Friday, February 20, 2015

The Second Time Around

A part-time magistrate has been publicly reprimanded by the Iowa Supreme Court for misconduct in connection with a search warrant.

"Déjà vu all over again." We expect lawyers and judges to learn from their mistakes. When a judicial officer repeats violations of the same ethical rules, sanctions can escalate. In this case, the Iowa Commission on Judicial Qualifications (the Commission) recommends we publicly reprimand Magistrate Douglas A. Krull for signing a warrant to search the home of his client. Krull in his private practice represented the mother in a pending action against her ex-husband to modify the child-custody provisions of their dissolution decree. A police officer sought the search warrant in a burglary investigation targeting their son. Magistrate Krull saw this matter as different from a search warrant he signed six years earlier that led to the reversal of a criminal conviction because he contemporaneously represented a client bringing a custody action against the subject of the search. State v. Fremont, 749 N.W.2d 234, 235, 243–44 (Iowa 2008) (holding Magistrate Krull’s conflict of interest invalidated warrant). The Commission issued Magistrate Krull a private admonishment for the Fremont transgression. This time, the district court judge in the modification action granted the opposing party’s motion to disqualify Krull, requiring a continuance and new counsel for Krull’s client.

 The court found that a prior warrant-related incident was an aggravating factor

In both matters, Magistrate Krull signed a warrant to search the property of a party in pending civil litigation in which he was counsel of record. Both transgressions carried adverse consequences—in Fremont, Magistrate Krull’s conflict required us to vacate a conviction, 749 N.W.2d at 244, and here, the parties were subjected to delay and additional expense resulting from the continuance of the trial and retention of new counsel. In both cases, Magistrate Krull’s conflict between his public and private roles led to an appearance of impropriety. He should have learned from Fremont to recuse himself from any search warrant application targeting someone who is a party in a case in which he is counsel of record. His prior admonishment for violating the same rules is an aggravating factor.

In mitigation, the magistrate was cooperative and

Importantly...Magistrate Krull was motivated not by personal gain, but by his desire to carry out his judicial duties and serve the people of Worth County. He realized if he recused himself, the nearest available judicial officer was at least thirty miles away. There is no evidence that Magistrate Krull signed the warrant to gain an improper advantage for his private client. We weigh the appropriate sanction mindful of the "duty to sit" to fulfill judicial responsibilities. We consider Magistrate Krull’s motivation to honor that duty as a mitigating factor.

The court found that, the second time around, public discipline was appropriate. (Mike Frisch)

February 20, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, February 12, 2015

Profane Magistrate Disciplined

Stephanie Breouger reports on the web page of the Ohio Supreme Court

The Ohio Supreme Court today has suspended a long-time  magistrate accused of abusive and disrespectful conduct.

The Supreme Court ruled 4-2 to suspend Stephen E. Weithman  of Delaware for two years, stayed, for violating  professional conduct rules. Weithman served as a magistrate for more than 30 years,  most recently in the Delaware County Common Pleas Court Domestic Relations Division.

Among the charges brought by the Disciplinary Counsel, Weithman  was accused of making inappropriate comments during a contentious case of a woman  who claimed her ex-husband was in contempt of court for posting nude pictures  of her on the Internet. Weithman lost his temper during a March 2007 hearing  and went on a profanity-laced tirade. During the trial in 2008, Weithman jokingly  told the ex-husband’s lawyer he would pay him a dollar to make the ex-wife cry  on the stand. He was also accused of looking at the ex-wife in a “demeaning and  degrading fashion” in the hallway.

In another case from 2013, he used abusive, vulgar language  and yelled at a husband’s lawyer while threatening to delay the divorce.  Weithman refused to recuse himself, but was later removed from the case by the  trial court after the husband’s lawyer filed a motion challenging his  impartiality.

While the Board of Commissioners on Grievances and  Discipline, now known as the Board of Professional Conduct, recommended  Weithman be suspended for one year, with six months stayed with conditions, the  Supreme Court decided to increase the length of his suspension to two years to “best  protect the public from future misconduct at Weithman’s hand.”

“Weithman’s quick temper, his impatient, disrespectful, and  profanity-laced rants directed toward the litigants and counsel who appeared in  his courtroom, and his failure to curb displays of disrespect and excessive  familiarity exhibited by counsel who had long practiced in his courtroom have  also compromised public trust and confidence in the independence, impartiality,  and integrity of the judiciary,” the court wrote in the per curiam decision.

His suspension will be stayed as long as he doesn’t engage in any further  misconduct and that he remain in compliance with the terms of a contract with  the Ohio Lawyers Assistance Program for treatment of mental health issues.

Justices Terrence O'Donnell, Sharon L. Kennedy, Judith L.  French, and William M. O'Neill joined in the majority opinion.

Chief Justice Maureen O’Connor and Justice Judith Ann  Lanzinger dissented and would have imposed the one-year suspension with six  months stayed.

Justice Paul E. Pfeifer did not participate in  the decision.

2014-0544. Disciplinary Counsel v. Weithman, Slip  Opinion No. 2015-Ohio-482.

Sampling

This is so goddamn simple. If you give the discovery and don’t do all this bullshit, I don’t have to sit here for hours and listen to this crap. So everybody’s excused.

Goddamn it. Comply with discovery and shut up once in a while. You make 17 hairline things, we’ll do 8 of them but not these 9. Stupid. All Franklin County attorneys are stupid.

And

I don’t know what it is with the Franklin County Attorneys, these Franklin County Attorneys, but they all have to have these Rule 75 hearings in every case, Rule 75 hearings all the time. I’ll give you your Rule 75 hearing but you won’t get a decision on this until the divorce is tried and I’ll continue this divorce for two more years.

