Tuesday, November 24, 2015

No Leadership Role For Judge

It has been a quiet few months for the venerable Florida Judicial Ethics Advisory Committee.

No longer

Opinion Number: 2015-12
Date of Issue: November 3, 2015


 May a judge assume the position of officer of an organization, with the view that the judge would move up the officer ranks to the presidency, where the organization’s stated purpose is to benefit the families of law enforcement officers and firefighters in circumstances where the officers and firefighters lost their lives in the line of duty?



The inquiring judge wants to know whether the inquiring judge can accept this leadership position. This discussion starts with the consideration of the Florida Code of Judicial Conduct, Canon 2A, which instructs that judges must avoid all appearances of impropriety. “The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Commentary to Canon 2A.

Previously this Committee found in Florida Judicial Ethics Advisory Committee Opinion 94-15 that it would be improper for an inquiring judge to be on the Board of Directors of the Police Officers Assistant Trust. “A majority of our members, however, feel that the title of the organization would identify it to be a prosecution oriented group and for a judge to be a member would be in conflict with the neutrality required of judges.”

This Committee found in Florida Judicial Ethics Advisory Committee Opinion 00-04 that a hearing officer would violate the Code of Judicial Conduct by raising an appearance of impropriety, if the hearing officer attended a local police department’s Citizens Police Academy. Although the facts differ in this matter with Opinion 00-04, the underlying rationale is instructive.

The Committee found that the “prolonged, familiar contact” that was part of the Citizens Police Academy “may create a reasonable perception that casts doubt on the hearing officer’s impartiality, interfere with his/her duties, and detract from the dignity” of the office. If the inquiring judge became an officer of the organization with the view of moving up the ranks, that could also create a reasonable perception that could cast doubt on the impartiality of the inquiring judge.

Therefore, the Committee believes the inquiring judge should not accept this officer position with this organization.

Additionally, although not asked by the inquiring judge, the Committee has insufficient information to say whether the inquiring judge’s membership in this organization is permissible or not. We cannot take a position on membership in this organization by the inquiring judge, without more information regarding the particulars of this organization.

(Mike Frisch)

November 24, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, November 17, 2015

Zacharias Prize Recipients Named

Samuel Levine of Touro Law Center has announced that the winners have  been selected for the sixth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  The Prize will be awarded to Elizabeth Chamblee Burch, for her article Judging Multidistrict Litigation, 90 NYU L. Rev. 71 (2015), and Morris A. Ratner, for Class Counsel as Litigation Funders, 28 Geo. J. Legal Ethics 271 (2015). The Prize will be awarded at the AALS Annual Meeting in New York in January. Congrats! (Alan Childress)

November 17, 2015 in Judicial Ethics and the Courts, Law & Business, Professional Responsibility | Permalink | Comments (0)

Tuesday, November 10, 2015

Undignified Behavior Caught On Tape

The North Carolina Supreme Court publicly reprimanded a general court of justice judge for inappropriate behavior in a divorce case by

exhibiting a failure to remain patient, dignified, and courteous to the parties appearing before him; making inappropriate comments to the parties before him; misstating the law when threatening future contempt proceedings; improperly exercising his contempt powers thereby denying multiple parties their fundamental rights of due process; and failing to maintain order and decorum in the proceedings before him.

Some details

Respondent presided over a contentious multi-day custody hearing in Morrison v. Morrison, which concluded on 7 August 2014[.] Durham County routinely records each of its domestic court sessions with audio and visual equipment. The recording in Durham County File No. 14-CVD-47 shows, after hearing all the evidence and before announcing a decision, Respondent[ ]was not patient, dignified, nor courteous with the parties before him. In a raised voice and sharp tone, Respondent proceeded to lecture both Mr. and Mrs. Morrison. During this soliloquy, Respondent made several inappropriate comments including repeatedly and loudly chastising the parties that they were acting like idiots. Respondent admitted during his 22 December 2014 interview with Commission staff, that he “said all of those things.”

At a later proceeding he threatened contempt 

“And I better not hear either of you saying anything negative about the other party or y’all gonna get a little trip to the Durham County Bed and Breakfast for contempt of court. And there is no appeal, you stay until I say you get out.”

That was a reference to the jail.

The effects from Respondent's misconduct in this matter have been exacerbated by the video footage capturing the events of this hearing. Because Respondent's comments and Ms. Morrison's outburst were captured on video, this incident was highly publicized with media coverage both locally and nationwide. In addition to the facts as set forth in this Stipulation, Respondent agrees the Durham County court video recording of this matter will also be included in the evidentiary record for these Judicial Standards inquiries.

For the above reason, video of judicial behavior may have the value of body cams for police. (Mike Frisch)

November 10, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, October 21, 2015

Overcharging For Marriages

The New York Commission on Judicial Conduct accepted the resignation of a Yonkers City Court judge who had been served with a complaint alleging misconduct.

The stipulation recites that he was charged with contacting third parties and using his judicial title in connection with his daughter's divorce.

