Friday, October 31, 2014
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)
Thursday, October 30, 2014
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.
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)
Wednesday, October 22, 2014
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)
Thursday, October 16, 2014
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.
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.
Wednesday, October 15, 2014
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)
Wednesday, October 1, 2014
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)
Wednesday, September 24, 2014
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.
Monday, September 22, 2014
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.
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.
Friday, September 12, 2014
The Iowa Supreme Court has suspended a judge for 30 days without pay for judging while intoxicated
The gravamen of the original complaint that triggered commencement of the proceeding was a report that the judge arrived at a courthouse in an intoxicated state and could not perform her scheduled judicial duties...
The precipitating incident that gave rise to the complaint was the arrival of Judge Dean at the Henry County Courthouse that morning where she was said to be physically unable to take the bench. The complaint indicated reports that Judge Dean had been consuming alcohol prior to her arrival at the courthouse. The complaint also recited a history of Judge Dean’s absence from work for health-related reasons presumed to be alcohol related.
The record in this case establishes that after a substantial period of difficult and painful struggle with alcoholism, Judge Dean has confronted her disease and now has demonstrated a deep personal commitment to recovery. She appears to have overcome the denial, recovered from the embarrassment, recognized the depth of the problem of alcohol dependence, and most importantly has been able to establish the kind of supportive framework associated with successful recovery over a lifetime. It has not been an easy road for her and will not always be an easy road in the future. But, the fact Judge Dean has chosen to commit herself to a disciplined program of recovery is a significant mitigating factor and offers her the potential of a continued successful judicial career. Indeed, our state is no stranger to recovering alcoholics who have performed outstanding judicial service after successfully confronting the disease.
The judge will be monitored for two years. (Mike Frisch)
Wednesday, August 27, 2014
The South Dakota Special Committee on Judicial Ethics Campaign Intervention has issued an opinion that concludes that, with dignity, a judicial candidate can advertise in a movie theater.
The opinion relies on the Merriam Webster dictionary definition of "dignity."
Warning: it would not comport with the dignity standard to advertise for a judicial campaign in an adult movie theater.
Also, dignity may be affected by the particular movie that is being shown when the ad runs.
I welcome reader suggestions as to movies that may not satisfy the dignity standard.
For instance, how about The Verdict, where the judge clearly favors the big law firm throughout the litigation?
And what if the candidate mistakenly thinks that "Deep Throat" is a movie about the Watergate investigation?
The Ohio Supreme Court entered an order disqualifying a judge from sitting in light of a recent felony indictment.
WKYC.com reported on the charges
Mason, 46, of Cleveland, who is also a former Democratic member of the Ohio Senate and represented the 25th District from 2007 to 2008, is accused of attacking his wife Aisha Mason just after noon Aug. 2 while they were driving in their car with their two children on Van Aken Boulevard.
Court documents reflect that Mason hit his wife with his fists, slammed her head against the dashboard and bit her.
They have been married since 2005 and separated this past March.
In a 9-1-1 call, his wife told dispatchers he threw her out of the car, beat her and then drove off with the children.
And from Raw Story comes the results of a search of the judge's home
About 2,300 live rounds of various calibers
- Nearly 500 shotgun slugs
- A Mossberg 12-gauge shotgun
- A Winchester shotgun
- A 50-shell shotgun belt
- A FNH P90 semi-automatic rifle still in the box
- A JLD Enterprises Inc. PTR-91 semi-automatic rifle with a scope
- A Smith & Wesson handgun
- A Springfield Armory .40 caliber-handgun
- A sword
- Four canisters of smoke grenades
- A KDH bulletproof vest
- A Jaguar knife
The Ohio Supreme Court web page reports
The Ohio Supreme Court has publicly reprimanded Peter J. Corrigan, a judge for the Cuyahoga County Court of Common Pleas, following his convictions for operating a vehicle under the influence of alcohol and impeding the roadway.