The court found mitigation

His treating psychologist reports that Weithman has been forthcoming, has uncovered major triggers for his anger, and has worked hard to interrupt the pattern and correct the ways in which he shows his anger

(Mike Frisch)

February 12, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, February 5, 2015

Full Report Into Judge's Misconduct Not Disclosed

The Tennessee Court of Criminal Appeals has affirmed a trial court order denying access to the full file of a criminal investigation of a judge

Petitioners, the parents of the victims in the underlying criminal cases, sought to intervene in those proceedings for the purpose of challenging the trial court’s order to seal portions of an investigative file of the Tennessee Bureau of Investigation that was identified during the motions for new trial in the underlying cases. Because we conclude that Petitioners have no statutory or constitutional right to access the sealed confidential information in the file, we affirm the trial court’s denial of their request to unseal.

The investigation involved criminal activities of the first trial judge and resulted in a new trial for some of  the defendants.

These cases arise from the heinous kidnapping, sexual assault, torture, and murder of a young couple in January 2007. After an investigation, Defendants Letalvis Cobbins, Lemaricus Davidson, George Thomas, and Vanessa Coleman were indicted and prosecuted for numerous crimes stemming from this incident. At the original trials on these offenses, the presiding trial judge was Richard Baumgartner. All of the Defendants were convicted in separate trials and sentenced. After the sentencing hearings, the presiding trial judge pled guilty to a charge of official misconduct and resigned before hearing the Defendants’ motions for new trial. Senior Judge Jon Kerry Blackwood was then appointed as the successor judge.

The second trial judge had reviewed the full report and placed into the record those portions deemed relevant to the criminal case.

In this case, the trial court redacted and sealed portions of the TBI file that it determined “ha[d] no business being in the public domain and [were] not relevant at all to any of the issues that are pertinent to this case.” This was a proper admissibility determination in which the trial court excluded irrelevant material. The trial court clearly explained that it was releasing to the public in Exhibit 5 all information in the TBI file on which it was relying in adjudicating the defendants’ motions for new trial. Indeed, the 10 extent of the detailed information that was publicly revealed by the trial court at the hearing demonstrates that the trial court was not hesitant to unveil the lurid details of any relevant information from the TBI file. This was not a situation where the trial court considered relevant and admissible portions of the TBI file in making an adjudicatory decision and thenchose to redact specific parts of the information on which it relied because it believed that the nature of that information needed to remain confidential. In its memorandum and order, the trial court specifically found that “[t]here has been no showing that the court relied upon, nor that the parties referred to, any portion of the TBI record not made a public record.” Because the portions of the TBI file that Petitioners seek to unseal were inadmissible as irrelevant and not used by the trial court in the adjudication process, we conclude that they do not have a First Amendment right to that information.

The Knoxville News Sentinel reported that the first judge was convicted of purchasing painkillers from a felon on probation before him.

Huffington Post also covered the judge's misdeeds

A former circuit judge in Tennessee has been sentenced to six months in federal prison for lying to cover up a scheme that provided him with painkillers and sex.

Richard Baumgartner expressed remorse at sentencing Wednesday in federal court, saying he was greatly shamed and regretted his actions. The 65-year-old former judge in Knox County was convicted in November of five counts of misprision of a felony.

Authorities said he lied to cover up a conspiracy involving a defendant from his court, a woman about half his age who had supplied him with pills and sex.

(Mike Frisch)

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

Tuesday, February 3, 2015

Judge Banned From Bench

The Indiana Supreme Court has permanently removed a Muncie judge from office.

While most of the misconduct involved abusing the rights of litigants, there was this issue with the biological father of the judge's twins

On August 2, 2013, Respondent visited J.W.'s Facebook page and saw a picture of J.W. with his girlfriend, A.S., from a trip in April 2013.

On August 2, 2013, Respondent posted the following comment to the picture displayed on J.W.'s Facebook page: "Must be nice to be able to take such an expensive trip but not pay your bills. Just sayin' ."

Respondent's comment was visible to and seen by other Facebook users who had access to J.W.'s page. Several other Facebook users posted comments in reaction to Respondent's statements.

Respondent's posted remarks were visible for at least an hour before the comments were deleted by Respondent.

Respondent acknowledges that by making an injudicious comment on the Facebook page of J.W. on August 2, 2013, she violated Rule 1.2 of the Code of Judicial Conduct.

And this incident when J.W. came to pick up the twins from day care

 Respondent arrived at the daycare shortly after J.W. and the other sheriffs deputy arrived.

For approximately fifteen (15) to twenty (20) minutes, Respondent yelled at J.W. in the daycare and in the daycare parking lot, making various derogatory comments about J.W. At that time, Respondent believed, per her understanding of the paternity order, J.W. should have picked the children up at her house rather than the daycare.

Respondent's conduct was disruptive and was observed by daycare employees and other parents who had come to pick up their children from the daycare.

The judge also used a racial slur in an interaction with J.W.'s girlfriend.

Details here from WISHTV.com. (Mike Frisch)

February 3, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 27, 2015

Judge Learns Valuable Lesson

The North Carolina Supreme Court has approved a public reprimand of a general court of justice judge for misconduct in handling a divorce involving a member of the Armed Services who was stationed in South Korea.