He also charged double the prescribed rate for officiating at marriages. (Mike Frisch)

October 21, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, October 19, 2015

Judge Approved Law Clerk Payments; Resigns

 The New York Commission on Judicial Conduct entered into a stipulation accepting the resignation of an elected Supreme Court Justice who had improperly approved guardianship payments to her "confidential law clerk" that were pending before other judges of the court.

the Commission, on its own motion, authorized a second investigation based on a report of the Inspector General for the Unified Court System, alleging inter alia that Judge Lewis failed to adequately oversee and review Ms. Detherage's work as a guardian, and improperly continued to preside over three of Ms. Detherage's matters and approved a guardianship payment to her after hiring her as her full-time law clerk.

The investigation was initiated based on news reports concerning the judge's conduct.

The decision and order are linked here.

The New York Times covered the story. (Mike Frisch)

October 19, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, October 14, 2015

Judge Removed From Office For Residence Violation And False Statements

The Minnesota Supreme Court has removed a judge from office for his failure to reside in his judicial district and false statements regarding his residence.

Judge Pendleton is married, and his wife resides in Minnetonka. The couple married in September 2007, and except for a brief period in 2008, they maintained separate residences until November 2013.

Beginning in 2012, Judge Pendleton lived in a townhouse in Anoka. In 2013 he decided to sell the Anoka townhouse, primarily for financial reasons. He listed the townhouse for sale in October 2013 and soon had a buyer. The sale closed on November 27, 2013.

On November 27, 2013, Judge Pendleton moved out of the Anoka townhouse and began staying at his wife’s house in Minnetonka, which is in the Fourth Judicial District. Judge Pendleton moved the items from his Anoka townhouse into a storage unit in Hopkins, which is also in the Fourth Judicial District. He told someone from the moving company that he intended to find a new apartment in Anoka quickly, and that he would soon call the company to move his items back to Anoka. The billing invoice from the company that moved Judge Pendleton’s furniture reflects this conversation. But Judge Pendleton did not contact the company soon after he moved. Rather, he stayed at his wife’s house until August 1, 2014.

From late November 2013 through December 20, 2013, Judge Pendleton looked for an apartment in Anoka. He was on vacation from December 20, 2013, through January 6, 2014. When Judge Pendleton returned, he was out sick from work for several days. He returned to work on Monday, January 13, 2014.

On January 15, 2014, Judge Pendleton learned that his son had been caught with drugs and drug paraphernalia at school in Anoka, and that his grades had dropped dramatically. Judge Pendleton met with representatives of his son’s school and sought drug treatment and tutoring for his son. By the end of January, Judge Pendleton’s son was enrolled in drug counseling and intensive tutoring.

Judge Pendleton spent several evenings a week, taking his son to dinner and then to either treatment or tutoring. Judge Pendleton and his former wife discussed the possibility of moving their son from the Anoka school to a school in Andover. In order for their son to attend school in Andover, one parent would need to relocate to the attendance area for that school.

Judge Pendleton and his former wife agreed to defer the decision on changing schools until they could evaluate how their son was doing in treatment and at school, but they did not set a deadline for making that decision. Judge Pendleton made no attempt to find housing in the Tenth Judicial District from mid-January 2014 through the end of May 2014. Judge Pendleton admitted that he made a “choice” not to search for new housing in the Tenth Judicial District while the issues with his son were unresolved. He acknowledged that he could have found housing in the Andover attendance area, which would have preserved both school options for his son because his former wife lived in the Anoka attendance area, but he thought that was not a “good option” because it would have made no sense for him to live in Andover if his son went to school in Anoka. He also testified that he did not explore the possibility of a short-term lease in his judicial district because he was “focus[ed] on [his] son” and “did not know how long th[e] process [would] take” “[w]hen [he] put the search on hold.”

The court affirmed findings that he made false statements on judicial affidavit of candidacy.

As to sanction

Considering the totality of the circumstances of this case, we hold that Judge Pendleton must be removed from office. Judge Pendleton committed two very serious violations. Each of his violations severely undermines the public’s trust in their judicial system. When we assess Judge Pendleton’s violations and the cumulative impact his misconduct has on the public’s faith in the integrity of the judicial system, we conclude that the sanction of removal from office is the only sanction adequate to ensure that the people of Minnesota can have continued faith in the integrity of their justice system.

Justice Stras would impose a censure and six-month suspension without pay. (Mike Frisch)

October 14, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, October 5, 2015

Out Of Their League

The Connecticut Appellate Court has affirmed the judgment in a case where the plaintiff had appealed the trial judge's decision not to recuse himself.

The case started with the Darien Little League's decision to move the plaintiff's son from the advanced to the intermediate league.

The plaintiff claimed that this heartless move was made in retaliation for her work to bring affordable housing to Darien.

She sued for defamation when the league responded.

