Tuesday, March 8, 2016

No PTSD Mitigation For Magistrate's Misconduct

The opinion of the Ohio Supreme Court in the case of the Akron Magistrate is now posted and summarized on the court's web page

Williams Had Sexual Relationship With Party in Case
Williams was appointed judge in the Akron Municipal Court in March 2009 and lost a bid to retain the seat in the November 2009 general election. The municipal court judges then hired him as a magistrate, and part of his duties was to oversee eviction cases.

While presiding over a case where a landlord sought to evict a woman identified in court documents as A.B., Williams began a sexual relationship with A.B. and failed to recuse himself from the case. Weeks later, municipal court judges learned A.B. had been arrested for operating a motor vehicle while intoxicated and was referring to Williams as her boyfriend. Williams admitted the relationship to the judges, recused himself from A.B.’s case, and resigned.

After leaving the court, Williams worked at a Columbus law firm, but was terminated in May 2013. Days after losing his job, he and A.B. purchased a used car by listing an address where he had not lived for more than a year and falsely stating a salary with the law firm he just left. With Williams’ consent, A.B altered one of his paystubs to get the car loan, and Williams later defaulted on the loan.

Williams also represented a woman seeking to be appointed to manage the financial affairs of an estate in Summit County Probate Court. The probate court approved a $25,000 wrongful-death settlement to the estate, and the money was deposited in Williams’ client trust account. Williams made several payments on behalf of the estate but failed to comply with a court order to pay about $10,800 for an annuity to benefit the dead man’s three children.

In April 2011, the probate court ordered Williams to close the estate assuming the annuity had been purchased, but Williams informed the court he kept the money in his client trust account and was going to invest in a money-market account to benefit the children. More than a year later, the money had not been transferred, and Williams had taken nearly all the funds from it. In May 2013, he transferred $10,000 of personal funds back into the account. He then depleted the account again and secured personal funds to replenish it. However, while the account still had $10,800, financial experts estimated the children lost about $9,000 by not having the annuity.

The Office of Disciplinary Counsel filed complaints with the professional conduct board that included violation of the Code of Judicial Conduct for Williams’ failure to disqualify himself in cases where his impartiality could be questioned, and for violations of the rules governing attorneys including engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; not acting with reasonable diligence when representing a client; and engaging in conduct prejudicial to the administration of justice.

Williams told the board he had no intention of continuing to serve as the magistrate in A.B.’s eviction case but did not know how to recuse himself. He also said A.B. began abusing him and that he was diagnosed with post-traumatic stress disorder (PTSD) caused by their relationship. He entered into a five-year contract with OLAP.

The Court found Williams failed to establish that PTSD played a role in the causing his misconduct as an attorney, but acknowledged “he practiced law without incident for more than 20 years before he commenced his improper relationship with A.B.” The Court found a two-year suspension with 18 months stayed was appropriate as long as Williams complies with his OLAP contract, continues counseling for PTSD, does not engage in further misconduct, and makes full restitution to the children from the mishandled estate.

In the Court’s majority were Chief Justice O’Connor and Justices Pfeifer, Kennedy, French, and O’Neill.

Justices O’Donnell and Lanzinger dissented, writing that they would impose a two-year suspension without a stay.

2015-0293. Disciplinary Counsel v. Williams, Slip Opinion No. 2016-Ohio-827.

The oral argument is linked here. (Mike Frisch)

March 8, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, March 3, 2016

The Man From Stanford (Sort Of)

The Oregon Supreme Court has affirmed the dismissal of proceedings against a judge.

The facts, taken from the record, are as follows.

In 2010, before he became a judge, respondent attended a week-long “trial academy” presented by the International Association of Defense Counsel (IADC), held on the campus of Stanford Law School. Although held on the Stanford campus, the academy was not affiliated with that school. Upon completion, respondent received a certificate stating that he “successfully completed the course of instruction at the IADC Trial Academy, Stanford Law School[.]”

In 2013, respondent filed for election to an open judicial position on the Deschutes County Circuit Court. Aspart of his initial form submission to the Secretary of State, under “Education Information,” “Educational Background (schools attended),” respondent listed his college and law school degrees, and under a related section, “Educational Background (other),” respondent identified his participation in the academy as follows: “International Association of Defense Counsel: Trial Academy Graduate, at Stanford Law School.” (Emphasis added.

 After respondent completed his Secretary of State submission, he prepared a voters’ pamphlet statement, limited to a 325-word narrative. To prepare that narrative, he  reviewed the Elections Division’s Candidates Manual for compliance, and he also consulted with colleagues. Respondent decided to include a reference to the academy in a section that contained his college and law school information, which he entitled “Educational Background.” In doing so, he did not include the word “at” before “Stanford Law School,” as he had in his earlier Secretary of State submission; instead, he replaced “at” with a comma. He initially used “IADC” to describe the academy—specifically writing “IADC Trial Academy, Stanford Law School”—but he eliminated that modifier after a judge who reviewed the draft statement suggested that it was not recognizable. Respondent opted not to spell out “IADC” so that he could save four words to use elsewhere in his statement. He asked a different judge to review an updated draft that removed “IADC,” and that judge told him that nothing about “Trial Academy, Stanford Law School,” appeared misleading to him. Respondent’s
final voters’ pamphlet statement therefore stated, “Trial Academy, Stanford Law School,” as part of his educational background.

