Legal Profession Blog

Former Firm And Judicial Recusal

The Massachusetts Committee on Judicial Ethics has a recent opinion on the propriety of a judge in a small community hearing cases in which his former law firm appears.

The conclusion:

The Code does not mandate your recusal from all cases in which attorneys from the Firm appear before you, unless you were involved in the matter in controversy while you were at the Firm.  The two-part Lena test therefore applies, and you have already conducted the subjective component and concluded that you can handle the Firm's matters impartially.  The objective test remains, and you are in a better position than the Committee to determine whether a disinterested observer would question your impartiality in handling Firm matters given your eleven-year absence from the Firm, the lack of relationship between you and the attorneys who have joined the Firm during that eleven-year period, and the disruption to the court, attorneys, and litigants that your frequent recusals cause.

(Mike Frisch)

Size Doesn't Matter (For A Judge)

In an opinion that noted "the ethical dilemmas judges in small communities face," the New Mexico Supreme Court has imposed a formal reprimand with conditions on a municipal court judge who had engaged in ex parte contacts with parties in a matter before him:

Respondent, based on his personal knowledge of the situation and the parties, initiated at least two ex parte communications and issued a temporary restraining order without authority or jurisdiction. Respondent has characterized his actions as an effort "to keep the peace" between two families in a small community. While Respondent may have had good intentions, his actions were knowing and intentional... We therefore take this opportunity to discuss the importance of abiding by the Code of Judicial Conduct no matter the size of the community in which a judge resides.

The conditions include probation for twelve months and a formal mentorship. (Mike Frisch)

Judical Misconduct Charges May Proceed

From the web page of the New York Commission on Judicial Conduct:

Salina Town Court Justice Andrew N. Piraino (Onondaga County)  brought a petition in State Supreme Court to stop the Commission from  proceeding against him on formal disciplinary charges. 

The judge and his lawyer filed the petition in the name of “John  Doe.”

The matter was assigned to Supreme Court Justice John C. Cherundolo in Syracuse.

On February 7, 2011, Justice Cherundolo signed a temporary  restraining order enjoining the Commission from any further proceedings and  ordering that the matter be sealed pending a final determination.

After written submissions from the parties, Justice Cherundolo  dismissed the petition in its entirety in a decision dated April 26, 2011, and  an Order dated May 12, 2011.  His Order  directed that the matter be unsealed and that the caption be changed to reflect  the real name of the petitioner: Andrew  N. Piraino v. New York State Commission on Judicial Conduct.

Subsequently, Justice Cherundolo granted Judge Piraino's motion to reconsider and issued a second order that inter alia reversed his first ruling, reinstated the petition, restyled the caption as John Doe v New York State Commission on Judicial Conduct, reinstated the Temporary Restraining Order against the Commission, and ordered  the Commission to produce volumes of information and material ostensibly going to the merits of the underlying disciplinary charges against Judge Piraino.

The Commission appealed to the Appellate Division, Fourth Department, which issued a Memorandum and Order dated November 9, 2012, in the Commission's favor, unanimously reversing Justice Cherundolo's second Order, reinstating his original order and dismissing Judge Piraino's Article 78 petition.

The order of the Appellate Division is linked here. (Mike Frisch)

Magistrate Reprimanded For "Beat Your Ass" Comment

The South Carolina Supreme Court issued a public reprimand of a county magistrate for misconduct while presiding over bond court.

When a defendant questioned the bond set, the magistrate asked him whether he was calling him a liar. The defendant responded: "No, I'm not going anywhere."

The magistrate's problem came with the next comment: "Okay. Because I'll beat your ass if you call me a liar."

The magistrate regretted the comment and explained that his disabled three-year-old son awoke at 2 am that morning and, as a result, he was unable to get back to sleep. (Mike Frisch)

Proceed With Caution

TheTennessee Judicial Ethics Committee recently weighed in on the issue whether judges "may utiize social media such as Facebook, Twitter, LinkedIn and MySpace."

The committee surveys the opinions of other jurisidictions on the subject and opines that a judge may do so but with caution.

A judge "must be constantly aware of ethical implications as they participate in social media and whether disclosure should be made...judges must decide whether the benefit and utility of paticipating in social media justify the attendant risks."