The recusal issue

The matter proceeded to a court trial on January 14, 2014, nearly three years after the commencement of this action. At its outset, the plaintiff offered her own testimony in narrative form. Early in that testimony, the plaintiff described a parcel of land owned by ‘‘a longtime Darien Little League board member [who] was not a board member’’ at the time that the allegedly defamatory statements were published. When the plaintiff then identified that property owner as ‘‘Mr. Mark Gregory,’’ the court, Hon. Taggart D. Adams, judge trial referee, stated, ‘‘All right. I need to take a break here.. . . Mark Gregory was a lawyer who worked with me and for me for a number of years at a law firm in Stamford. I left that law firm fourteen or fifteen years ago. He became a partner in that firm . . . after I left, much to my delight. He has subsequently left that firm as well. I consider him to be a good friend of mine as well as a longtime working associate. . . . [I]n fact, I had lunch with him and another attorney . . . a couple of weeks before Christmas, sometime in December. And I have recused myself from a case . . . in which [Gregory] was representing a  from this case if [Gregory’s] involvement is significant in any fashion whatsoever. I don’t want to recuse myself because we’ve done a lot of work here this morning. But I would be interested, what I’m going to do is take a recess now. . . . I’d like the parties and counsel to consider whether I should recuse myself. I’m considering it. And that may help me in my consideration or it may not. But I was not aware that [Gregory] was involved in this case whatsoever.’’

After hearing argument, the judge declined to recuse himself.

The court agreed that recusal was not required

We conclude that the plaintiff has not met that burden. Gregory was not a party to this action and did not serve as counsel to either party. Gregory further was not a witness at trial, nor was he the subject of the many subpoenas issued by the plaintiff. Perhaps most significantly, there was no allegation in the pleadings, and no evidence adduced at trial, that Gregory was involved in the publication of the allegedly defamatory statements by the defendant. The plaintiff herself informed the court that she had no knowledge as to whether Gregory was so involved; rather, she simply was ‘‘troubled’’ that some members of the community, including one associated with the defendant, allegedly ‘‘empathized with’’ Gregory’s opposition to her affordable housing proposal. We therefore are confronted with a claim of impartiality stemming from a judge’s relationship with a person tangential to the material issues to be decided by the court.

Strike out!

Apropos to nothing but the first time I ever heard of Darien Connecticut was as a child reading the wonderful book and seeing the wonderful movie Auntie Mame. (Mike Frisch)

October 5, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, October 4, 2015

Nevada Supremes Instruct On Dealing With Allegations Of Attorney Misconduct In Civil Litigation

The Nevada Supreme Court has provided guidance to lower courts with respect to the proper trial and appellate court approach to attorney misconduct

After the jury rendered a verdict in favor of the [defendant] manufacturer, the plaintiff filed a post-trial motion seeking a new trial based upon alleged misconduct committed by the manufacturer's attorney. The district court denied the motion, but failed to make the detailed findings required by the Nevada Supreme Court.

The Nevada Supreme Court recently issued two opinions clarifying how claims of attorney misconduct must be handled both by the district court and subsequently on appeal. In this opinion, we take the opportunity to summarize those recent developments and to provide guidance to district courts tasked with resolving claims of misconduct. Because the district court in this case failed to make detailed findings regarding the alleged misconduct that might have enabled us to determine whether those cases would have affected its decision, we must remand the case to the district court to reconsider its decision in light of those cases and to make the necessary findings. To assist the district court, we identify some factors that must be considered on remand.


When a party claims misconduct by opposing counsel, the legal standard under which that misconduct is reviewed depends on whether a timely trial objection was made. See Lioce, 124 Nev. at 17-19, 174 P.3d at 980-82. When a timely objection was not made at trial, any review of that misconduct, either post-trial by the trial court or on appeal, is considerably more circumscribed than if an objection was made. When resolving a motion for a new trial based on unobjected-to attorney misconduct, "the district court shall first conclude that the failure to object is critical and the district court must treat the attorney misconduct issue as having been waived, unless plain error exists." Id. at 19, 174 P.3d at 982. To decide whether there is plain error, the district court must then determine "whether the complaining party met its burden of demonstrating that its case is a rare circumstance in which the attorney misconduct amounted to irreparable and fundamental error." Id. And "[lin the context of unobjected-to attorney misconduct, irreparable and fundamental error is error that results in a substantial impairment of justice or denial of fundamental rights such that, but for the misconduct, the verdict would have been different." Id. Thus, in this case, because no objection was lodged at trial, a new trial would only be warranted if Pentair committed misconduct and the misconduct amounted to "plain error."

Trial courts must

On remand, the district court must clarify, at a minimum, whether it found that no misconduct occurred or rather whether it concluded that misconduct did occur but was harmless under the standards of Lioce in view of: (1) the nature of the claims and defenses asserted by the parties; (2) the relative strength of the evidence presented by the parties; (3) the facts and evidence that were either disputed or not substantively disputed during the trial; (4) the type, severity, and scope of any attorney misconduct; (5) whether any misconduct was isolated and incidental on the one hand or repeated and persistent on the other; (6) the context in which any misconduct occurred; (7) the relationship of any misconduct to the parties' evidence and arguments; and (8) any other relevant considerations...when serious and repeated attorney misconduct has demonstrably occurred, the district court's deference to the jury is more limited than if such misconduct had not occurred, and the trial court must carefully consider whether the misconduct led the jury astray and caused it to base its verdict upon something other than the evidence and the applicable law.