The assertions became a campaign issue and, after he was elected, an alleged ethical violation.

The court

As to the allegation under Rule 5.1(D) (false statement relating to judicial campaign), the commission determined— as respondent argued below—that respondent’s voters’ pamphlet statement had not been “false” within the meaning of that rule. After reviewing the record, even if respondent’s statement qualified as a “false statement” for purposes of Rule 5.1(D) (which we do not decide), we are not persuaded by clear and convincing evidence that respondent acted with the requisite mental state.


(Mike Frisch)

March 3, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, February 28, 2016

Judicial Ethics Opinions From South Carolina

An opinion of the South Carolina Advisory Committee on Standards of Judicial Conduct.

A Family Court judge is not required to disqualify himself or herself from a proceeding involving their secretary’s attorney. However, the judge should disclose any relevant information regarding any possible disqualification on the record...

Here, none of the judge's relatives will appear as an attorney in a proceeding. See Advisory Opinion 10-2012. The secretary’s attorney is not "the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person" as prohibited by Canon 3E. Id. Therefore, the judge is not disqualified from presiding over matters where his or her secretary’s attorney appears. However, under the commentary of Canon 3E, “[a] judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.” Id. In addition, the judge’s secretary should not be involved in any matter in which the attorney representing her appears.

This opinion permits a magistrate judge to serve as executor of the estate of a close friend

A magistrate court judge has an elderly family friend who has appointed the judge as Executor of her will and as her agent under a Health Care Power of Attorney . The judge has known the friend for forty years. The friend is a widow with no children, and the judge has been like a child to her. The friend is considered to be a grandmother to the judge’s own child and is included in all family functions. The judge inquires as to whether serving as Executor of the friend’s will and as the friend’s agent under a Health Care Power of Attorney would violate the Code of Judicial Conduct.

And this opinion blesses service on a foundation board so long as no fund raising is involved.

A retired Circuit Court judge, who still holds court, has been asked to serve on the Board of Directors a charitable foundation that was created in honor of a former client of the judge’s. The foundation is committed to youth development programs to promote Christian values, education, and life-skills development. The foundation’s goal is to build a boys and girls’ center to help at-risk children in the community...

A retired Circuit Court judge may serve on the Board of Directors for a charitable foundation, provided that the judge does not engage in fund-raising and that the judge’s title is not used in any materials published by the foundation.

(Mike Frisch)

February 28, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, February 25, 2016

"Your Favorite Judge"

The Ohio Supreme Court has permanently disbarred a judge convicted of mail fraud.

The report of the Board of Commissioners on Grievances and Discipline had this snippet of the evidence of a conversation with a litigant

Frank Russo: Hello.

Respondent: Frank, your favorite Judge.

Frank Russo: Hey, Stevie, how are you?

Respondent: I'm doing well, how are you?

Frank Russo: I'm doing really, really, really good ...

Respondent: ... Hey Renee called and said you wanted me to call you?

Frank Russo: Yeah, I just wanted to let you know. Did Robin give you those case numbers?

Respondent: Yes.

Frank Russo: OK. In other words, I talked to you about this once before, it's about denying the motions for summary judgment.

Respondent: Yep. I still have the note that you gave me.

Frank Russo: OK. Good. Deny the motions for summary judgment. Good.

Respondent: Got it.

 Frank Russo: Ok, good. No that was all, I just wanted to touch base with
you on that, and that's it ...

 He was convicted of, among other things, accepting gifts from Russo.

The Board

the Board voted to modify the sanction recommended by the hearing panel and recommends that Respondent, Steven James Terry, be permanently disbarred from the practice of law in Ohio.

The court agreed.

Cleveland.com had the story of the criminal trial. (Mike Frisch)


February 25, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (2)

Saturday, February 20, 2016

Kentucky Speaks On Judicial Campaigning

The Kentucky Supreme Court answered three certified questions  from a federal district court concerning ethical restrictions on campaigns for judicial office

These canons were promulgated by this Court with the objective of complying with Section 117 of our Constitution requiring that "Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law." (Emphasis added.) We interpret this provision of the Kentucky Constitution as directing that Kentucky's judicial elections be nonpartisan in truth and substance, and not merely in process and procedure by the superficial omission of a political party designation on the voting ballot. Accordingly, we provide the following certification of Kentucky law in response to the District Court's questions.