(Mike Frisch)

Judge Sanctioned For Seeking Defendant's Vote

The Ohio Commission of Judges has ordered that a judge of the Akron Municipal Court be fined $5,000 for misconduct while a candidate for the County Court of Common Pleas.

During a criminal matter, the judge told a defendant "that he need not worry about jail time if he stayed out of trouble then immediately request[ed] his personal and familial support for her election."

The Commission concluded that the statement "might reasonably be construed as a statement affecting the outcome of an impending matter before the judge."

The judge was disciplined previously for judicial election law violations in the same election cycle.

Here, the judge was publicly reprimanded along with the fine. (Mike Frisch)

Book Review Bad Idea For Judge

A recent opinion from the Florida Judicial Ethics Advisory Committee:

ISSUE

May a judge accept an invitation from a university editorial board member to critique a book written by the lead defense attorney of a well-publicized criminal case, when the defendant in that case remains a party in pending proceedings arising from issues raised in the criminal case?

ANSWER: Yes.  However, given the restrictions which the Code of Judicial Conduct would place on the judge in this specific case, the Committee advises the inquiring judge to decline the invitation.

FACTS

The inquiring judge was asked by a friend who sits on a university’s editorial board if the judge would consider submitting a critique of a book written by the lead defense attorney of a recent well-publicized criminal case.  The case was heavily tracked by the media, including “gavel to gavel” coverage locally and on the internet during the month-long trial.  The inquiring judge advises that the university editorial board intends to publish the proposed critique in an online journal.  The university editorial board also intends to send a copy of the proposed critique to the book’s publisher which can use the proposed critique as it wishes.

     As of the date of this opinion, the counts upon which the defendant was convicted remain pending on appeal.  Also, civil lawsuits arising from issues raised in the criminal case remain pending against the defendant.  The book’s author is not an attorney-of-record in any of those case.

The reasoning:

...the inquiring judge must be mindful of the fact that, once the judge has submitted the proposed critique, the judge has lost control over how the proposed critique is used.  As the inquiring judge advises, the university editorial board intends to send a copy of the proposed critique to the book’s publisher which can use the proposed critique as it wishes.   It is possible that the book’s publisher or the criminal defense attorney will use the proposed critique to advance their private interests.  An argument could be made that the judge, recognizing this possibility, indirectly lent the prestige of judicial office to advance the private interests of the book’s publisher or the criminal defense attorney in violation of Canon 2B.  See Fla. JEAC Op. 96-25 (judge’s potential arrangement to appear on a television station “to comment about, explain to, and educate the public concerning diverse legal matters including explaining and clarifying the proceedings during high publicity trials” would violate Canon 2B because it “would lend judicial prestige to the commercial interests of that station”).

Based on the foregoing, although the Committee recognizes that the inquiring judge could accept the invitation to write the proposed critique, the Committee advises the inquiring judge to decline the invitation given the restrictions which the Code of Judicial Conduct would place on the judge in this specific case.

(Mike Frisch)

Law Of Stepniece Disqualification Explored

A recent opinion from the Florida Judicial Ethics Advisory Committee:

ISSUES

1. If a judge’s stepniece is employed as an attorney with  the Public Defender’s Office, is the judge’s disqualification required in all  criminal cases in which a public defender is involved?

ANSWER: No.

2. If a judge’s stepniece  appears before the judge, is the judge per  se disqualified pursuant to Canon 3E, Code of Judicial Conduct?

ANSWER: No. Disqualification may be  required, however, depending upon the relationship between the judge and the stepniece.

3. Should the judge disclose  that the judge’s stepniece is appearing before the judge as an attorney in a  criminal case?

ANSWER: Yes.

FACTS

The inquiring judge currently presides over  a criminal division, and attorneys with the Public Defender’s Office regularly  appear before the judge.  When the judge  was a child, the judge’s mother remarried a person who, by a previous marriage,  had a child (stepsister to the judge).   The stepsister never lived with the judge, and the stepsister has a  child (stepniece to the judge). The judge’s stepniece just passed the bar and  is an attorney with the Public Defender’s Office.  The inquiring judge has not advised this  Committee of how close of a relationship the judge has with the stepniece.  The judge’s stepfather is deceased.

(Mike Frisch)

Shame Now The Name Of the Game: Judge Censured For Sharing Digital Image

The Michigan Supreme Court has publicly censured Circuit Court Judge Wade McCree based on a consent agreement.