In a unanimous decision announced today, the court adopted an agreement between Corrigan and the Ohio State Bar Association, which filed the charges alleging that he violated a judicial conduct rule.
In December 2012, the judge was found slumped over the wheel of his car in an intersection. While his foot was on the brake, his car was still in the drive position. Following his arrest, Corrigan pled no contest to the charges.
The court’s per curiam opinion noted that Corrigan was sentenced to three days in jail or participation in a driver-intervention program and received a one-year driver’s license suspension and a one-year period of community control. He also paid a fine and court costs.
Based on these penalties and other mitigating factors, the absence of any aggravating circumstances, and other cases involving similar offenses, the court agreed that a public reprimand was appropriate for Corrigan.
Monday, August 25, 2014
A recent opinion from the Florida Judicial Ethics Advisory Committee
May a sitting judge, who is not up for election in the current cycle, and whose adult child is running for an open judicial position, attend the adult child’s post-election gathering after all polls close in the relevant voting area?
The adult child of a sitting judge is running for an open judicial seat. The inquiring judge would like to attend the adult child’s post-election gathering. The inquiring judge states that, in an attempt to avoid the appearance of influencing potential voters, the judge would not attend the gathering until all relevant polls are closed. The inquiring judge adds that the post-election gathering will be comprised of people who previously knew the judge as the candidate’s parent.
The majority's rationale
The intent of Canon 7 is to separate judges and judicial candidates from political activity, including partisan activities and, more relevant to the present inquiry, endorsement of other candidates for public office. See Fla. JEAC Ops. 07-13, 06-13. Canon 7A(1)(b) quite specifically states that a judge shall not “publicly endorse or publicly oppose another candidate for public office.” Canon 7D also states: “A judge shall not engage in any political activity except (i) as authorized under any other Section of this Code, (ii) on behalf of measures to improve the law, the legal system or the administration of justice, or (iii) as expressly authorized by law.” Accordingly, the dispositive question is whether the inquiring judge’s proposed conduct constitutes a public endorsement for purposes of Canon 7.
The majority view is that it does not but, as noted, their position has taken into account four unusual and very specific facts included within the inquiry. First, the Committee assumes this function is intended as a typical victory party following the completion of the election. If so, it is difficult to conceive how the judge’s personal appearance could influence any voters given that the act of voting was accomplished hours before the event commenced. A different conclusion would have been drawn if the inquiring judge’s child were in a multi-candidate race with the prospect of a runoff.
Second, the majority’s determination is limited to judicial races only, in which partisanship is not a factor and the candidates themselves do not make endorsements. In other words, this will not be a combination of celebration and “rallying the troops” such as may be experienced in partisan or issue-oriented politics. A post-election gathering can easily become a political event based on what occurs, which will not be known until the event is in progress. See, e.g., Fla. JEAC Op. 10-20: “[C]aution is strongly advised when attending these types of events, since the purpose is for the citizens to voice their opinions on varying issues and their expectation of receiving a pledge or commitment on particular issues from the public figures and/or elected officials.” See also Fla. JEAC Op. 98-17 (judicial candidates should be cautious that their presence, remarks, and/or actions are not construed by others to be political or partisan).
Third, it is important that the inquiring judge not be up for election or retention during the same cycle as the judge’s child, lest the event be perceived as participation in a slate of candidates rather than an event limited to honoring a specific and successful individual candidate. Conceivably a different conclusion might be drawn if both the judge and the judge’s child had won their respective races, but for purposes of this opinion we limit ourselves to the actual facts.
Fourth and finally, the majority have placed considerable weight on the fact the candidate is the inquiring judge’s child. It is difficult to imagine that any voter would not assume that the judge supports the child’s electoral efforts even if the judge cannot personally say so during the campaign.
The minority view is expressed in the opinion. (Mike Frisch)
Wednesday, August 20, 2014
The Maine Supreme Judicial Court has issued an important opinion on the subject of judicial recusal and disqualification.
The case is somewhat complex.
A Portland Maine law firm was retained by a charitable trust to foreclose on property that the trust owned.
