends to experts retained as consultants to assist in analyzing or preparing the case, "as adjunct to the lawyer's strategic thought processes, thus qualifying for complete exemption from disclosure" (citations omitted)
We have considered plaintiffs' remaining contentions, including that defendants waived the ability to assert that the documents were privileged, and find them unavailing.
Enough Evidence To Avoid Disbarment
The Pennsylvania Supreme Court agreed with its Disciplinary Board that an attorney had engaged in multiple acts of misappropriation over a four-year period and repeatedly lied to Disciplinary Counsel. However, the court rejected the board's proposed five-year suspension and suspended the attorney for three years. Two justices would impose the sanction that the board had recommended.
The hearing committee had found that the attorney had established that he suffered from a psychiatric disorder that caused the misconduct and had established mitigation under the so-called Braun standard. Disciplinary Counsel argued to the board that the evidence was insufficient to establish mitigation. The board upheld the hearing committee, finding that "while perhaps not the strongest [evidence] ever rendered in a Braun case, [it] is sufficent to meet the Braun standard." (Mike Frisch)