The judge's violations

a. making inadequate inquiry into the rights afforded to Defendant Jason Foster, a litigant protected under the Servicemember’s Civil Relief Act of 2003, 50 U.S.C. App. §§501-597b (hereafter “the SCRA”), and failing to maintain adequate professional competence in this area of the law;

b. imprudently relying upon the counsel for the opposing party in the matter for a determination of the rights afforded to Defendant Jason Foster under the SCRA, without sufficiently performing her own independent inquiry and research into the law, and allowing opposing counsel to present such advice and opinion on the law to the Court outside of the presence of Defendant or anyone appointed as legal representation for Defendant; and,

c. inappropriately denying Defendant Jason Foster the appointment of legal representation guaranteed under the SCRA, thereby denying him his full right to be heard according to the law.

As to the advice of counsel

Plaintiff’s attorney provided Respondent with an undated, uncited publication, entitled “CROSSING THE MILITARY MINEFIELD: A JUDGE’S GUIDE TO MILITARY DIVORCE IN NORTH CAROLINA” by Mark E. Sullivan, discussing the SCRA and ways to challenge the claims of servicemen under the SCRA, specifically detailing ways that a judge could deny a serviceman a stay, when so requested, by finding that the serviceman did not show “good faith and diligence” when responding to a court action. Here, Defendant was not properly served with any motion or objection from Plaintiff’s counsel, had no notice of her objections to his request for a stay, and was not provided with the documents Plaintiff’s counsel presented to Respondent, which Respondent used in consideration of the Plaintiff’s counsel’s objections.

The judge stipulated to the sanction

With the benefit of hindsight, Respondent now admits and understands her error and that in fact her actions, even if unintentional and not motivated by malice or ill intent, did constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute. Respondent acknowledged that she has learned a valuable lesson from this incident and will be particularly vigilant to changes to the laws that affect the growing number of servicemen and servicewomen in North Carolina, and will make every effort to ensure that every person legally interested in a proceeding receives their opportunity to be heard according to the law in the [sic] all future dealings.

(Mike Frisch)

 

January 27, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, January 22, 2015

Former Partner Of Former Spouse Not A Problem

From the Florida Judicial Ethics Advisory Committee comes this recent opinion

ISSUES

Must a judge, who receives no  alimony or support from the judge’s former spouse, disclose or enter a  disqualification order when a former law partner of the judge’s former spouse  appears before the judge and rents space from and shares a receptionist with the  judge’s former spouse?

ANSWER: No.

Reasoning

Although one member of the Committee would require  additional facts that might be relevant to this opinion, based on the  underlying facts provided by the inquiring judge, the Committee believes that  because the inquiring judge receives no alimony or support from the judge’s  former spouse, no reasonable person would question the judge’s impartiality if  an attorney appears before the judge who maintains a business relationship with  the judge’s former spouse. Furthermore, disclosure of the attorney’s  relationship with the judge’s former spouse is not required because the  relationship is not relevant to the question of disqualification. See, e.g., Fla. JEAC Op. 02-05 where  this Committee advised that a judge is not required to “per se disclose personal  family matters” and that a judge in the family law division need not disclose  that the judge is divorced and may potentially be involved in litigation  concerning the judge’s children.

(Mike Frisch)

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

Wednesday, January 21, 2015

My Dinner With Ardis

The New Jersey Supreme Court has issued an opinion on the following

 In this judicial disciplinary matter, the Court considers two questions: (1) what the appropriate standard should be to measure whether a judge’s personal behavior presents an appearance of impropriety; and (2) whether respondents – two sitting judges – violated that standard by regularly dining in public with a longstanding friend who was under indictment for official misconduct.

The facts

 In 2000, a group of friends began gathering weekly on Thursday evenings for dinner at a local restaurant followed by Mass at a nearby church. The group included Respondent Raymond Reddin, a Judge of the Superior Court in the Passaic vicinage since 2003, who was assigned to the Criminal Division; Respondent Gerald Keegan, a part-time Municipal Court Judge for the City of Paterson since 2004; Anthony Ardis, now the former Director of Management Services and Clerk to the Board of the Passaic Valley Sewerage Commission (PVSC); and others. Judge Reddin has been close friends with Ardis for fifty years; Judge Keegan and Ardis have been friends since about 1985. In February 2011, Ardis was arrested and charged with official misconduct, based on allegations that he used his public position to have subordinates perform home improvement projects for his friends and family using public resources. In June 2011, a State Grand Jury indicted Ardis, charging him with official misconduct, conspiracy, and theft by unlawful taking. Respondents knew that Ardis was under indictment for criminal offenses pending in Passaic County, and, at the same time, their group continued to meet weekly for dinner and Mass. Neither Judge considered whether their attendance raised any ethical concerns.

 On Thursday, September 13, 2012, Judge Reddin, Judge Keegan, Ardis, and several others met for their weekly dinner at a restaurant in Passaic County. They dined outside on the patio in front of the restaurant. The same evening, a local Republican organization hosted a dinner at the restaurant and one of the guests (the grievant) recognized Judge Reddin and Ardis. The grievant later learned that Respondent Keegan, also seen dining with Ardis, was a Municipal Court Judge. The grievant knew that Ardis was under indictment and, days later, relayed his concerns via email to the Lieutenant Governor. The matter was referred to the Division of Criminal Justice, which, after interviewing the grievant, referred the matter to the ACJC for investigation. Although Respondents continued to dine with Ardis until the spring of 2013, they voluntarily stopped doing so as soon as they learned about the grievance from the ACJC. Both Respondents fully cooperated with the Committee’s investigation.

The court announced a new standard 

"Would an individual who observes the judge’s personal conduct have a reasonable basis to doubt the judge’s integrity and impartiality?"