The client (somewhat uncharitably) fell behind in its fee payments to the firm. The firm withdrew and sued the trust for breach of contract.
Unknown to the firm, the subject property was transferred to a second charitable trust controlled by the same trustee for no consideration.
When the law firm learned of the transfer, it amended its complaint to add the second trust as a defendant and alleged that the transfer was fraudulent. The firm also filed a notice of lis pendens and attachment on the property. The court granted the relief.
The defendants sued the law firm in another county, alleging that the recording of the lis pendens constituted slander of title and tortious interference with its prospective economic advantage in reselling the property. That complaint was later dismissed on motion.
The breach of contract action was stayed in light of a fee arbitration panel proceeding. The law firm prevailed and the order was affirmed by a district court.
Proceedings in the district court were before Judge Cole. These proceedings involved discovery disputes and sanctions against the former client. Defaults against the trusts were ordered as well as a judgment for double the value of the property -- $340,000.
On appeal (and for the first time), the charitable trusts claimed that Judge Cole was required to recuse himself sua sponte because of a longstanding social relationship with a former judicial colleague (Judge Crowley) who was now at the law firm.
The court "reemphasize[d] that a party who is concerned about a judge's impartiality should tender its concerns to the court at the earliest possible moment."
Here, the charitable trusts had no done so.
Further, the court noted, there are only sixty active judges in Maine and only 3800 lawyers.
Collegiality between judges among themselves and with bar is not only permitted; it is encouraged:
At oral argument, counsel expressed surprise that judges will often have lunch together...
It is unavoidable, and indeed desirable, that judges who serve on the bench together will necessarily develop close professional relationships. We do not expect that such cordial relationships will end if a judge leaves the bench and returns to the practice of law. We are cognizant that the party status of the law firm in this instance makes this case somewhat different from those where a former colleague is simply an advocate for a party before the court.
Judge Cole and Judge Crowley were not alleged to be related or to have financial entanglements.
a friendship between colleagues or former colleagues that include such interactions [as lunch, golfing, hockey games or socializing at bar events] does not provide a basis for requiring recusal.
Nor do such contacts require disclosure.
The court also criticized counsel for injecting facts outside the record on appeal of the disqualification issue.
The court remanded for revised damages findings but rejected all other legal arguments raised by the charitable trusts. (Mike Frisch)
Friday, August 8, 2014
The New York Commission on Judicial Conduct has censured a town court justice who imposed sentences in excess of the legal limit in 791 matters.
Respondent testified that he was "shocked" when he learned of the sentencing errors. He itnposed the fines and surcharges from melnory instead of relying on the resources available to him. He acknowledged that "too many mistakes" were made and attributed his errors to "oversight," "mental lapse," "not paying attention," "mis-memoriz[ing] the law," "being overloaded" and "judicial error." He believed that he devoted sufficient time to his judicial duties (about 20 hours a week), but testified that even if he had worked longer hours, "I probably still would have made some mistakes"; he stated, "It's impossible not to make a mistake." He noted that for several months during this 29-month period, he was also doing the work of his co-judge who was unavailable.
The commission also rejected the contention that the fault lay with staff
While respondent attributes many of these unlawful dispositions to the unauthorized actions of his staff, as a judge he bears full responsibility for his clerks' conduct. This is especially so where, as the referee found, the record shows that during this period respondent did "little to nothing" to supervise his clerks, such as reviewing fine notices before they were sent or providing internal controls or written policies or procedures relating to the processing of cases (Report, p 5). Indeed, not until June 2013 three years after being served with formal charges addressing the sentencing errors he attributed to his clerks did respondent prepare a written "Policy Statement" for his staff, describing the court's procedures for handling traffic cases and making it clear that the judge imposes all fines. In view of his ethical obligation to ensure that those subject to his direction and control follow the law and "adhere to the standards of fidelity and diligence that apply to the judge" (Rules, §100.3[C]), respondent is responsible for the sentences imposed by his court staff.