The misconduct involved the judge's use of his cell phone to make a digital image of himself after completing a half-marathon. The image was shown to a number of people, including those "who worked in or passed through his courtroom."

The image was provided to a reporter for a television station. As a result, the judge was interviewed. He treated the interview in a "flippant" manner and said, "There is no shame in my game."

The interview and image "spread rapidly around the internet and became the subject of jokes and ridicule."

The judge is sorry now. The image is not part of the court's order.

Here it is, courtesy of FoxNews.com. (Mike Frisch)

Judge's Diagnosis Lands Him In Trouble

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today suspended  the law license of Massillon Municipal Court  Judge Edward J. Elum for six months,  with  the full term of suspension stayed, for violations of the Code of Judicial Conduct  and Rules of Professional Conduct in his handling of two cases.

In a 7-0 per curiam decision, the court adopted findings by the  Board of Commissioners on Grievances & Discipline that in one case Elum  improperly “interceded” in the case of a parole violator by asking probation  officers to take the defendant into his courtroom for a “probation review,” and  outside the presence of the defendant’s attorney or counsel for the prosecutor,  addressed the defendant using vulgar and intemperate language while other  members of the public were present. Elum  then unilaterally modified the terms of the defendant’s probation.

In the second case, the court agreed with findings by the  disciplinary board that Elum, who admitted that he had a history of conflicts  and disagreements with the Massillon Police Department and Police Chief Robert  Williams, improperly interjected himself into an internal police investigation  of misconduct by an officer who sent sexually explicit text messages, photos  and a video to a woman after citing her for traffic violations that were  prosecuted in Elum’s court.

When the state requested a second continuance of the woman’s  trial because of incomplete investigatory information, Elum issued an order  stating that the police department was “delaying the prosecution” of the case  and ordered the parties to provide the court with copies of the text messages  and photos that the arresting officer had sent to the defendant despite the  absence of a request by any party for the court to obtain or review that  material. Elum later threatened to hold contempt proceedings if the parties  failed to submit the requested material, and made statements in open court accusing  the police of “total neglect and disregard” and assuring the defendant that his  court “did not participate in any cover-up” of police misconduct.

The court adopted the board’s findings that Elum had engaged  in conduct prejudicial to the administration of justice, and had violated,  among others, the state judicial rules that require judges to be patient,  dignified and courteous to litigants, to act in a manner that promotes public  confidence in the judiciary, and to apply the law and perform judicial duties  fairly and impartially.

In light of Elum’s 35 years of law practice  without prior disciplinary infractions, lack of a selfish or dishonest motive,  full and free disclosure of his misconduct, cooperation with disciplinary  authorities, and evidence of his good reputation in the community, the court  adopted the board’s recommended sanction of a six-month suspension with all six  months stayed on condition of good conduct during that period.

The "vulgar and intemperate language" at the "probation review" is set forth in the opinion:

Cody, quit screwing up. Quit fucking up.

You have a bad case of D. H. Dickheaditis.

Your're screwing off. You can't keep continuing to screw off or you'll be like the rest of the dickheads at Stark County Jail.

The court's opinion is linked here. (Mike Frisch)

Former Judge Reprimanded For Moving To Terminate Sentences He Imposed

A former chief judge of the Dalton Municipal Court has been publicly reprimanded by the Georgia Supreme Court.

After concluding his judicial service in 2010, the former judge

...agreed to represent three individuals then serving probationary sentences that [he] himself had imposed as a judge of the Municipal Court, and on behalf of those individuals, [he] filed motions in the Municipal Court to terminate their probationary sentences. [He] undertook to represent these individuals and filed their motions to terminate their probation without the consent of the city of Dalton.

The former judge defaulted on the charges and refused to accept responsibility for his actions. (Mike Frisch)

A Mentor's Bad Advice Leads To Judicial Censure

A judge of the New York Surrogate's Court has been censured for "accepting $250,000 in 'disguised contributions' to her 2008 campaign for judicial office and failing to report the contributions as required."

The Commission on Judicial Conduct noted that the judge was an inexperienced judicial candidate who had relied on the bad advice of her friend and mentor, who was the campaign contributor.

The judge and her mentor were indicted on election law violations. All charges were either dismissed or led to acquittal by the jury.