The case involves a products liability action against a manufacturer of swimming pool filters. An explosion had cost the plaintiff an eye. (Mike Frisch)

October 4, 2015 in Judicial Ethics and the Courts, Professional Responsibility, The Practice | Permalink | Comments (0)

Friday, October 2, 2015

Judge Who Required Indigents To Perform Public Service To Get Appointed Counsel Reprimanded

A public reprimand was imposed by the Tennessee Board of Judicial Conduct for misconduct described in The Tennesean as practices he will no longer engage in.

As part of the order, Holley agreed to the following items:

• To stop requiring defendants to perform public service work in order to be granted the right to have appointed counsel;

• He shall not as a requirement of probation or to obtain appointed counsel, allow defendants to make donations of items to certain charities specified by him;

• He shall not sentence defendants to jail time for contempt for failing to complete public service work previously ordered for the appointment of counsel;

• He shall not deny appointed counsel to individuals who have made bond, if they request appointed counsel, without regard for their personal financial means; or revoke the bonds of individuals who had made a bond solely because they requested appointed counsel;

• He shall not order cash only bonds in violation of established law;

• He shall not require the waiver of the constitutional right to counsel and a jury trial in order to grant a defendant’s request for a continuance;

• And he shall not refuse the request of defendants for appointed counsel without conducting an indigency hearing.

The judge has agreed to cease and desist these practices.

More on the controversy from WKRN Nashville. (Mike Frisch)

October 2, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

The Healing Effect Of Time

The Ohio Supreme Court has determined that a judge need not recuse himself in a proceeding involving a former client

Herman A. Carson, counsel for defendant Roscoe Campbell, has filed an affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify Judge Brett M. Spencer from the above-captioned case, now pending for resentencing.

Carson claims that in 2005, Judge Spencer recused himself from a case involving defendant Campbell due to a “professional conflict.” Carson states that his client, defendant Campbell, believes that if a conflict existed in 2005, then the same conflict should mandate Judge Spencer’s disqualification from the underlying matter. Accordingly, Carson avers that he filed the affidavit of disqualification at the direction of his incarcerated client.

Judge Spencer has responded in writing to the affidavit, denying any bias or prejudice in this case. Judge Spencer explains that years prior to taking the bench in February 2005, he represented Campbell in a traffic matter. In August 2005, the judge recused himself from a case involving Campbell to avoid any appearance of sympathy for a former client. However, by 2012, when the underlying case commenced, Judge Spencer determined that given the amount of time that had passed since he had represented Campbell, his recusal was no longer necessary in cases involving Campbell. The judge is confident that when he was assigned this case in 2012, he addressed this potential conflict with Campbell and his then defense counsel.

The court concluded that the issue had been waived and was meritless

[The former client] made no attempt to show that Judge Spencer harbors bias against Campbell stemming from the judge’s representation of Campbell in an unrelated traffic matter over a decade ago. Additionally, “a judge’s voluntary removal from an earlier case does not, by itself, support disqualification from an unrelated case involving that same party or attorney.” In re Disqualification of Celebrezze, 135 Ohio St.3d 1218, 2012-Ohio-6304, 985 N.E.2d 499,

Judge Spencer has sufficiently explained the circumstances that caused him to recuse himself from Campbell’s 2005 case, and he reasonably concluded that recusal is no longer necessary.

(Mike Frisch)

October 2, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, October 1, 2015

Removed Attorney Lacks Standing To Seek Judge's Disqualification

Although it found the trial judge's conduct troubling, the Ohio Supreme Court held that an attorney removed from a case lacked standing to seek disqualification of the judge.

Here, Judge Gaul removed Wolpert as counsel in the underlying case and assigned the public defender’s office to represent defendant. Because Wolpert is no longer counsel in the case, he is not one of the persons who may file an affidavit of disqualification.

The circumstances

Wolpert filed the affidavit after Judge Gaul issued entries removing Wolpert as defendant’s attorney in the underlying case, appointing the public defender’s office to represent defendant, and barring Wolpert from appearing in his courtroom until Wolpert “clearly demonstrates to the Court that he is receiving effective Mental Health Services.”

Judge Gaul has responded in writing to the affidavit, explaining that due to a series of recent events, he has concluded that Wolpert is currently unfit to practice law and unable to provide effective assistance to his clients. Therefore, the judge barred Wolpert from appearing in his courtroom.

Bad move because

a trial court’s blanket ban on an attorney’s practicing before the court generally violates this court’s exclusive jurisdiction over attorney-disciplinary matters.

The judge had had a brush with discipline himself, according to the web page of the Ohio Supreme Court.

In a 4-2 per curiam decision, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that Gaul improperly attempted to initiate an “Amber Alert” for two witnesses who had failed to appear for the defendant’s scheduled trial, and made improper public statements in court and during an in-chambers meeting with the news media in which he asserted his belief that the defendant had intimidated or interfered with the missing witnesses when there was no factual evidence in the record to support those assertions. The Court agreed with the disciplinary board’s conclusions that Gaul’s actions constituted conduct prejudicial to the administration of justice, manifested bias against the defendant, and called into question his own impartiality and the fairness and impartiality of the judicial process.

The court stayed a six-month suspension.

In a separate matter, the court found that disqualification of judge was not required despite the fact that the judge had testified against the criminal defendant in a fee dispute. 