The facts

Robert A. Winter, Jr., filed to run in the May 2014 primary election as a candidate for circuit court judge in the 16th Judicial Circuit (Campbell County). As part of his campaign strategy, Winter mailed brochures to registered Republican voters identifying himself as a registered Republican and, conversely, identifying his opponents as registered Democrats. After the brochures were sent out, the Kentucky Judicial Conduct Commission (JCC) notified Winter that it had received complaints that his brochures violated the Kentucky Code of Judicial Conduct. Winter responded in June 2014 by filing suit in the District Court against the JCC challenging the constitutionality of Canons 5A(1)(a) (prohibiting judges and judicial candidates from campaigning as a member of a political organization) and 5B(1)(c) (prohibiting judges or judicial candidates from making "false" or "misleading" statements). During the same election cycle,

Cameron Blau entered the race as a candidate for district court judge in the 17th Judicial District (Campbell County). Because Blau likewise intended to openly campaign as a Republican and send brochures likewise identifying himself as a Republican, in October 2014, Blau filed an intervening complaint to join Winter's challenge to Canons 5A(1)(a) and 5B(1)(c). As relevant here, Blau also challenged the constitutionality of Canon 5A(1)(b) (a judicial candidate shall not "act as a leader or hold any office in a political organization"). In his complaint, Blau stated that he wanted to send out brochures to potential voters identifying himself as "the only Republican candidate for Judge," or "the Conservative Republican candidate for Judge" and identifying his opponent as "the Democrat candidate" or the "Liberal Democrat for Judge." Blau also indicated in his complaint that he wanted to seek the endorsement of the local Republican Party, host events for the local Republican Party, and make political donations to members of the Republican Party.' In a lengthy order preliminarily addressing the constitutionality of the canons under review (the Injunction Order), the District Court concluded that there was a likelihood that each of the canons at issue was unconstitutional, and granted Blau's motion to prevent the JCC from enforcing the canons against him in the November 2014 election.

The third question dealt with the question whether an appointed judge could indicate that she was seeking "re-election."

Key holdings

there is a vast difference between the permissible speech of a judicial candidate identifying herself as a member of a political party and the impermissibly deceptive conduct of representing herself as the nominee of a political party. The former statement would be true; the latter is by any standard, blatantly false. Canon 5A(1)(a) draws that distinction...There is no "Republican candidate" for that office; the assertion is materially false and misleading. See Canon 5B(1)(c) (prohibiting materially false statements). Political parties and factions do not select or nominate candidates for judicial office in Kentucky. Canon 5A(1)(a) merely recognizes and faithfully codifies this Constitutional reality...

Under the current state of affairs of modern American politics, the Republican Party is commonly regarded as occupying the conservative side of the political spectrum, and so the addition of the modifier "Conservative" is surplusage, doing nothing to dispel the implied falsehood that the candidate is running for Kentucky judicial office as the formal candidate of the Republican Party...

The statement by a candidate that his opponent is "the Democrat candidate for Judge" is an impermissible message to the voters. His opponent is not, in fact, the Democrat candidate for Judge. As previously explained, such candidates do not exist in Kentucky, and such a campaign message would therefore amount to a blatant falsehood. See Canon 5B(1)(c) (prohibiting materially false statements).

Question Two is answered thus

Consistent with the definition of "acting as a leader," as just discussed, one who hosts an event for a political party is "acting as a leader" for the party. Merriam-Webster defines "host" as: "1 a: one that receives or entertains guests socially, commercially, or officially; b: one that provides facilities for an event or function . . . ." 1 ° Therefore, someone who provides the facilities for an event of a political party or officially receives the political party attendees is, indeed, acting as a "leader" of a political party. The "host" of an event, political or otherwise, uses the prestige of his or her name to promote the event and exerts a significant measure of control and authority over the event, more so, in our view, than the more passive political delegate function in Blauvelt. Perforce, a judicial candidate hosting a political event acts as a leader of that event and is, in turn, acting as a leader of the political party on whose behalf the political event is being held. Under Canon 5A(1)(b) that is prohibited conduct.

Question Three dealt with "knowing falsehoods" in judicial elections

A false statement is a statement that is not factually true in the normal sense; that is, an untrue utterance. For example, it would include such statements as: "I graduated first in my class" when the candidate did not; "I have won all of my cases as an attorney" when the candidate had not; "I was an officer in the military" when the candidate was not; or "my opponent was convicted of a drug offense" when the opponent was not. 

The provision does not, however, cover expressions of opinion because expressions of an opinion do not implicate a statement that is not factually true. For example such statements as "Justice Stevens was the best Justice ever"; "Citizens United was the best decision ever"; or "my opponent is too liberal" are all expressions of opinion and not subject to Canon 5B(1)(c). 

In summary, Canon 5B(1)(c) extends only to statements made during a campaign which are objectively factually untrue and do not extend to expressions of subjective opinions or innocuous campaign-trail "puffing" ("I am the most qualified candidate in the state.")...

...when an incumbent judge uses the word "re-elect" as campaign stratagem to persuade the public that she acquired the office by the • popular vote of the people rather than as the appointee of a governor, its use is calculated to mislead and deceive the voters. Accordingly, we distinguish these informal, idiomatic usages and regard these journalistic references as irrelevant to our review.

The common understanding of the term "re-elected"means that the candidate has been elected once before rather than appointed. 