The commission also rejected the contentions that the defendants had an appellate remedy for the excessive sentences and that, in order to discipline him, his motives must have been "vile, improper or impure." (Mike Frisch)
Wednesday, August 6, 2014
A former magistrate has been publicly reprimanded by the South Carolina Supreme Court.
The magistrate was the subject of criminal charges in two matters, both of which involved providing money and other benefits including his official actions in exchange for "sexual contact."
One of the relationships extended over a period of 13 years; the other for a decade.
The magistrate pleaded guilty to one count of Misconduct in Office and was sentenced to a year in jail with all but 90 days stayed.
The court noted that the reprimand was the most severe sanction it could impose on a former magistrate. (Mike Frisch)
Thursday, July 17, 2014
Kathleen Mahoney has this report on the web page of the Ohio Supreme Court
The Ohio Supreme Court today indefinitely suspended the law license of Bridget M. McCafferty, formerly a judge on the Cuyahoga County Court of Common Pleas.
In August 2011, McCafferty was convicted on 10 counts of making false statements to federal law enforcement about phone conversations she had with former Cuyahoga County Auditor Frank Russo and local businessman Steve Pumper regarding cases in her courtroom. Federal officials had intercepted more than 40,000 calls as part of a federal investigation into countywide corruption. After some counts were merged, the federal court sentenced McCafferty to the maximum term of 14 months in prison with three years of supervised release, 150 hours of community service, and a $400 fine. Following her conviction, the Supreme Court suspended McCafferty’s license to practice law on an interim basis.
In a 4-3 decision today, the court found that the former judge had violated multiple professional and judicial conduct rules.
Justice William M. O’Neill, who authored the court’s majority opinion, noted that McCafferty’s misuse of her judicial position was not charged in the federal criminal complaint against the judge, so that conduct was not part of the disciplinary case before the Supreme Court.
In considering whether to disbar McCafferty, Justice O’Neill explained that the Supreme Court has sometimes determined that permanently prohibiting a judge from practicing law is appropriate when the judge is convicted of a felony, but the court has not always disbarred judges for dishonest conduct.
“Certainly McCafferty’s conduct warrants a severe sanction,” Justice O’Neill wrote. “She was convicted on multiple counts of lying to FBI agents about conversations with people who were the subject of a county-wide corruption investigation. In addition, McCafferty was deceptive about the nature of those conversations, most particularly that those conversations included matters that had been before her in court. Notwithstanding, the conduct that led to the criminal convictions and rule violations occurred during a single impromptu conversation with FBI agents, rather than as a pattern of premeditated criminal conduct. Thus, we agree with the [Board of Commissioners on Grievances & Discipline] that imposition of the system’s most severe sanction is not warranted in this case.”
“But we also do not believe that the appropriate sanction is a fixed-term suspension,” he continued. “Despite McCafferty’s cooperative attitude during the disciplinary proceedings, we are troubled by the contradiction between McCafferty’s assertion that she accepts full responsibility for her actions and her statement that she believed that she had answered the agents’ questions as truthfully as she could. She clings to this claim, despite its utter implausibility in the face of the recorded conversations. Thus, we determine that an indefinite suspension without credit for time served [under the interim suspension] is the appropriate sanction for her misconduct.”
McCafferty’s interim suspension will continue until she completes the terms of her federal sentence. Her supervised release will end on September 17, 2015, as long as she commits no parole violations. Her indefinite suspension from practicing law will begin after she is discharged from the federal court.
The majority opinion was joined by Justices Paul E. Pfeifer, Terrence O’Donnell, and Sharon L. Kennedy. Justice Judith Ann Lanzinger dissented in an opinion joined by Chief Justice Maureen O’Connor and Justice Judith L. French.
The dissenters would have disbarred McCafferty.
“I do not see how the majority can square a sanction of a mere indefinite suspension with its statements that ‘[t]his court has stated that judges are held to the highest possible standard of ethical conduct,’” Justice Lanzinger wrote. In her view, the case deserved the full measure of the court’s disciplinary authority.