[Defendant] Patterson asserts that Judge Huffman testified against him in a fee dispute arbitration hearing and therefore an appearance of impropriety exists if she decides his pending posttrial motion. Additionally, Patterson avers that Judge Huffman demonstrated bias and prejudice against him during the underlying case. Judge Huffman has responded in writing to the affidavit, denying any bias against Patterson and vowing to decide the pending motion based on the law. For the following reasons, no basis has been established to order the disqualification of Judge Huffman...

Judge Huffman acknowledges that she testified at the fee-dispute hearing, which was held at the office of the local bar association. Judge Huffman further explains that she was subpoenaed to testify, she did not appear on behalf of or against either party, she had no interest in the outcome, her entire testimony lasted about ten minutes, and her testimony was limited to issues surrounding the number of court hearings in the underlying case and the amount of time Patterson’s former counsel had spent in court. The judge expressly denies that she testified about the quality of representation provided by Patterson’s former counsel. On this record, no reasonable and objective observer would question Judge Huffman’s impartiality merely because she was subpoenaed to testify about limited issues in a fee-dispute hearing conducted by a local bar association.

(Mike Frisch)

October 1, 2015 in Judicial Ethics and the Courts | Permalink | Comments (1)

Tuesday, September 22, 2015

Clerk's Cousin As Witness Does Not Disqualify Magistrate

From the South Carolina Advisory Committee on Standards of Judicial Conduct

OPINION NO. 3-2015

RE:      Propriety of a full-time magistrate presiding over a case in which the Sheriff’s Deputy acting as the prosecuting officer is also the cousin of magistrate’s criminal clerk.


The criminal clerk of a full-time magistrate is the cousin of a Sheriff’s Deputy.  The Deputy sometimes appears as the prosecuting officer in Magistrate’s Court.  On several occasions, the inquiring magistrate has met the Deputy, when the Deputy came by the magistrate’s office in his official capacity.   The magistrate inquires as to whether disqualification or any disclosures are required when the Deputy appears as prosecuting officer before the magistrate.


A full-time magistrate is not disqualified from presiding over cases in which the prosecuting officer is the cousin of the magistrate’s clerk. 


Canon 3E(1) states that a "judge shall disqualify himself or herself in a proceeding where his/her impartiality might reasonably be questioned."   Canon 3E includes certain instances where a judge’s impartiality, including (but not limited to) where the judge has a personal bias against a party or attorney; where the judge served as a lawyer in the controversy; where the judge, judge’s spouse, or other family member in the judge’s household has an economic interest that could be affected by the proceeding; and/or where the judge’s spouse or family member within three degrees of relationship appears as a party or attorney to a proceeding.1  In Op. No. 10-2004, this Committee considered whether a circuit court judge must recuse himself or herself if the judge’s first cousin appeared as either an attorney or a material witness in a case.  We determined that since a cousin was not within the "third degree of relationship," disqualification was not required (although we did advise the judge to disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the disqualification, and provide the parties the opportunity to object).

In this situation, the Deputy is not related to the magistrate at all, and is only a cousin to the magistrate’s clerk.  Furthermore, from the facts presented, the magistrate does not appear to have a personal friendship to the Deputy that would create the appearance that the magistrate’s impartiality had been affected.  (In contrast, see. Op. No. 17-2002, in which this Committee determined that a municipal judge should disqualify himself in a proceeding in which his girlfriend, a police officer, appeared).  Thus, the magistrate is not required to disqualify himself or herself or make any disclosures when the Deputy appears before the magistrate as the prosecuting officer.

 (Mike Frisch)

September 22, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, September 16, 2015

Judge Suspended With Pay

A Minnesota judge has been suspended with pay by the state Supreme Court.

The Star Tribune reported on allegations against the judge

A state board’s investigation has found that an Anoka County judge failed to live in his judicial district, a violation of Minnesota’s Constitution.

Last week, the Board on Judicial Standards filed a formal complaint against District Judge Alan Pendleton for living in his wife’s house in Minnetonka, which is in Hennepin County, for eight months starting in December 2013. The board has asked the state Supreme Court to appoint a three-person panel to conduct a public hearing on the matter.

The panel could dismiss the case or recommend that the Supreme Court issue an order for censure, suspension or other sanction.

The case is not without precedent. In 2011, Hennepin County District Judge Patricia Kerr Karasov was censured and suspended without pay for six months for a similar offense. She is no longer an active judge.

In his six-page response to the board, Pendleton strongly denied the allegations. He said he did stay temporarily at his wife’s house during the time stated by the board, but it was so that he could find a new residence in Anoka County and handle personal and school issues involving his son.

Pendleton also attacked the board’s investigation, describing it as perfunctory. He said the board failed to disclose that it was the complainant in his case, didn’t give him proper notice when he was ordered to testify and asked improper questions about his sex life. It is highly unusual for the board to be a complainant in such a case.

Thomas Vasaly, the board’s executive secretary, didn’t return repeated calls for comment Friday. Doug Kelley, Pendleton’s attorney, said his client “always intended to return to and reside in his judicial district.”

He pointed out that when the Supreme Court issued its discipline against Karasov, the justices said an inquiry into residency must be “highly fact-specific” and consider the judge’s physical presence and intent to reside with the judicial district.