Unanswered: What if the word "retained" was used?

Judge Noble concurred and dissented.

Coverage of the opinion here by the Associated Press from the Lexington Herald Leader, which described Justice Noble's views

Justice Mary C. Noble dissented with part of the decision. She said she saw no distinction between a judicial candidate describing himself as the only Republican candidate and as a conservative. Neither should be permitted, she said in a separate opinion. Justice Samuel T. Wright III joined her.

"Our Constitution requires that judicial candidates be non-partisan candidates, and declaring oneself to be any kind of Republican (or Democratic) candidate adds partisanship to the actual candidacy, rather than stating in which political party one has membership," Noble wrote.

(Mike Frisch)

February 20, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, February 11, 2016

Child Of The Judge

A new opinion from the Florida Judicial Ethics Advisory Committee


Whether potential ethical violations are raised for a judge when a law firm publicly acknowledges, promotes, or markets the fact that an attorney with the law firm is the child of a specifically named judge.

ANSWER: Yes. The judge must adamantly and genuinely encourage the law firm not to publicly acknowledge, promote, or market the attorney’s relationship with the judge.


...publicly announcing and marketing the relationship between the Inquiring Judge and child lends the prestige of judicial office to advance the private interests of the law firm to which the Inquiring Judge’s child is a member. The public may be inclined to use this particular law firm because of the specific advertisement of this familial relationship between the judge and attorney child. Furthermore, it gives the public the impression that because the Inquiring Judge’s child is an attorney in the firm, that law firm has a special relationship with the Inquiring Judge or the Inquiring Judge’s colleagues. Utilizing the judge’s office in this fashion runs afoul of Canon 2B. See also Fla. JEAC Ops. 13-23 (judge ethically prohibited from posing for church photograph for “God and Country Day” to be published in newspaper if the photograph is to be utilized in the solicitation of members or donations); 10-35 (sitting judge may not permit mediation firm that judge will be joining to send out announcement that sitting judge will be joining the firm upon retirement); 03-03 (judge’s participation in a law firm's litigation program by presiding over mock trials at a law firm’s training retreat gives other firms and public the perception that judge has a special relationship with that particular law firm).

The JEAC recognizes that the law firm may reject the Judge’s request not to promote or advertise the Judge’s parent-child relationship with the attorney in the law firm. As we have instructed other judges in other JEAC opinions in which a third party is involved, the Inquiring Judge is advised to adamantly and genuinely encourage the law firm not to promote this relationship. See Fla. JEAC Ops. 12-06 (judicial candidate must encourage spouse not to campaign at a political party function wearing the judicial candidate’s campaign badge); 11-10 (judge instructed not to permit judge’s home to be used for a campaign gathering on behalf of a political candidate who is not a member of the household and judge must adamantly and genuinely encourage the spouse to host the event elsewhere). The Inquiring Judge is not ethically responsible for the actions of the law firm or any third party once the Inquiring Judge has apprised the third party not to take this action.

(Mike Frisch)

February 11, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, February 10, 2016

Little League Thefts Lead To Removal Of Town Court Justice

The resignation of a town court justice has been accepted by the New York Commission on Judicial Conduct.

From the stipulation

On December 15, 2015, Judge Powers pled guilty to a reduced charge of fourth degree grand larceny, also a felony, admitting that between October 2007 and July 2014, she stole an amount exceeding $1,000 from bank accounts belonging to the Russell Pee Wee Association at the North Country Savings Bank, where she was employed.

Syracuse.com reported the resignation of the justice, who is not an attorney. (Mike Frisch)


February 10, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, January 29, 2016

McCree Suspended

A former judge has been suspended for two years in Michigan

Respondent appeared at the hearings and filed an answer to the formal complaint. The hearing panel found that respondent had committed professional misconduct during his tenure as a Wayne County Circuit Judge, when he engaged in an extra-marital affair with a litigant in a child-support case assigned to his courtroom; communicated with the litigant and presided over various aspects ofthe case during the course of his affair; and failed to recuse himself for several months. The panel also determined that respondent presided over a case involving a relative of the litigant with whom he was having the affair, and that he conferred with her before issuing a bond reduction in the matter. The panel further determined that respondent made false and misleading statements and representations to the Wayne County Prosecutor and the Judicial Tenure Commission relating to his actions in those two cases.

The hearing panel found that respondent's conduct was prejudicial to the proper administration of justice, in violation of MCR 9.104(1); exposed the legal profession or the courts to obloquy, contempt, censure, or reproach, in violation of MCR 9.104(2); was contrary to justice, ethics, honesty, or good morals, in violation of MCR 9.104(3); violated the standards or rules of professional conduct adopted by the Supreme Court, in violation of MCR 9.104(4); and, knowingly misrepresented any facts or circumstances surrounding a request for investigation or complaint, in violation of MCR 9.104(5). The panel further found that respondent violated or attempted to violate the Rules of Professional Conduct, knowingly assisted or induced another to do so, or do so through the acts of another, in violation of MRPC 8.4(a); engaged in conduct involving dishonesty, fraud, deceit, misrepresentation, or violation of the criminal law, where such conduct reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer, in violation of MRPC 8.4(b); and, engaged in conduct that is prejudicial to the administration of justice, in violation of MRPC 8.4(c).