Here

 By socializing in public with a defendant who awaited trial on criminal charges, in the very courthouse in which one of the Respondents served as a criminal judge, both Judges in this matter reasonably called into question their impartiality and weakened the public’s confidence in the judicial system. That said, each Judge has an unblemished record and neither engaged in actual impropriety. Because the Court now revises the standard to assess a judge’s personal behavior, the Court declines to impose sanctions in this case. In an effort to offer guidance for the future, the Court emphasizes that going forward, the circumstances presented would result in the imposition of discipline under the new standard.

(Mike Frisch)

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

Tuesday, January 13, 2015

Judicial Complaints Not Disclosed

The West Virginia Supreme Court of Appeals has affirmed an order dismissing a civil action brought by a freelance news reporter for access to information concerning judicial ethics complaints.

In this matter, petitioner was not entitled to inspect or copy the complaints at issue. Taking petitioner’s complaint as true and construing it most favorably in his behalf, it is clear that petitioner’s September 7, 2012, and January 31, 2013, FOIA requests sought details of ethics complaints filed against individual West Virginia judges that were confidential under Rule 2.4. Petitioner states in his complaint that he requested the total number of judicial ethics complaints filed against individual West Virginia circuit and family court judges listed by name and categorized by year. In those requests, petitioner did not seek information regarding admonishments or hearings on formal charges before the Judicial Hearing Board, which would be public pursuant to Rules 2.7(c) and 4.3 and as otherwise permissible by law. Instead, petitioner sought information regarding "complaints filed"; such information expressly falls within that class protected by Rule 2.4.

The court upheld the consitutionality of Rule 2.4. (Mike Frisch)

January 13, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Friday, January 9, 2015

Daughter Of The Clerk

The New York Commission on Judicial Conduct has admonished a town and acting village court justice.

This press release describes the conduct

 The New York State Commission on Judicial Conduct has determined that Richard L. Gumo, a Justice of the Delhi Town Court and an Acting Justice of the Walton Village Court, Delaware County, should be admonished for failing to disclose that a key witness in a case was the daughter of the court clerk, permitting the court clerk to perform clerical duties in connection with the case and to be in the courtroom during the trial, and sending an inappropriate letter to the County Court Judge hearing the appeal.

The Commission concluded that Judge Gumo engaged in "impermissible advocacy" by advising the County Court Judge of facts outside the record and making legal arguments when the defendant appealed. By sending a letter that was "ethically and procedurally improper," the judge "abandoned his role as a neutral arbiter and became an advocate." The Commission stated that the judge sent the letter "in a fit of pique" because the County Court Judge had criticized his decision not to disqualify himself and had granted the defendant’s application for a stay. Judge Gumo’s decision in the case was later upheld on appeal.

 The Commission also found that while it was not necessary for the judge to disqualify himself, Judge Gumo "should have disclosed the court clerk’s relationship to a potential witness in order to give the parties the opportunity to be heard on the issue before proceeding." Such disclosure, the Commission stated, was necessary "in order to dispel any appearance of impropriety and reaffirm the integrity and impartiality of the judiciary." The Commission also stated that the court clerk’s presence in the courtroom and the fact that she performed clerical duties in the case, "compounded the appearance of impropriety."

 There is a partial dissent

I cannot conclude, however, that the clerk's performance of her normal clerical duties in the case and her presence in the courtroom during part of the trial violated the ethical canons under the particular circumstances here.

Court Clerk Kristin Beers was the sole clerk of the Walton Village Court. Had she been completely insulated from the Groat case, the judge himself would have been required to handle mail, perform scheduling and tnake routine notations in the court records, such as noting dates that papers were received or sent, that would have otherwise been made by the court clerk. I cannot conclude that a reasonable application of the ethical rules requires such a result under the circumstances here or that the judge's failure to do so compounds his misconduct.

Kristin Beers was not a court attorney or the judge's law clerk.

The partial dissent came from member Richard Stoloff. (Mike Frisch)

January 9, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, December 8, 2014

Too Many Beers Lead To Forced Resignation Of Judge

A judge of the Clarksville Town Court was reprimanded and ordered to resign from office by the Indiana Supreme Court for the following conduct

 On January 16, 2014, Respondent was involved in an automobile accident in Louisville, Kentucky, that resulted in property damage to two parked cars and a fence. When later questioned by police at the hospital, Respondent admitted consuming alcohol prior to driving and having "too many" beers at a local area bar. Respondent refused to submit to a breathalyzer test or provide a blood sample. Noticing Respondent had glassy eyes and slurred speech, the officer arrested Respondent.

The judge pleaded guilty to criminal mischief  in the second degree.

As to future service

he shall be ineligible for future judicial service in Indiana unless/until he submits to, and successfully completes to the satisfaction of [the Judges and Lawyers Assistance Program] , a two-year monitoring agreement and treatment plan approved by JLAP.

(Mike Frisch)

December 8, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Friday, November 21, 2014

Recusal Ordered As Result Of Alleged Threats Against Judges

The New Jersey Appellate Division has reversed an order denying judicial recusal and ordered that the entire Bergen County judiciary be recused from a criminal case.

The reason?

The defendant has allegedly threatened the lives of two county judges.

While there are other unthreatened judges in the county, the court here concluded that the "appearence of fairness" warranted the grant of the sought relief.

The defendant is charged with synagogue firebombings. (Mike Frisch)

November 21, 2014 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Tuesday, November 18, 2014

Ticket Off The Bench

Kathleen Mahoney reports on the web page of the Ohio Supreme Court

Harland H. Hale, who served on  the Franklin County Municipal Court, has been suspended from practicing law for  six months.