“The judge took a number of concrete steps to look for an apartment and did it before he ever knew he was being investigated by the board,” Kelley said.

Ventura appointment

Pendleton, 59, was appointed to the Tenth Judicial District by former Gov. Jesse Ventura in 1999.

He received an outstanding judge award from the state’s District Judges Association in 2012 for his commitment to improving the judicial system and promotion of judicial efficiency.

“I’ve been blessed. Oh, not by this honor, which I was not expecting at all and means a great deal to me,” he said in a Star Tribune article when he received the award.

“I’m tremendously honored to be part of this profession, to be a small part of the legal system. The recognition embarrasses me a little. It’s the system that I love.”

The panel for Pendleton’s public hearing will consist of a judge, an attorney and a civilian not involved in the legal field. The board filed its complaint against him Oct. 31.

The board received information concerning Pendleton in July and met with him a month later.

From July 2012 until November 2013, he owned a condominium in Anoka, it found.

He then sold it and moved into his wife’s house. In August 2014, he started to rent an apartment in Anoka County.

When Pendleton filed his affidavit to run for re-election for his judicial office this year, he wrote down the address of the condominium he no longer owned.

Pendleton’s response to the board said he received assurances from them that his living arrangements complied with ethical requirements respecting judiciary residency.

He added that the board’s investigation was limited to looking up real estate tax information about his wife’s home and trying to view pictures of it on Google Maps.

Family issues

He sold his condominium to save money and move closer to his children’s high school and moved his personal possessions to a storage unit and temporarily stayed with his wife while he searched for a new apartment, he said.

He argued that that doesn’t constitute moving from the district as defined by law and interpreted by the Supreme Court in the Karasov case.

In January 2014, one of Pendleton’s children had some personal problems, which caused the judge and his ex-wife to discuss moving the child to another school. Because it was a major decision, Pendleton stayed with his current wife in Minnetonka as the family considered options, he said.

Once the issue was resolved, he promptly located an apartment near his children’s high school, he said.

His apartment unit was under renovation, which delayed his occupancy for two months.

Pendleton added that he mistakenly listed his condominium address on his candidacy affidavit and that it’s optional for judges to list it.

The suspension is effective until the court decides appropriate discipline. (Mike Frisch)

September 16, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, September 10, 2015

Dress Code For Florida Judges: Go With Basic Black

Amendments adopted by the Florida Supreme Court provide that

During any judicial proceeding, robes worn by a judge must be solid black with no embellishment.

The reasoning

The Court, on its own motion, adopts new Florida Rule of Judicial Administration 2.340 (Judicial Attire) to govern judges’ attire during judicial proceedings.  The demeanor of judges in a public courtroom, including the attire they wear there, is a crucial indicator of the seriousness of the judicial office and of the proceedings. In this regard, this Court has a major responsibility to provide leadership and direction to advance the judicial branch’s ongoing effort to enhance public trust and confidence in the third branch of government. As part of this responsibility, we adopt new rule 2.340 to provide guidance to Florida’s judges and emphasize that the attire worn by judges during judicial proceedings must promote public trust and confidence in the proceedings and the judicial system as a whole...

Presiding judges wearing different colored robes or robes with varying embellishments could result in uncertainty for those coming before our courts and serve to counter the efforts the branch has employed to gain the public’s trust. For example, one could question whether there is a “status” attributed to the varying colors or embellishments worn by different judges, e.g., whether the color or embellishment denotes a rank of judge based on tenure, ability, or some other factor—is this judge more or less qualified or maybe the chief judge? Depending on the color or pattern of the robe or the type of embellishment worn, some may wonder whether the presiding judge is a “real judge” or whether the judge will take the proceedings seriously. Robe color also could be seen as a reflection of a judge’s mood or attitude that day. Should a defendant facing the death penalty feel trepidation when the presiding judge appears in a red robe or feel more at ease when the robe is green? The possibility that the unique attire of the judge assigned to one’s case could raise these concerns and thereby diminish public trust and confidence in the proceedings is not acceptable.

The public should not have to guess as to the meaning of different colored, patterned, or embellished robes. Promoting uniformity in judicial attire, by requiring all judges to wear unembellished, solid black robes, will no doubt avoid these concerns and promote public trust and confidence. The people of Florida have a right to expect equal justice every day, in every court in this state, and should not have to question whether equal justice is being dispensed based on the color of a judge’s robe.

(Mike Frisch)

September 10, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sign Of The Times

The Florida Supreme Court has ordered a circuit court  judge to appear before it to receive a public reprimand

The first incident occurred on or about June 2, 2014. Upon seeing an opponent’s campaign sign in a convenience store, Judge Schwartz asked to speak with the store’s owner. She was told that the owner, Mr. Firas Hussain, was not there but that he might be back later that day or the next day.

That night, Judge Schwartz returned to the convenience store to speak with Mr. Hussain and to request that he display her campaign sign. When Mr. Hussain refused to display Judge Schwartz’s campaign sign, she lost her temper. Before leaving the store, Judge Schwartz used profanity and threatened to sue Mr. Hussain.