“The majority focuses solely on McCafferty’s conversation with FBI agents and paints her conduct as a one-time, brief lapse in judgment,” Justice Lanzinger continued. “This narrow characterization is simply untrue; McCafferty’s misconduct was more prolonged and more egregious than the majority admits. Months before she ever spoke to the FBI, McCafferty was swaying judicial outcomes for political associates and giving special consideration to high-ranking politicians. There can be no dispute that this conduct occurred. McCafferty’s criminal indictment outlined her involvement with [then-Cuyahoga County Commissioner James] Dimora and Russo, and she stipulated, at her disciplinary hearing, to engaging in the conduct described in the indictment.”
Two of McCafferty’s disciplinary rule violations relate to her involvement with Russo and Dimora and the abuse of her judicial office, so that misconduct is part of the case before the court, Justice Lanzinger contended.
“If the primary purposes of judicial discipline are to protect the public, guarantee the evenhanded administration of justice, and to bolster public confidence in the institution, then nothing short of disbarment should be imposed in this case,” she concluded.
The New York Court of Appeals has suspended the recently-indicted acting village justice of Waterloo.
The Finger Lake Times reported on the charges
Acting Village Justice Roger Barto is facing nine charges, five of which are felonies, related to a reported attack last summer authorities now say he fabricated.
The nine-count grand jury indictment was unsealed Monday afternoon in Seneca County Court. It charges Barto with felony counts of third-degree grand larceny, fourth-degree corrupting the government, third-degree insurance fraud, first-degree falsifying business records and defrauding the government.
Barto also has been charged with misdemeanor counts of third-degree falsely reporting an incident, official misconduct and petty larceny. The latter charge stems from Barto allegedly stealing gasoline in April while serving as sexton for the village cemetery.
The felony counts are related to an incident the night of Aug. 31, 2013, when Barto told police he was assaulted while locking up the village court following an arraignment. The court is in the village’s municipal building on West Main Street.
Barto told police he was approached from behind by one or two people, and that the assailant or assailants placed an object around his neck and hit him over the head with a toilet tank lid left outside the building due to renovations.
The suspension is with pay. (Mike Frisch)
Wednesday, July 16, 2014
The Pennsylvania Judicial Conduct Board has filed a lengthy complaint alleging misconduct by an Erie County Court of Common Pleas judge.
The complaint notes that the judge "engage[s] in many regional, national, and international educational, charitable and civic endeavors" but
In stark contrast to her record of non-judicial service, the judicial administrative authorities in Erie County have received numerous and consistent complaints regarding [the judge's] demeanor and concomitant behavior both on the bench and off the bench.
On bench, the judge is alleged to have been "impatient, intemperate, belittling, overly-critical, or disrespectful" to court employees, lawyers, litigants and witnesses.
Off bench, same allegations as to treatment of her personal staff.
The Pittsburgh Post-Gazette reports that the judge was first elected to office in 1989. Her attorney is quoted stating that the charges are "devoid of merit." (Mike Frisch)
Wednesday, July 9, 2014
From the web page of the Ohio Supreme Court
The Ohio Supreme Court today publicly reprimanded a judge serving on the Akron Municipal Court for her conduct related to the 2012 arrest of a lawyer who practiced in her courtroom.
In the 5-2 decision, the court determined that Judge Joy Malek Oldfield violated two judicial conduct rules and one professional conduct rule, but rejected an argument from the Disciplinary Counsel that Oldfield violated an additional judicial conduct rule. The Disciplinary Counsel filed the complaint charging the judge.
In February 2012, Oldfield and her husband attended an evening event that lasted into the next morning. Oldfield’s husband asked Catherine Loya, the public defender assigned to the judge’s courtroom, to drive Oldfield home, and he left.