Abovethelaw had this (illustrated) story on the misconduct. 

I am saddened in part for the impact this situation has on the memory of his father - former federal circuit court  judge and United States Solicitor General Wade McCree.

One of the great thrills of my life was arguing a case in the Supreme Court against General McCree in 1977. One of the great gentlemen I ever encountered in my life. I still have and cherish the note he wrote me after the argument. (Mike Frisch)

January 29, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, January 26, 2016

Removal Proposed For Judge Who Hung Hitler Portrait In "Hall Of Heroes"

The Oregonian has a report concerning the conduct of a state court judge

A state commission recommended Monday that Marion County Circuit Judge Vance Day be ousted from his job for his refusal to marry same-sex couples and other ethical violations.

The Oregon Commission on Judicial Fitness and Disability made its rare recommendationto the Oregon Supreme Court in a 48-page report. The high court ultimately will decide whether to remove Day from the bench.

The nine-member commission -- which held a two-week hearing in November into Day's conduct -- concluded that he has undermined public trust in the judiciary and that he should no longer be allowed to work as a judge.

"Judge Day shows no outward sign of comprehending the extent or nature of his ethical violations," the commission wrote. "His misconduct is of such a nature as to impugn his honesty and integrity."

Day released a statement through a spokesman, saying he and his legal team are "disappointed" with the commission's findings.

"A quick review of the decision indicates that the Commission's 'finding of facts' are at odds with evidence presented at the hearing, and some have no evidentiary support at all," the statement read. "The opinion is especially troubling because it disregards Judge Day's First Amendment rights to freedom of religion, speech and association. He will vigorously defend these rights, and his innocence of the remaining charges, before the Oregon Supreme Court."

Among the commission's findings:

Day instructed his staff members to embark on a "discriminatory plan" by telling people that they would have to check the judge's schedule before he could perform a wedding, the commission said. The judge then told his staff to investigate if the couples were gay.

If so, staff members were to tell the couple that the judge was "unavailable" on the requested day and to call another judge, the commission said.

"Judge Day is a Christian whose firmly held religious beliefs include defining marriage as only between a man and a woman," the commission said in its decision.

The commission noted that those beliefs clash with U.S. District Judge Michael McShane's ruling in May 2014 overturning Oregon's ban on same-sex marriage.

Marion County Circuit Judge Cheryl Pellegrini told the commission that when she was appointed to the bench in 2014, Day invited her out to breakfast and told her he was opposed to her appointment because of her sexual orientation as a lesbian. Day, however, said he told Pellegrini that he was opposed because she had been a government lawyer. The commission found Pellegrini's account "to be more credible."

Beyond the issue of marriage or sexual orientation, the commission found that Day committed many other ethical missteps, including some "amounting to criminal behavior."

The commission said that Day intentionally deceived media and the public by saying he was being unfairly attacked by the commission because of his religious beliefs when in reality the commission had been investigating him for other concerns before discovering his refusal to marry same-sex couples.

"His misconduct is not isolated," the commission wrote. "It is frequent and extensive. ...(P)ossibly the most disturbing, Judge Day has engaged in a pattern of dishonesty. Although the goal of much of his disingenuousness appears to be covering up misconduct, some of this conduct seems to have other independent objectives."

The commission found that Day has little insight into "the boundaries required" for being a judge.

For example, the commission wrote that Day included a portrait of Adolf Hitler in a "Hall of Heroes" artwork display he erected in the Marion County Courthouse. When Presiding Judge Jamese Rhoades told him to take it down, he told her, "You don't want to go there because some very influential people in this town want it up," the commission wrote. Rhoades viewed that as "a veiled political threat," the commission said.

The commission found that Day did ultimately take down the portrait, but was reimbursed twice for the $879 that he spent matting it.

Among other problems with boundaries, the commission said that the judge hired defendants he was overseeing on probation to help with home projects for himself and his family.

The commission also said that Day "relentlessly" texted and sent personal photos to a felon who was on probation, even though the felon was trying to avoid a personal relationship with Day. The felon was a Navy Seal, and the commission wrote that Day compelled the man to introduce Day to the his Navy Seal friends and that Day even brought one "noted Navy Seal" to a wedding to "show him off."

What's more, the commission found that after Day's son was hurt during a Chemeketa Community College soccer game in 2012, Day shoved "his judicial business card at a soccer referee" to intimidate the referee because Day was mad at him for a call he'd made before his son's injury.

Day also allowed a felon to handle a gun -- despite knowing that was illegal -- so the man could help Day's son prepare for his entry into the military, the commission said.

Day is in his mid-50s, married and a father of three. He has been a licensed attorney in Oregon since 1991. He was appointed to be a Marion County Circuit judge in 2011 and elected in 2012.

Read the commission's report here.