In a 5-2 decision, the Ohio  Supreme Court determined that Hale improperly dismissed his personal attorney’s  speeding ticket, tried to cover up that misconduct, and falsely testified in a  disciplinary hearing that he had not represented clients in the months after he  resigned from the bench.

This is the second time the court  has considered the disciplinary complaint against Hale. In November 2013, the  court returned the case to the Board of Commissioners on Grievances &  Discipline to conduct further proceedings and to consider a harsher sanction  than the six months the board had originally recommended. After  reconsideration, though, the board again proposed a six-month suspension.

Hale was a judge in the municipal  court’s environmental division and also served in rotation as a duty judge,  assisting with criminal arraignments, traffic violations, and other court  matters.

In November 2011, Patrick Quinn,  Hale’s attorney in a civil lawsuit, received a speeding ticket. Quinn did not  show up for his arraignment in December, and an arrest warrant was issued. Quinn contacted Hale, the duty  judge at that time, asking to be arraigned without going to court.

When Hale reviewed the case file,  he completed a form stating that the prosecutor was dismissing the charge against Quinn and the court was assessing no fines or costs.  However, Hale had not discussed the matter with the prosecutor.

Following a media inquiry around  April 2012, the city prosecutor began investigating how the case had been  handled. Hale then contacted Quinn and the prosecutor, asking them to sign off  on vacating the dismissal. When the prosecutor refused, Hale vacated the  improper dismissal on his own and recused himself from the case.

The state’s Disciplinary Counsel  filed a complaint against Hale the next spring, and Hale resigned from the  bench on May 24, 2013. At a disciplinary hearing in March 2014, Hale stated that  after he stepped down he had not acted as an attorney on legal matters until  late November or early December 2013. A few months later, however, he notified  the board’s panel reviewing his case that he had actually represented five  clients during that time.

Of the seven alleged violations  of judicial and attorney conduct rules, the disciplinary board voted to dismiss  one that prohibits actions that adversely reflect on a lawyer’s fitness to  practice law. After reviewing similar disciplinary cases in the state, the  board again concluded that a six-month suspension was appropriate. It reasoned  that Hale’s dishonesty related to only one incident and noted that he  voluntarily gave up his job.

The Disciplinary Counsel objected  to the board’s dismissal of one alleged rule violation and to the proposed  sanction. Hale had argued he had served a self-imposed suspension after he  resigned from the bench by not working on legal matters, even though he later  admitted that was not true. Counsel contended that Hale’s false testimony was an attempt to keep the court from  imposing a harsher punishment.

In an opinion written by Justice  William M. O’Neill, the court found that Hale violated all seven conduct rules,  including the lawyer fitness provision. Justice O’Neill stressed that Hale’s  actions were serious ethical violations and that his false testimony was  unacceptable, and then imposed a six-month suspension.

He noted several factors to  support a suspension of this length: “(1) Hale practiced law for approximately  30 years without incident, (2) his misconduct was limited to a single case to  which he had a personal connection, (3) justice was ultimately served in that  matter, (4) … no litigants suffered permanent harm as a result of Hale’s  misconduct, and (5) Hale acknowledged that his actions were not appropriate and  voluntarily resigned from the bench within one month of [the Disciplinary Counsel’s]  complaint being certified to the board.”

Joining Justice O’Neill’s opinion  were Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and  Judith L. French.

Chief Justice Maureen  O’Connor and Justice Judith Ann Lanzinger dissented and would have imposed a  one-year suspension.

2013-1622. Disciplinary  Counsel v. Hale, Slip  Opinion No. 2014-Ohio-5053.

Video of the oral argument is linked here. (Mike Frisch)

November 18, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Friday, October 31, 2014

Affairs Of Court

A circuit court judge has been censured, suspended and ordered to pay costs by the West Virginia Supreme Court of Appeals.

In this judicial disciplinary proceeding, a circuit court judge admits that she had an affair with a local man for over two years, and concealed the relationship from her husband and the man’s wife. The judge deliberately intertwined the affair with her judicial office, and eventually involved her staff, courthouse employees, the prosecuting attorney’s office, and local lawyers in concealing the affair. Further, the circuit court judge’s paramour and his subordinates routinely appeared in criminal cases on the prosecuting attorney’s behalf in her courtroom. The judge never revealed her relationship to any defendant or any other litigant even though she knew she was ethically bound to do so. She only admitted to the relationship when she learned that other lawyers were contemplating filing complaints against her with the Judicial Investigation Commission.

Eventually, the circuit court judge stipulated to some of the facts relevant to the affair. The circuit court judge also agreed not to contest some of the disciplinary charges against her because, as the Judicial Hearing Board found, "it was not credible to do so."

The evidence before the Hearing Board established a clearly articulable nexus between the judge’s extrajudicial misconduct and her judicial duties. The Hearing Board determined that the circuit court judge’s conduct constituted eleven separate violations of seven Canons of the Code of Judicial Conduct, and recommended she be severely sanctioned. The circuit court judge now appeals, arguing that there is insufficient proof to support five of the eleven violations, and arguing that the recommended sanctions are too severe.

As set forth below, this Court adopts the Hearing Board’s finding that the judge committed eleven violations of seven Canons. The judge demeaned her office, and significantly impaired public confidence in her personal integrity and in the integrity of her judicial office. As a sanction, we hold that the judge must be censured; suspended until the end of her term in December 2016; and required to pay the costs of investigating and prosecuting these proceedings.

The judge had the affair with a Mr. Carter. She placed court staff in a "difficult position" and used the services of her clerk, two attorneys and others to facilitate the relationship.

