Friday, May 19, 2017

Letters, We Get Letters

The Nebraska Supreme Court imposed discipline on a attorney for letters written to a judge

The charges were based on a series of communications sent by [attorney] Gast to Douglas County District Court Judge Peter C. Bataillon and attorney Robert Craig. We conclude that Gast violated these provisions as charged and order that he be suspended from the practice of law for a period of 1 year, to be followed by a period of 2 years’ probation upon reinstatement.

The matter involved litigation between Countrywide Trucking and the State of Florida. 

Judge Bataillon had taken over the case from another judge when that judge retired in 2000. Over the long course of the Countrywide litigation, Gast became very dissatisfied with the rulings of Judge Bataillon. He believed that Judge Bataillon made “blatant errors of law."

Then

In July 2014, Gast’s wife had lunch with the ex-wife of Craig. She told Gast’s wife that Craig and Judge Bataillon (then-attorney Bataillon) had been “best buds.” According to Gast:

[Craig’s ex-wife] related parties, dinner engagements at the Omaha Press Club, and the softball team on which . . . Craig and [then-attorney] Bataillon played. She told me the details, and they would have parties afterwards, and sometimes they would go to bars, and the wives would meet them, and she referred to Bataillon as Pete.

In August 2014, Gast filed a second motion to recuse Judge Bataillon, citing Neb. Rev. Code of Judicial Conduct § 5-302.4 that “[a] judge shall not permit . . . social . . . interests or relationships to influence the judge’s judicial conduct or judgment.” The motion also stated:

This Motion is additionally based upon (among other violations) newly-acquired evidence of this Court’s lack of “impartiality,” lack of “independence,” and lack of “integrity” (as those terms are defined in the Nebraska Code of Judicial Conduct) that existed from soon after the Hon. Peter C. Bataillon inherited this action from the Hon. Michael McGill and that has continuously persisted throughout the period of more than twelve years to the very date of this Motion.

It further alleged that Gast “very recently acquired reliable information that, for a period of at least twenty years prior to the appointment of . . . Judge Bataillon to the Douglas County District Court, a very close personal friendship and continuous social relationship had existed between” Judge Bataillon, Craig, and Craig’s cocounsel. The petition alleged that the relationship was never disclosed by Craig or Judge Bataillon and that “the relationship has been improvidently, unethically and continuously concealed by the Hon. Peter C. Bataillon, Craig and [cocounsel] from the time Bataillon inherited this case . . . until the very present day.” The specific allegations in the motion to recuse included that then-attorney Bataillon and Craig played on a summer softball team together “for approximately three years in the 1970s or early 1980s,” including socializing after games; attended parties together at the co counsel’s home; and attended dinners at the Omaha Press Club.

Following the motion to recuse, Gast sent a letter to Judge Bataillon and Craig (referred to as “exhibit B”). It said, in part:

Now that the truth of your pre-suit relationship has been discovered, the Docket Sheet itself demonstrates the “cover-up” quality to each and every successive refusal to disclose it after your initial failure to do so. Check it out yourselves. It actually takes on a crescendo-like appearance on its very face. The lesson about cover-ups is that they usually come undone eventually, and the consequences to those involved always amplify in direct proportion to their pre-discovery duration. This “coverup” is more than 12 years old! Judge, your responsibility is obvious and it is immediate. . . . You must now recuse sua sponte. And I trust that you will not force me to file the augmented Motion, or to conduct a public hearing on it, or to serve the Subpoenas or to take the Depositions.

Later in August 2014, the court held a hearing on the motion to recuse. At the hearing, Judge Bataillon said, “The only contact that I had with . . . Craig was probably in the early ’80s I played on the same softball team with him for maybe a year or two. That’s it.” Craig did not remember being on the same softball team as Judge Bataillon during the late 1970’s or early 1980’s, but had been told by Craig’s cocounsel that Judge Bataillon had “played some” on the team. Judge Bataillon was not persuaded by Gast’s claims.

He said: At all times I have upheld the law. At all times I have acted fairly and impartially based upon what the evidence has been, based upon what the facts have been, and things of that nature. This allegation that I failed to disclose, there was nothing to disclose that — that rises to any level under the judicial ethics or any of the lawyers in this matter. As such, your motion is overruled.

Letter two ensued

Judge Bataillon, you should realize that you have an ever-so-brief opportunity to quietly back out of this case on a purely technical ground, i.e. one that is not related to misconduct. Before you elect to pass it [sic] up this chance, I respectfully submit that you think very carefully about your own best interests.

(Emphasis in original.) In this letter, Gast references an incident in a prior hearing (after the motion to recuse hearing) in which Judge Bataillon disclosed that he, his wife, and her brother were eating dinner at a restaurant and noticed that Craig was also eating in the restaurant. Judge Bataillon’s wife went over and greeted Craig. Gast said in the letter that Judge Bataillon, his wife, and his brother-in-law were all material witnesses to the “recusal issue.” Gast wrote, “It is also extraordinarily curious that such a meeting with . . . Craig might have occurred purely by chance, at that very time.” He went on to say:

Sir, since all of that makes it “material,” my client is entitled to your own sequestered deposition in the event that you refuse to recuse. Moreover, all conceivable means of conventional and electronic communication between yourself and . . . Craig will have to be subpoenaed, in order to learn just how “chance” the . . . [r]estaurant encounter actually was.

Gast also threatened to depose Judge Bataillon’s wife, his brother-in-law, and Craig, “Unless, of course, you recuse now.” He concluded, “Sir, I know that you will eventually do the right thing. I just pray that it happens in time to do the most justice to the office that you hold.” 

Sanction

Gast seems to lack any appreciation of how serious his violations were and how baseless and inappropriate his attacks on the integrity of Judge Bataillon were. What is troubling is Gast’s inability to see anything wrong with his conduct. His lack of remorse is a significant aggravating factor, as is the serious nature of his infractions.

We also agree with the referee that during the hearing in this case, Gast engaged in unnecessary and inappropriate verbal attacks on the Counsel for Discipline. The Counsel for Discipline has an important job to do in our profession and has performed that job ably in this case.

Follow this link to State ex rel. Disciplinary Counsel v. Gast(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/05/the-nebraska-supreme-court-the-charges-were-based-on-a-series-of-communications-sent-by-attorney-gast-to-douglas-county-di.html

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