-- Aimee Green

(Mike Frisch)

January 26, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, January 21, 2016

Too Late To Disqualify?

A post from sunEthics

Judge presided over a criminal case in which the defendant was a City of Sweetwater police officer charged with official misconduct.  The State filed a motion to disqualify Judge, citing these grounds:  “(1) the trial judge’s acknowledged previous attorney-client relationship with the City of Sweetwater Police Department, which appeared as a third party duces tecum witness before the trial judge on a show cause order why it should not be held in contempt for its failure to comply with a subpoena duces tecum for production of documents; (2) the trial judge’s acknowledged personal and extra-judicial knowledge regarding facts asserted during that discovery dispute; and (3) the trial judge’s  acknowledged previous attorney-client relationship with the defendant, who he represented in another case.”

          Judge denied the motion as untimely.  The State petitioned the Third DCA for a writ of prohibition.  The appellate court denied the petition.  “While these allegations give rise to an objectively reasonable fear of bias or prejudice requiring disqualification of the trial judge, we are compelled to deny the petition for writ of prohibition because the motion to disqualify the trial judge was not timely filed.”  The court went on to indicate that Judge should step aside voluntarily:  “Although we have denied the petition, we note that rule 2.330(i) permits a judge to enter an order of disqualification on his own initiative.”   State v. Oliu, __ So.3d __ (Fla. 3d DCA, No. 3D15-2426, 1/6/2016), 2016 WL 63662. 

(Mike Frisch)

January 21, 2016 in Judicial Ethics and the Courts | Permalink | Comments (1)

Monday, January 18, 2016

Charles Manson Comes To Michigan

A complaint filed against a family court judge by the Michigan Judicial Tenure Commission alleges, to put it charitable, rather rough treatment of children subject to a joint custody order.

The judge's bad day has  drawn widespread attention, reflected in this post from the Oakland Press News

Reaction was split this week at The Oakland Press’ Facebook page regarding a complaint being authorized against an Oakland County Circuit Judge.

The Michigan Judicial Tenure Commission authorized the formal complaint on Monday against Judge Lisa Gorcyca, who has been at the center of controversy in a custody case involving a Bloomfield Hills couple.

Gorcyca is accused of misrepresenting the law and lying to the commission in a response to a letter. She is required to file a formal response to the complaint within 14 days of being served.

The custody case, involving Omer and Maya Tsimhoni, gained national interest last summer after Gorcyca ordered the children taken to Oakland County Children’s Village for refusing to speak with their father.

“I hope you will do your job when it comes to investigating the laws this judge broke,” wrote reader Marie Garcia, directing her comment toward the commission.

“Citizens are not allowed to break the law, or they pay (the) consequences. Judges should be even more ethical. Please remove her from the bench before she hurts any more children.”

Travis LaFalce said Gorcyca might be better suited on a TV production.

“If she wants to be unethical and a witch, then she should be on the set of Judge Judy,” he wrote.

“Her kind of power trip has no place in a real courtroom. Everyone needs to remember that this woman is up for re-election next year, and we all need to vote her out of office.”

Others were supportive of Gorcyca.

“Finding Judge Gorcyca guilty of any wrongdoing in this case would be a shame,” wrote Laura Baldwin.

“The last person the children need to be with is their seemingly very unstable mother. I’m praying that the justice system doesn’t take a giant step backward because of a bunch of looney abusive ‘mothers.’ To send the children back into such a toxic atmosphere would be a travesty.”

Aaron John Wilson said Gorcyca came down hard on his ex-wife during divorce proceedings because she did not answer clearly.

“I may be a little biased, but I think that kind of straight forward approach is respectable and appreciated,” he wrote.

The process could be a lengthy one, according to the explanation of the public disposition of grievances listed on the commission’s website.

After Gorcyca responds to the charges, a hearing will be scheduled. The commission has requested for the Michigan Supreme Court to appoint a master (an active or retired judge) to hear the case, take evidence and report to the commission.

After the master files a report, Gorcyca would be able to file objections and to brief issues to the commission. An opportunity for oral arguments is presented prior to a decision by the commission.

The commission has no authority to discipline a judge. It can either dismiss the matter if there is insufficient evidence or recommend that the Supreme Court censure, suspend, retire or remove a judge from office.

If the commission recommends action, a record is filed in the Supreme Court within 21 days. Within 28 days of receiving a copy of that record, the judge can petition the Supreme Court to modify or reject the recommendation. The commission must respond within 21 days.

The matter is placed on the Supreme Court calendar and both the judge and the commission can present oral arguments. After reviewing the record, the Supreme Court issues an opinion and judgment. The judge is allowed to file a motion for rehearing in the Supreme Court unless the court directs otherwise in its opinion.

Brian Dickerson of the Detroit Free Press had commentary.

Like most of those who witnessed it live, I winced when I read the transcript of the June 24 hearing, in which the judge compared the children -- then ages 9, 10 and 13 -- to mass murderer Charles Manson's cult followers and insinuated they could be forced to spend the rest of their childhoods at Children's Village, which is both a detention facility and a way station for children in crisis.