The court rejected her claim that this was a private matter

We largely reject Judge Wilfong’s arguments. We recognize that Judge Wilfong probably, initially, intended her conduct with Mr. Carter to be nothing more than a private relationship between consenting adults. "Although both were married to other people, we normally would be loath to interfere in such personal matters. In this case, however, the private aspects of the affair are secondary to the public problems it has created." In re Gerard, 631 N.W.2d 271, 277 (Iowa 2001). Judge Wilfong carelessly and deliberately intertwined her affair with her judicial office, and in so doing seriously damaged public confidence in the integrity and impartiality of the judiciary.

The suspension is without pay.

Judge Loughry concurred and dissented, reserving the right to file an opinion.  (Mike Frisch)

October 31, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, October 30, 2014

Book Is Thrown At Removed Judge

A county court judge has been removed from office by order of the Florida Supreme Court.

Among the findings of misconduct were issues relating to the sale of her self-published book

After considering all the evidence presented, the Hearing Panel concluded that Judge Hawkins was guilty of violation of Count I(A) in that she operated a private, for-profit business, from which she derived substantial income, from her judicial chambers using official time and judicial resources. The Hearing Panel also concluded that she used her judicial position to promote Gaza Road Ministries by selling and offering to sell Gaza Road Ministries products in the courthouse to persons over whom she had disparate influence and authority, including lawyers who appeared before her and various courthouse employees. The Hearing Panel found Judge Hawkins guilty of promoting the sale of Gaza Road Ministries products on a website that included photographs of her in her judicial robes, and guilty of knowingly using her judicial assistant to promote and produce the Gaza Road Ministries products during working hours.

The hearing panel also found that the judge had violated tax laws and

she was openly observed reading magazines, which Judge Hawkins later characterized as legal materials, during court proceedings and covering up her inattentiveness by asking counsel to rephrase the question.

The judge displayed lack of candor in the investigation.

The court

we are constrained to conclude that Judge Hawkins’ prior record of service and good intentions cannot overcome the grievous nature of the violations in this case. While sale of her book to employees and lawyers in the courthouse, standing alone, would not justify removal, we cannot ignore the fact that Judge Hawkins employed court resources in the operation of her business for a lengthy period of time and failed to see that such conduct was improper under the Canons of Judicial Conduct. Moreover, even in the response to our final order to show cause, Judge Hawkins maintained a defensive posture concerning her conduct in refusing to answer questions and refusing to provide investigatory materials, even after issuance of an order to compel. In defending her conduct, Judge Hawkins asserted that her faith instructed her to hold fast to her innocence and "fight the good fight." We agree with the Commission that obfuscation and frustration of proper discovery, and refusal to answer questions posed by the Investigative Panel, Judicial Qualifications Commission counsel, the Investigator, and the Hearing Panel, do not constitute fighting the "good fight." The Canons require a judge to personally observe high standards of conduct so that the integrity of the judicial system may be observed

The opinion ends on this note

It is our hope that this decision will serve as a reminder to judges of their continuing obligation to personally observe the high standards of conduct mandated by the Code of Judicial Conduct, and to conduct themselves in all things in a manner that will demonstrate candor and preserve the integrity and independence of the judiciary.

Earlier coverage here from the Tallahassee Democrat. (Mike Frisch)

October 30, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 22, 2014

Ethics Journal Current Developments Issue Is Out

My favorite issue of the Georgetown Journal of Legal Ethics -our yearly compilation of student notes on current developments in ethics law -  has just hit the street.

This issue holds up well with the past editions and gives the reader excellent exposure to the hottest legal ethics issues that face 21st century members of the legal profession.

As co-faculty advisor (along with my colleague Professor Mitt Regan) to the journal, I am biased in its favor.

With that disclaimer, I highly recommend that all practitioners with an interest in ethics take a look.

Kudos to the journal staff for their hard work and dedication to this notable contribution to the profession. (Mike Frisch)

October 22, 2014 in Ethics, Hot Topics, Judicial Ethics and the Courts, Law & Society, Law Firms, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Thursday, October 16, 2014

Misdemeanor

The Florida Supreme Court has reprimanded a circuit court judge for issues relating to her on-bench demeanor and testimony on behalf of her arrested sister.

As to demeanor

From a review of the audio recordings of those cases, it is apparent that Judge Kautz was frustrated by the use of the court system by some as a solution to the many prob[l]ems inherent in those cases. It is clear that Judge Kautz was intending to engender a more self-reliant spirit in those appearing in court. However in doing so, she at times demeaned those who appeared seeking injunctions or family members seeking assistance from the Court.

For her sister

Judge Kautz appeared at a First Appearance hearing before Judge Ritterhoff Williams, on behalf of her sister, Rhonda Kautz. At that hearing Judge Kautz first vouched for her as a character witness. She also argued on her sister’s behalf about the circumstances surrounding the allegations contained in the probable cause affidavit. Finally she requested that the Judge order law enforcement to assist her sister by accompanying her to the house to retrieve personal items.

She did not identify herself as a judge in her testimony and now concedes that the appearence violated judicial canons.

On sanction

Judge Kautz has admitted the foregoing, accepts full responsibility, and acknowledges that such conduct should not have occurred. Judge Kautz now recognizes that this understanding was incorrect and has undertaken steps to prevent their reoccurrence.

The Judicial Qualifications Commission has concluded that while the judge’s conduct was misguided, it was not ill intentioned. Accordingly, the Commission therefore finds and recommends that in the interests of justice, the public welfare and sound [judicial] administration will be well served by a public reprimand of Judge Kautz.