Her term of office expires in 2002. (Mike Frisch)

Missing Link

The New York State Commission on Judicial Conduct accepted a 122 page stipulation and the resulting resignation of non-attorney town court justice Robert Link.

Among the violations: "Finding [a] defendant guilty without a plea or trial and imposing sentence without giving the defendant an opportunity to contest charges." (Mike Frisch)

Don't Walk

A recent opinion from the ever-busy Florida Judicial Ethics Advisory Committee:

ISSUES: 1. May a judge participate in a charity walkathon wearing  a shirt with a “team name” based on the name of a local attorney in private  practice?

ANSWER: No.

2. May a judge’s spouse donate and solicit funds on the  spouse’s behalf and on behalf of the team named for the local lawyer?

ANSWER: Yes, as long as the judge is not seeking to  solicit funds vicariously through the efforts of the judge’s spouse.

(Mike Frisch)

Stayed Suspension For Ohio Magistrate

The Ohio Supreme Court has imposed a stayed one-year suspension of an attorney for misconduct as a magistrate hearing post-decree domestic relations matters.

The magistrate had engaged in "impatient, undignified and discourteous" treatment of litigants over several hearing days in a matter. Among other things, he did not permit the parties to fully present their cases, "acted on his own whims" rather than in the best interests of the child, and did not resolve the contested issues in a timely manner.

The misconduct was linked to the magistrate's post-traumatic stress from a life threatening health condition and other personal problems.

The court imposed conditions to the stayed suspension in order to require him to participate in continuing treatment that is recommended by the bar's program for lawyer assistance. (Mike Frisch)

No Duty To Report "Robosigner"

A recent judicial ethics opinion from Massachusetts holds that a judge is not obligated to report a "robosigner" to bar authorities:

  It is also noted that at this time, unlike at least one other jurisdiction, Massachusetts has not made robo-signing itself improper.  Cf. Administrative Order, Chief Administrative Judge of the Courts of New York, AO/431/11, available at http://www.nycourts.gov/attorneys/pdfs/AdminOrder_2010_10_20.pdf (in residential foreclosure actions, requiring lawyers to submit an affidavit that the lawyer "has communicated with the following representative or representatives of the Plaintiff, who informed me that he/she/they (a) personally reviewed plaintiff's documents and records relating to this case for factual accuracy; and (b) confirmed the factual accuracy of the allegations set forth in the Complaint and any supporting affidavits or affirmations filed with the court, as well as the accuracy of the notarizations contained in the supporting documents filed therewith.")           

           In this case, mere knowledge that a lawyer is on a list of robo-signers alone is not sufficient to know that the lawyer has submitted false documents.  Under these facts there is no mandatory duty to report under 3D(2). 

(Mike Frisch)

Open To The Public

The web page of the New York State Commision on Judicial Conduct has an announcement of a "rare" public proceeding:

Disciplinary proceedings are pending against Bronx County Surrogate Lee L. Holzman, who waived confidentiality. Information and documents pertaining to  the Commission proceeding, and to a Supreme Court case initiated by Judge Holzman  to suspend the Commission's proceeding, are  available at Holzman Proceedings. The Report of the Referee who presided over the disciplinary hearing, issued by retired State Supreme Court Justice Felice K. Shea, is available at Report. Briefs submitted to the Commission by its Counsel and by Judge Holzman's attorney are available at Holzman Proceedings. The Commission will consider the Report and briefs,  hear oral argument by its Counsel and Judge Holzman's attorney, and render a determination later this year. Oral argument is scheduled for 2:15 PM on September 19, 2012, in Manhattan, at 61 Broadway (one block south of Wall Street) in a hearing room on the 5th floor.   

Traffic Court Judge Indicted, Suspended

A Philadelphia traffic court judge has been suspended from his judicial office in the wake of his recent indictment.

The suspension was imposed by the Court of Judicial Discipline.

Philly.com has this report on the charges and suspension:

The Court of Judicial Discipline "has the authority to impose sanctions, ranging from a reprimand to removal from office" if warranted, according to its website.

Mulgrew's lawyer, Angie Halim, said she had no comment on the suspension but added, "I would like to reiterate that Judge Mulgrew, Mr. Mulgrew, is going to vigorously defend himself on these charges. These are in fact just charges."