But a review of the 5 1/2-year record of the underlying divorce and custody case led me to conclude that Gorcyca had merely suffered an unseemly meltdown in the course of a long, frustrating campaign to maintain the children's emotional ties to both parents.

In the social media firestorm that erupted after the children's mother took her story to a local TV station, Gorcyca hastily vacated her contempt judgment against the children and ordered them transferred to a summer camp in Ortonville.

But the hearing attracted the attention of the Judicial Tenure Commission, which issued a complaint late Monday ordering Gorcyca to respond  the commission staff's allegations that her behavior in the June 24 hearing violated the state's Code of Judicial Conduct. The commission's investigators specifically accused Gorcyca of ridiculing the divorcing couple's children in court, exaggerating the legal punishment she could impose for their continued failure to engage with their father, and generally scaring the stuffing out of them.

The complaint alleges that Gorcyca had a sheriff's deputy handcuff the children in open court and laughed at them even as the youngest wept and trembled with fear.

Unfortunately for Gorcyca, all this took place an Oakland County courtroom where video cameras capture every word and gesture of the participants in any legal proceeding.

(Mike Frisch)

January 18, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, January 15, 2016

"Firm Yet Fair" Judge Asks Defendant Out: "Being On Probation Is A Complication"

A Michigan District Court judge was censured and suspended without pay for 30 days late last year by order of the Michigan Supreme Court.

After he had handled a domestic violence matter, the following took place with the defendant

In December of 2014, after seeing [the defendant] in the hallway of the courthouse, Respondent received a Christmas card from her, wishing him a [M]erry Christmas and thanking him for being “an extremely firm yet fair judge.”

Respondent wrote back to [the defendant], on court stationery, indicating that he was also pleased to have run into her in the hall at the courthouse. In that same handwritten note, he said,

“You continue to sound well. No need to thank me. Well, maybe you can.

“I am not sure of your marital status. But if you are not, would you be interested in seeing me? Being on probation is a complication. I am interested if you are.”

They exchanged emails through January 2015.

He interceded in a separate matter on behalf of a friend's daughter.

Michigan Live had details here, (Mike Frisch)

January 15, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, January 13, 2016

Southern Hospitality: "For The Sake Of Fellowship"

The South Carolina Advisory Committee on Standards of Judicial Conduct has opined that a judge and his attorney son may host a reception at the State Bar convention

...the reception planned by the inquiring judge is a purely a social event, to be hosted by the judge, and the judge’s attorney son. All judges attending the State Bar convention will be invited, so there is no appearance of partiality on behalf of the judge. Therefore, the judge is permitted to co-host, with his attorney son, a reception for other judges attending the State Bar convention.


 Canon 2 (A) of the Code of Judicial Conduct requires that a judge conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. However, a judge should not become isolated from the society in which he lives. Commentary, Canon 4 (A). In Opinion 32-1994, this Committee addressed this issue, stating: "[j]udges cannot be expected to sever all ties with society, including attending social occasions."

In Opinion No. 17-1995, this Committee stated that a judge is permitted to give a reception to thank friends in the community for allowing him to serve them as an elected official. Likewise, in 10-1997, the Committee found that a judge could host a reception for city employees and elected officials to express his appreciation. In Opinion 07-2003, we found that a family court judge could host a reception for attorneys in the judicial circuit in which the judge presides, in order to allow local lawyers and court personnel to meet on a non-work-related basis for the sake of fellowship.

(Mike Frisch)

January 13, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, January 12, 2016

All Rise

The Tennessee Board of Judicial Conduct has publicly reprimanded a General Sessions  Court judge who had

disposed of numerous cases which came before [him]...in which criminal and juvenile defendants were represented by his spouse, who is an attorney practicing in Montgomery County, Tennessee.

The judge cooperated with the inquiry and now understands that he cannot preside over his wife's matters even if they are uncontested.

The conduct apparently became a public issue when the spouse sought a judgeship.

The Leaf-Chronicle reported last June that there were 85  such matters.

Local attorney Sharon Massey Grimes uses her married name as chairwoman of the Montgomery County Republican Party and as chairwoman of the Clarksville Academy Board of Directors.

However, she uses only “Sharon Massey” in her application for a new Circuit Court judgeship and when she brings cases before her husband, General Sessions Judge Ray Grimes.

“When we got married, I had two small children and they had the last name Massey,” she said in an interview with The Leaf-Chronicle. “I went to law school and my last name was Massey, my law license is in Massey. It’s not to keep anything secret, but, you know, we have relatives who are lawyers, and most of the time, I didn’t want to confuse the other lawyers with myself.”

Judge Grimes, who also was part of the interview, added: “That was the deal on the front end. She made that decision before we got married. That was kind of a condition of us proceeding forward.”

Massey is among nine applicants to be interviewed this week for a new 19th Judicial District Circuit Court judgeship, which the state Legislature approved earlier this year because of the district’s growing population and expanding caseload. The judicial district includes Montgomery and Robertson counties.