(Mike Frisch)

October 16, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Niagara Fails

A justice of the Niagara Falls City Court has been admonished by New York Commission on Judicial Conduct for mistreatment of a pro se litigant

Respondent asked Mr. Santana some basic informational questions about, inter alia, his employment, falnily and birthplace. Mr. Santana gave the name of his employer, but then said something in Spanish and indicated he could not understand respondent's inquiry regarding the nature of his work. When respondent asked, "Where were you born?" Mr. Santana asked, "Como est' Ms. Vasquez said, "Pardon me?" Respondent repeated the question, and Ms. Vasquez answered, "Puerto Rico." Mr. Santana then stated, "Puerto Rico, yeah."

Respondent thereupon stated: Okay. Go ahead, Mr. Koryl. I think he understands English. The last time I heard, I think Puerto Rico was bilingual.

Respondent did not inform Mr. Santana and Ms. Vasquez that no interpreter would be appointed and that the proceeding would not be adjourned.

 From the news release of the commission

 In 2013, Judge Merino presided over a summary eviction proceeding involving a Spanish-speaking native of Puerto Rico, who had limited proficiency in English. At the outset of the proceeding the judge stated that he would adjourn the proceeding so that an interpreter could be provided. However, after asking the tenant some basic questions, to which the tenant had trouble responding, the judge decided to move forward without an interpreter and ultimately issued a warrant of eviction.

The judge agreed to the sanction. (Mike Frisch)

October 15, 2014 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 1, 2014

Not So Grandson

A municipal court judge has been reprimanded by the South Carolina Supreme Court for intervening in a driving while suspended charge against her grandson

 Respondent's grandson was charged with Driving under Suspension, 1st offense. The matter was pending before a magistrate. Respondent contacted the magistrate's office and identified herself as a judge in the telephone conversation. Respondent did not place the call in an attempt to get the charge dismissed but to facilitate her grandson's plea as he was currently incarcerated on other matters...

Respondent asserts she never intended to use her position as a judge to help her grandson and that she was just trying to enable him to plead guilty to the charge. Respondent submits she did not identify herself as a judge in the second letter and that she did not write either letter on court stationary or letterhead.

Respondent since hired a lawyer to represent her grandson and the Driving under Suspension charge was resolved with a plea. Respondent is aware that she should not have used her title in speaking to the magistrate's office and regrets her conduct. Respondent submits she will not repeat her conduct in the future.

The judge admitted the ethical violations. (Mike Frisch)

October 1, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2014

Judicial Candidate Don't Need No Stinking Badges

Kathleen Maloney reports on a decision filed by the Ohio Supreme Court

The Ohio Supreme Court today found  that part of a rule governing the conduct of candidates running for judge is  unconstitutional.

In an opinion written by Justice  Judith Ann Lanzinger, the court held that the portion of Jud.Cond.R. 4.3(A)  that prohibits a judicial candidate from conveying true information about the  candidate or the candidate’s opponent that is nevertheless deceiving or  misleading to a reasonable reader violates the candidate’s constitutional right  to free speech. The court severed this part of the rule from the Code of  Judicial Conduct.

In addition, the court affirmed  the public reprimand of Colleen M. O’Toole by a court-appointed commission reviewing  the matter for wearing a name badge stating that she was a judge. At that time,  she was not a judge but was running for a spot on the Eleventh District Court  of Appeals. But the court dismissed a charge concerning language that appeared on  her campaign website in light of ruling that the related judicial conduct rule  is unconstitutional.

O’Toole served as a judge in the  Eleventh District from 2004 to February 2011. In 2012, she ran again for judge  on the same court and subsequently won the election.

Before the election, a grievance was filed  against O’Toole for certain campaign activities. A five-judge commission appointed  by the Ohio Supreme Court found that statements posted on O’Toole’s campaign  website were misleading and worded to give the impression she was a sitting  judge in 2012. The commission also concluded that a name badge she wore during  her campaign, which read “Colleen Mary O’Toole, Judge, 11th District Court of  Appeals,” left the impression that she was still a judge at that time.

The commission publicly  reprimanded O’Toole and also ordered her to pay a $1,000 fine, the costs of the  proceedings, and $2,500 in attorney fees.

O’Toole appealed to the Ohio  Supreme Court, in part challenging the constitutionality of Jud.Cond.R. 4.3(A).

Rule 4.3 provides standards for  communications by candidates during campaigns for judicial office. Justice  Lanzinger noted that “section (A) restricts two categories of speech by  judicial candidates such as O’Toole: (1) speech conveying false information about the candidate or her opponent and (2)  speech conveying true information  about the candidate or her opponent that  nonetheless would deceive or mislead a reasonable person.”

The rule is a content-based  regulation protected by the First Amendment to the U.S. Constitution, Justice  Lanzinger explained. To prove that the rule is constitutional, she added, the  government must show that the regulation serves a compelling state interest,  and the rule must be narrowly tailored to meet that interest.

The court stated that the Code of  Judicial Conduct, including this rule, is designed to promote and maintain an  independent, fair, and impartial judiciary and to ensure public confidence in  the judicial system – both compelling state interests.

After pointing out that lies do  not add to a robust political atmosphere and are not protected by the First  Amendment in the same way that truthful statements are, Justice Lanzinger  wrote, “The portion of Jud.Cond.R. 4.3(A) that limits a judicial candidate’s false speech made during a specific time  period (the campaign), conveyed by specific means (ads, sample ballots, etc.),  disseminated with a specific mental state (knowingly or with reckless  disregard) and with a specific mental state as to the information’s accuracy  (with knowledge of its falsity or with reckless disregard as to its truth or  falsity) is constitutional.”