In the second incident, while presiding over a case, Judge Schwartz wrote notes on pages of scrap paper and on original documents contained in the case’s court file. One of the parties reviewed the court file and photocopied the judge’s notes. Later, that party requested a certified copy of the pages that contained the notes. Upon receiving the party’s request, Judge Schwartz instructed her bailiff to remove those pages from the court file. After reviewing the uncertified copies of Judge Schwartz’s notes, the party filed a motion to disqualify her from the case. Judge Schwartz denied the motion. Judge Schwartz testified that she instructed her bailiff to remove the pages containing her notes from the court file and place them in an envelope. The missing pages were never found.

The judge stipulated to the violations. She must also pay a fine and write a letter of apology.

The Miami Herald reported that the judge told the store owner to "Go f--- yourself." (Mike Frisch)

September 10, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, September 8, 2015

Outside The Window

Two judges have been admonished for similar conduct by the New York State Commission on Judicial Conduct.

The commission's press releases are linked here and here.

From 2006 to 2013 Judge Fleming directly and/or indirectly through his law firm made 71 ticket purchases totaling $11,960.55, and two ticket purchases through his spouse totaling $400, to politically sponsored dinners or functions, outside the judge’s “window period”1 of permissible political activity. The judge’s law firm also made 27 prohibited contributions totaling $12,533.48 to political organizations and candidates.

The Commission noted that the Rules, Advisory Opinions and its own decisions over the years have long made it clear that judges may not directly or indirectly make political contributions, with certain narrow exceptions applicable to a limited time when they are running for office.

One Commission member dissented. Richard D. Emery argued that the rule prohibiting political contributions by judges was inconsistent with the First Amendment.

The Commission addressed Mr. Emery’s dissent, noting that the Court of Appeals has upheld the constitutionality of the contributions rule.

Judge Fleming has served as a Justice of the Hamburg Village Court since 2006. His current term expires on April 2, 2018.


From 2003 through January 2014, Judge Sakowski directly made 69 prohibited political contributions totaling $20,633, and another 36 totaling about $2,851 through his law firm. Twenty-seven of the contributions by his law firm were for tickets to politically sponsored events outside the judge’s “window period”1 of permissible political activity.

The Commission noted that the Rules, Advisory Opinions and its own decisions over the years have long made it clear that judges may not directly or indirectly make political contributions, with certain narrow exceptions applicable to a limited time when they are running for office.

Three Commission members dissented. Richard D. Emery and Joseph W. Belluck argued that the rule prohibiting political contributions was inconsistent with the First Amendment, and

Richard A. Stoloff argued that the rule should not apply when the contribution is to a national political campaign.

The Commission addressed both dissents, noting that the Court of Appeals has upheld the constitutionality of the contributions rule, and that there is no exception in the rules for national campaigns.

Judge Sakowski has served as a Justice of the Elma Town Court since 1980. His current term expires on December 31, 2015.

The "window" period

The Rules Governing Judicial Conduct permit a publicly announced candidate for elected judicial office to purchase two tickets to a politically sponsored dinner or other political function only during his or her “window period,” defined as a period of nine months before the selection of candidates to six months after the primary, convention, caucus or general election.

The full opinions are linked here and here. (Mike Frisch)

September 8, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

The Book Thief

An elected Vermont judge was reprimanded as a result of his lengthy course of conduct involving small thefts from three stores.

No greater sanction was imposed in light of his resignation from office.

Vermont Today reported on the judicial complaint

A former Washington County assistant judge who is accused of stealing items from three Montpelier businesses over several years says he has no explanation or excuse.

The state’s Judicial Conduct Board is investigating a formal complaint against Karl Barney Bloom, 71, and could sanction him. Bloom served as an assistant judge for 15 years before retiring in July.

Bloom acknowledged in a phone interview Monday that he knew what he was doing was wrong. He said there was no explanation he could easily give. “We’re all like the moon,” he said. “We have a side that no one sees.”

The complaint says Bloom took newspapers and soup from Uncommon Market without paying for them. After the owners of the market confronted Bloom, the complaint says, he paid the market $500 as compensation and agreed to donate $500 to Kellogg-Hubbard Library in Montpelier.

He also took books and magazines from Bear Pond Books without paying for them, according to the complaint. On Dec. 14, 2012, the complaint says, the bookstore owners confronted Bloom when he tried to walk out with a book in his coat pocket for which he hadn’t paid. A few days later, Bloom was given a no-trespass order saying he had to stay out of Bear Pond Books, according to the complaint.

The third business was Capitol Grounds, where the complaint says Bloom, “on multiple occasions,” would take coffee without paying for it over the past three years.

He is barred from future judicial office. (Mike Frisch)

September 8, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Final Discipline Awaits Convicted Former Judge

The Ohio Supreme Court has suspended a former judge convicted of a felony offense.

Newsnet 5 Cleveland had this report

According to an affidavit released by Shaker Heights Municipal Court, Cuyahoga County Common Pleas Judge Lance Mason punched his wife repeatedly, choked her and bit her at around noon Saturday on Van Aken Boulevard near Glencairn Road in Shaker Heights.

Authorities said Mason, 46, of Cleveland, and his wife began fighting in their car and the fight turned physical as they drove on Glencairn Road.