The judge and Loya left the party sometime after 1 a.m. and stopped in a shopping center parking lot. A police officer pulled up and asked them for identification. Two more police officers arrived soon after. When Loya refused to do field sobriety tests, she was arrested and taken to the police station. Oldfield asked one of the officers to take her to the station to be with Loya. During some of her interactions with the police, Oldfield mentioned that she was a judge.
At the station, Loya’s driving privileges were immediately suspended. An officer then drove both Loya and Oldfield to the judge’s house. Loya stayed at Oldfield’s house for three nights until she was permitted to drive again. For the next two weeks, Oldfield presided over 53 cases in which Loya represented clients.
In today’s majority opinion, Justice Sharon L. Kennedy wrote that the court agreed with the state disciplinary board that the judge violated two judicial rules stating that judges must act in ways that promote public confidence in the judiciary, avoid impropriety and the appearance of impropriety, and disqualify themselves from proceedings in which their impartiality might be questioned. The court also determined that the judge engaged in conduct prejudicial to the administration of justice.
Despite an objection from the Disciplinary Counsel, the court also agreed with the board’s recommendation to dismiss the alleged violation of Judicial Conduct Rule 1.3, which reads: “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”
“Our review of the record supports the findings of the panel and the board,” Justice Kennedy wrote. “[T]he [board’s] panel concluded that the evidence was contradictory and that the record, taken as a whole, did not produce ‘a firm conviction’ that Judge Oldfield used her judicial title to influence the officers to accord her or Loya special treatment or that her conduct gave the appearance that she was using her title for that purpose. We find that the panel reviewed the record using an objective standard to determine whether Judge Oldfield’s conduct created an appearance of impropriety, i.e., whether her behavior would create, in reasonable minds, a perception that she was improperly using her position to gain favor. We therefore overrule [the Disciplinary Counsel’s] objections ….”
In determining the appropriate sanction, the court considered Oldfield’s failure to disqualify herself from more than 50 cases in which Loya was representing defendants to be an aggravating factor. But the court also noted the judge’s lack of any prior disciplinary record, her open disclosure and cooperative attitude in the disciplinary hearings, and her good character and reputation. Based on these circumstances, Oldfield’s conduct, and court precedent, the majority ruled to publicly reprimand the judge.
Joining Justice Kennedy’s opinion were Justices Paul E. Pfeifer, Terrence O’Donnell, Judith L. French, and William M. O’Neill. Chief Justice Maureen O’Connor dissented in part in an opinion joined by Justice Judith Ann Lanzinger.
In her opinion, Chief Justice O’Connor agreed with the majority that Oldfield violated two judicial rules and one professional conduct rule and concurred in the sanction. However, the chief justice dissented from the dismissal of Jud.Cond.R. 1.3.
“Importantly, Judge Oldfield’s first mention of her status as a judge to the officers was gratuitous and, contrary to the majority’s characterization, more than a mere ‘remark,’” she wrote. “During the arrest, Officer Garner asked a ‘yes or no’ question — whether Judge Oldfield was a lawyer. Judge Oldfield testified that she responded, ‘Yeah, actually, I’ve been an attorney for some time and now I’m a judge.’ Judge Oldfield acknowledged that she could have responded truthfully in a number of alternative ways, including by offering simply that she was licensed to practice law. The specific mention of her judgeship in response was not solicited or required, nor should it have been offered. Indeed, it served only one purpose: to make sure that the officer knew that she was a judge.”
In addition, the judge continued to insert herself into Loya’s arrest and booking at the police station, Justice O’Connor noted.
“I find that the evidence as a whole establishes that a reasonable person would believe that Judge Oldfield abused the prestige of her office to advance her and Loya’s interests,” she concluded. “Therefore, I would sustain [the Disciplinary Counsel’s] objection to the board’s dismissal of the Jud.Cond.R. 1.3 allegation and would find that Judge Oldfield violated the rule.”
The Akron Beacon Journal had this earlier story, which reports that the police found the judge and public defender in the backseat of the car and that both were "partially clothed and smelled of alcohol."
Scene and Heard had this report. (Mike Frisch)