Wednesday, July 11, 2018

Facebook Posts Get Justice Admonished

A non-attorney town court justice has been admonished by the New York Commission on Judicial Conduct

In January 2015 respondent, without notice or permission, entered the home of a woman who had defaulted on a mortgage held by an estate of which respondent's wife was co-executrix. Respondent took photographs to document what he considered to be the poor physical condition of the premises, and he posted the photographs on his wife's Facebook account with the comment "Mom and Alton are turning over in their graves," referring to the deceased relatives who left the estate;

On April 6, 2017, respondent publicly posted four of the photographs of the premises on his own Facebook account, as well as six photographs of the residence's interior taken prior to its sale. Along with the "before" and "after" photographs, respondent commented on contrasting the condition of the home before and after the sale, and he stated that the buyer had been in arrears in her mortgage payments. Respondent made the posting in retaliation for the woman's public accusations that respondent and his co-judge had committed judicial misconduct; and

Respondent did not remove the four "after" photographs from his Facebook account until November 13, 2017, following an inquiry by the Commission. As of February 2, 2018, respondent had not removed from his Face book account either the "before" photographs or the comments about the condition of the house or the buyer's mortgage arrearage.

Background

Respondent is married to Joanne Fisher. In 2008, following the death of Ms. Fisher's stepfather, Alton Adams, Ms. Fisher became a co-executrix of his estate ("Estate"). The primary asset of the Estate was a house located at ("Property").

Respondent was not an executor or beneficiary of the Estate and had no legal right to act on its behalf.

In March 2012 the Estate sold the Property to S. The note and mortgage identified the Estate as the mortgagee and provided that S. was to make monthly payments to the Estate until March 16, 2015, at which time she was required to make a "balloon" payment of the outstanding balance. Under the note and mortgage, the Estate's legal remedies, upon a default by the buyer, were to commence summary eviction and/or foreclosure proceedings. The note and mortgage included no provision granting the Estate a right to enter and inspect the Property.

On January 10, 2015, S. was in arrears in her mortgage payments and was not living on the Property. After consulting the Estate's attorney but without providing notice to S. or obtaining her permission to enter, respondent entered the Property, which was in a state of disorder, and took photographs of the premises. The Estate had not commenced legal proceedings against S.

More photos were later posted on Facebook, apparently in retaliation for judicial misconduct complaints filed by S.

The commission

Compounding respondent's misconduct, he inexplicably failed to remove the offensive Facebook post promptly after the Commission questioned him about the matter, despite promising under oath to do so. Although he assured the Commission during his investigative testimony in July 2017 that he would remove the post "this afternoon," he did not remove the four photos taken during his unauthorized inspection of the property until four months later - shortly after the Commission had contacted him again to ask why the post had not been removed - and did not remove the remainder of the post until February 2018. In the meantime, his comments denigrating the property's owner remained on Facebook, and we can assume that more public members would have the opportunity to read them and comment. That was a further injustice to the owner of the property. Respondent concedes that he has "no excuse" for his lengthy delay in removing the post promptly after pledging to do so, and his failure to respond promptly to the Commission's concerns shows a lack of sensitivity to his ethical responsibilities as a judge.

In accepting the jointly recommended sanction publicly admonishing respondent for his behavior, we note that respondent has acknowledged the impropriety of his conduct and has pledged to be more circumspect in the use of social media in the future.

The agreed statement of facts is linked here. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/07/a-judge-has-been-admonished-by-the-new-york-commission-on-judicial-conduct.html

Judicial Ethics and the Courts | Permalink

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