Eventually, the altercation spilled outside of the vehicle. During a 9-1-1 call, Mason's wife told dispatchers that someone had stopped to help her after she made it out of the car. She added that Mason had driven away with the kids and that the witnesses were driving her to a hospital.

According to the affidavit, Mason's wife suffered a broken orbital bone, facial swelling and bite marks to her face.

The court will determine the appropriate final discipline at the conclusion of the disciplinary process. (Mike Frisch)

September 8, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (2)

Friday, September 4, 2015

Removed And Disbarred

The Mississippi Supreme Court removed a Chancery Court judge from office as a result of his conviction for obstruction of justice.

From the statement of agreed facts

The Formal Complaint in this matter contains various allegations regarding Respondent’s mismanagement of [a] conservatorship. Due to various irregularities occurring in Respondent’s handling of the conservatorship, the matter was investigated by the Federal Bureau of Investigation as well as the Commission. As a result of that investigation, a grand jury was convened and witnesses called to testify regarding the administration of the conservatorship. In association therewith, Respondent has entered a guilty plea related to a charge of attempting to corruptly influence a witness subpoenaed to appear before a Federal Grand Jury proceeding and attempting to impede the provision of documents by the witness to the Federal Grand Jury with the intent to influence the outcome of the proceeding in violation of Section 1512(c)(2), Title 18, United States Code. The Federal Court Judge has accepted the plea and will impose sentence on Respondent in January, 2015, thereby rendering a hearing on the merits in the Commission case unnecessary and superfluous. Based upon said plea, Respondent has resigned from office and agrees that the appropriate sanction in this cause should be removal from office.

He was also taxed with costs.

By separate order, he was permanently disbarred.

Hattiesburg American has the details. (Mike Frisch)

September 4, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, September 1, 2015

Former Magistrate Faces Attorney Discipline: Litigant Stabbed And Had Sex With Him

The excellent web page of the Ohio Supreme Court has a summary of a disciplinary matter scheduled tomorrow for oral argument

A former judge and magistrate could be suspended from practice for violating professional rules of conduct, but the length of the suspension is in contention.

Orlando Williams served as a judge and then a magistrate in the Akron Municipal Court between March 2009 and June 2012. Williams is accused of having a sexual relationship with a defendant who appeared before him in an eviction case. Additional misconduct charges brought by the Office of Disciplinary Counsel allege Williams falsified documents to buy a car and misappropriated settlement money from a wrongful death lawsuit.

While a three-member panel of the Board of Professional Conduct recommended Williams be suspended for two years, with one year stayed on condition he doesn’t commit further misconduct and maintains compliance with a treatment contract, the full board amended the sanction and is recommending the Ohio Supreme Court indefinitely suspend Williams from practicing law in Ohio. The board concluded that because of Williams’ egregious violations, a more severe sanction was appropriate.

Charges of Misconduct
While serving as a magistrate, Williams began a sexual relationship with a woman who appeared before him as a defendant in an eviction case. He didn’t recuse himself from the case until confronted by the court’s four judges after the woman was arrested for drunk driving and referred to Williams as her boyfriend. The Disciplinary Counsel charged his actions were in violation of the Ohio Code of Judicial Conduct rules 1.2 and 2.11(A) for failing to disqualify himself from the woman’s case and carrying on a relationship with her.

After he resigned his position with the court in 2012, Williams worked for a private law firm. Five days after he was fired, he and the woman went to a car dealership in Akron. Williams filled out a credit application and listed an old home address and falsely claimed to work at the law firm. With his knowledge, the woman made a fictitious pay stub that was provided to the dealership. Williams is accused of violating Ohio Rule of Professional Conduct 8.4(c) for the fraud.

In a separate incident, Williams is accused of violating that same rule of conduct, in addition to rules 8.4(d) and 1.3, for failing to make the required distributions for the minor children in a 2009 wrongful death lawsuit settlement. After the money sat in his Interest on Lawyers’ Trust Account for three years, Williams withdrew the money, repaid it, and withdrew it again. He never purchased the court-ordered annuity for the children and he failed to report his inaction to the court on several occasions.

The Board of Professional Conduct adopted the findings of fact and conclusions of law of the panel, but amended the sanction to an indefinite suspension because of Williams’ egregious actions, including his failure to make full restitution.

Answer from the Accused 
In an answer to the disciplinary recommendations, Williams’ attorney maintains his client has agreed to certain facts in the case, including taking responsibility for his misconduct. He doesn’t agree to the omission of facts about his mental state at the time of the misconduct and the indefinite suspension recommendation that’s before the Supreme Court.

The written objection includes testimony from Williams during his disciplinary hearing that he suffered through an abusive relationship with his defendant-turned-girlfriend, including being stabbed four different times by her. He claims her violent actions and threats contributed to his “misdeeds.”

Both Williams and the Office of Disciplinary Counsel contend the Board of Professional Conduct’s recommendation for an indefinite suspension of his law license is not justified in this case, and that similar cases have resulted in two-year suspensions.

- Stephanie Beougher

Video of oral argument also is available in Ohio. (Mike Frisch)

September 1, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)