“However, the latter clause of  Jud.Cond.R. 4.3(A) prohibiting the dissemination of information that ‘if true,’  ‘would be deceiving or misleading to a reasonable person’ is unconstitutional  because it chills the exercise of legitimate First Amendment rights,” she  concluded. “This portion of the rule does not leave room for innocent  misstatements or for honest, truthful statements made in good faith but that  could deceive some listeners.”

Under its constitutional  authority to regulate the practice of law, Justice Lanzinger wrote that the court  today “narrow[s] Jud.Cond.R. 4.3(A) to provide that no candidate for judicial  office shall knowingly or with reckless disregard do any of the following: ‘Post,  publish, broadcast, transmit, circulate, or distribute information concerning  the judicial candidate or an opponent, either knowing the information to be  false or with a reckless disregard of whether or not it was false.’ The  remaining language in Jud.Cond.R. 4.3(A), ‘or, if true, that would be deceiving  or misleading to a reasonable person,’ is severed.”

The court then determined that  O’Toole violated the conduct rule by wearing a badge claiming she was a judge  during a time when she did not hold judicial office. The court agreed with the  commission that a public reprimand for the misconduct was appropriate.

“This intentional  misrepresentation is not protected speech under the First Amendment,” Justice  Lanzinger reasoned. “By repeatedly calling herself a judge when she was not,  O’Toole undermined public confidence in the judiciary as a whole.”  

However, the allegation that  O’Toole’s website was crafted in a way to mislead readers into thinking she was  a sitting judge running for reelection is dismissed, given the language that  has been severed from the judicial conduct rule, Justice Lanzinger explained.

The court also lifted an earlier  stay on the imposition of the fine, costs, and attorney fees.

Justice Lanzinger’s opinion was joined  by Chief Justice Maureen O’Connor, Justice Terrence O’Donnell, Justice Judith  L. French, Judge Vernon Preston of the Third District Court of Appeals, and Judge  Patrick Fischer of the First District Court of Appeals. Judge Preston served in  place of Justice Sharon L. Kennedy, and Judge Fischer filled in for Justice  William M. O’Neill. Justices Kennedy and O’Neill both recused themselves from  the case.

Justice Paul E. Pfeifer concurred  in the majority’s judgment except for the award of $2,500 in attorney fees. He  noted that the original complaint was filed by a friend of O’Toole’s political  opponent in the 2012 election and included 12 counts of alleged misconduct.  Nine counts were dropped before the hearing conducted by a disciplinary panel,  and one was dismissed after the hearing.

The judicial commission  ordered O’Toole to pay $2,500 in attorney fees based on two violations of the  judicial conduct rules. Because the court has found that O’Toole committed only  one violation, Justice Pfeifer would cut the attorney fees in half, to $1,250.

2012-1653. In re Judicial  Campaign Complaint Against O'Toole, Slip  Opinion No. 2014-Ohio-4046.

Video camera icon View oral argument video of this case.

(Mike Frisch)

September 24, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, September 22, 2014

Judge Permanently Disbarred For Vote Buying

A former judge who pleaded guilty to a RICO count after the Sixth Cicuit had reversed his jury trial conviction of five felony counts of vote buying conspiracy accepted permanent disbarment by the Kentucky Supreme Court.

The court

Ultimately, on November 6, 2013, Maricle entered a negotiated guilty plea to the RICO charge. He admitted that he and his associates accessed the Clay County Board of Elections in order to corruptly influence the outcome of elections. Furthermore, he confessed to providing cash to bribe voters with the understanding that his associates would ensure that the bribed voters cast their ballots as directed. Additionally, Maricle acknowledged that several of his associates received public works contracts (some of which were funded by federal grant money) by virtue of their participation in the election-fraud enterprise. Pursuant to his negotiated guilty plea, he was sentenced to time served, plus supervised release for two years (to include six months of home incarceration), 200 hours of community service, and no participation in the political process.

The history is told by Kentucky.com

The five remaining defendants in a case alleging widespread vote fraud in Clay County pleaded guilty Wednesday, capping a long-running investigation in which some of the most prominent officials in the county went to prison.

Those who pleaded guilty were longtime Circuit Judge R. Cletus Maricle, 70; two-term county Clerk Freddy W. Thompson, 50; Douglas C. Adams, 62, who was county school superintendent from 1999 to 2009; Charles Wayne Jones, 74, who had been an election commissioner; and William E. Stivers, 61, a former precinct worker.

Former Magistrate Stanley Bowling; Bart Morris, who owned a garbage-hauling business; and his wife, Debra Morris, pleaded guilty in the case in September.

The eight were charged with being part of a racketeering conspiracy to use the county Board of Elections as a tool to buy or steal votes — by appointing corrupt precinct workers, for instance — in the 2002, 2004 and 2006 elections.

Witnesses at a 2010 trial in the case said candidates pooled hundreds of thousands of dollars to buy votes as part of the scheme, with power, jobs and contracts as the prizes. A jury convicted the eight of all charges against them in 2010.

However, a federal appeals panel ruled this year that U.S. District Judge Danny Reeves, who presided over that trial, allowed prosecutors to present evidence that should not have been given to jurors. The appeals panel said the eight had not gotten a fair trial and voided the convictions.

(Mike Frisch)


Read more here: http://www.kentucky.com/2013/11/06/2915753/five-remaining-defendants-in-clay.html#storylink=cpy

September 22, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)