On Thursday, federal agents arrested Mulgrew and Lorraine DiSpaldo, an aide to Democratic State Rep. William Keller, on charges of wire and mail fraud, obstruction, and other counts stemming from their roles in two nonprofit civic groups. The 43-count indictment also charged Mulgrew and his wife, Elizabeth, with signing tax returns from 2006 to 2010 that allegedly hid their real income.

The indictment alleges that Mulgrew and DiSpaldo, between 1996 and 2008, got $900,000 in state economic development grants to benefit two nonprofits, Friends of Dickinson Square and Community to Police Communications. Instead of spending all the money to benefit the community, Mulgrew and DiSpaldo diverted thousands to help themselves and their friends, the indictment charges.

Mulgrew's suspension leaves the seven-member Traffic Court with four vacancies. Traffic Court Judge Willie Singletary resigned in February after allegedly showing photos of his genitals to a coworker. Judges Earlene Green and Thomasine Tynes retired in June 2011 and July 2012, respectively, and Mulgrew has been suspended.

Elected Judge May Complete Expert Witness Testimony

The Florida Judicial Ethics Advisory Committee has a recent opinion on the ethics of a judge testifying as an expert when retained prior to his election as a judge:

ISSUES

May a  judge-elect testify as an expert on attorney’s fees at an evidentiary hearing  which had commenced while he/she was a candidate for judge but had been  continued to conclude his/her cross-examination after the date he/she was  elected to the bench?

ANSWER: Yes.

FACTS

Before election  as a judge, the inquiring judge-elect was retained as an attorneys’ fees expert,  reviewed the case file, provided an affidavit, and testified regarding the  reasonableness of the attorneys’ fees at an evidentiary hearing on the subject.   The parties were unable to conclude the  judge-elect’s testimony, so they interrupted his/her cross-examination and  continued the hearing to a later time which, coincidentally, followed the  judge-elect’s successful judicial campaign.   The judge-elect asks if he/she may appear at the continued hearing and  conclude the testimony.

The Committee's reasoning:

The majority of  the Committee believes the inquiring judge-elect is permitted to appear at the  continuation of the evidentiary hearing and finish testifying regarding the  reasonableness of attorneys’ fees in the case.  The majority notes that the judge-elect has  concluded the direct testimony and part of the cross-examination and is merely  finishing up the testimony on attorneys’ fees, the case likely will be  concluded before the judge-elect takes the bench, the judge-elect was retained  for the purpose of testifying as an expert witness on attorneys’ fees and did  the vast majority of the work in advance of the election, there is no jury  involved as there was in the scenario outlined in Fla. JEAC 04-37, and forcing  the parties to “start over” on the attorneys’ fees issue would cause  substantial prejudice in the way of additional expense and delay to the parties  and the court.  The majority concludes  that the judge-elect’s testifying at the continuation of the evidentiary  hearing on attorneys’ fees is merely closing out the judge-elect’s practice  before taking office – a classic “winding up” situation – one which is  necessary for the judge-elect to complete before assuming the bench.

Based upon the  foregoing, the Committee distinguishes this case from that described in Fla. JEAC  Op. 04-37 and advises the inquiring judge-elect he/she may testify in the  continuation of an evidentiary hearing as an expert on attorneys’ fees.

One member  dissents and believes this inquiry is controlled by the Committee’s prior  decisions in Fla. JEAC Ops. 04-37 and 03-06.

(Mike Frisch)

Supreme Court No Pulpit For Bully

The Pennsylvania Court of Judicial Discipline has issued an interim order suspending Supreme Court Justice Joan Orie Melvin without pay.

The court found no due process violation in such a suspension in light of pending criminal charges:

...in this case, what drives our decision is the nature and quality of Respondent's conduct. In examining that conduct we see this Respondent as so single-mindedly occupied with achieving personal aggrandizement that she pressured, intimidated and bullied her clerks and secretaries into performing work on her political campaigns in violation of a pledge each had made as a condition of their employment pursuant to an Order of the Pennsylvania Supreme Court. This intimidation and bullying was relentless and continued over long periods of time. Her chief clerk...practically begged her to stop demanding that the staff continue to violate the order prohibiting them from engaging in such political activity; but Respondent did not stop.

CBS Pittsburgh has this recent report on the criminal charges. (Mike Frisch)