The Governor's Council for Judicial Appointments will meet Tuesday at the William O. Beach Civic Center in Veterans Plaza to consider the nine applicants.

If Massey is appointed, the husband/wife team would occupy two of the soon-to-be 10 judicial positions in Montgomery County.

But this wouldn’t be the first time they have worked together.

85 Massey cases brought to Grimes

The Leaf-Chronicle reviewed the candidates’ applications and subsequently found that since 2008, Massey has brought cases for at least 85 clients before Judge Grimes, her husband.

According to the state Supreme Court’s Code of Judicial Conduct, “A judge shall uphold and promote the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”

The rules state in part: “A judge shall disqualify himself or herself in any proceeding in which the judge’ impartiality might be reasonably questioned, … (if) the judge know(s) that the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is: … acting as a lawyer in the proceeding.”

Massey, when questioned about her activities before the local court, said: “Never in the 16 years we’ve been married, have I ever tried a case in front of him. He has never made a decision on one of my cases.”

She and Grimes say all of the 85 cases were settlements or plea bargains that were reached outside of court, and Massey brought them to her husband to sign off on, a formality of the process.

“In 16 years, nobody’s ever complained,” Grimes said. “And I certainly wouldn’t do anything improper. The cases that are brought before me, that she brings, are brought by (an assistant) District Attorney, and generally, he’s there or has an indication that the police officer is there.”

Case files

A closer look at the 85 criminal cases in General Sessions Court where Massey is listed as the defense attorney and Grimes the judge shows a total of 117 offenses. Some clients had multiple charges and some returned during the seven-year period with new charges.

Of the 117 charges for Massey’s clients, Grimes signed dismissal agreements or granted judicial diversions on 62 of the charges.

A total of 23 charges were reduced to lesser offenses, with 21 of those being DUI charges reduced to reckless driving, and, in one instance, to public intoxication.

Nine of Massey’s clients, however, chose to enter guilty pleas to their full charges, and 13 were ruled guilty of their original charges.

A total of 10 charges were sent, or bound over, to a grand jury for a determination of whether the case should continue to Circuit Court. In each instance, the client waived the right to a preliminary hearing.

“Those decisions are made before we ever walk into that courtroom,” Massey said. “And he’s not making a decision; it’s an agreement between the defense and the prosecution.”

Grimes added that he is unable by rules of the court to change the agreements.

The Leaf-Chronicle’s review did not include juvenile cases of Massey’s clients that may have gone before Grimes. Juvenile records are not open to the public, and such cases would generally involve child custody matters, but offenses such as truancy and juvenile delinquency also are heard in Juvenile Court.

“His juvenile court, I rarely have any of those cases, ever,” she said. “His juvenile cases usually consist of truancy and custody, and all of my cases are either in Judge (Tim) Barnes’, Judge (Wayne) Shelton’s or Judge (Ken) Goble’s (court).

DA: ‘It shouldn’t be done’

District Attorney General John Carney said in an interview on Friday he was aware that Grimes has handled cases where his wife was the attorney.

“I didn’t realize there was that many of them,” Carney said, when asked about the case files. “Over the last several years, those kinds of cases were brought to our attention.”

He said the normal practice is to have a DA and a judge come in from a nearby jurisdiction to hear a case at trial if there is a conflict.

But what about a judge signing off on the prearranged settlements his attorney wife brings to the court?

“It shouldn’t be done,” Carney said with a pause. “I’m thinking in my mind how they could justify that. To me, it doesn’t make any difference. There is no difference, other than it probably looks worse, if you think about it.”

He said sometimes attorneys and police officers will “work around” the assistant DA to reach an agreement with the people involved.

“We try to look at every one of them,” he said of case settlements.

Carney added that he “guaranteed” that each of the DUI cases reduced to lesser charges had been reviewed by an assistant district attorney.

Further, he said, forms are now used to spell out terms of an agreement, which is signed by an assistant DA and presented to the judge. Thus, DAs and police officers do not have to be in the courtroom to indicate to the judge that an agreement is acceptable.

“I think it boils down to one question, does it appear improper for a spouse to practice law in her husband’s courtroom?” Carney said. “I would say that it’s not proper for the sole reason that it can be an appearance of impropriety. (But) it may not be. And there may not be anything wrong with (Grimes signing) the settlements.”

Carney said he needed to know more about each situation, and he planned to look into the matter more closely.

“I don’t know how it got to where it is, but we would definitely have some oversight to that,” he said. “And it would be our responsibility (to prohibit impropriety).”

“It might be a legal question that we might want to ask the Board of (Professional) Responsibility. Does it not say ... they should excuse themselves without any of us (DAs) having to ask that (ethical) question – then, that would be an automatic (solution),” Carney said. “The thing that would really resolve it is to cut out all of her taking cases that are criminal into his courtroom. That might be something that we want to do. I mean, that’s the only check and balance I see here.”

After Friday’s interview, Carney contacted the reporter to say he had spoken briefly with one assistant DA who assured him that “any cases of (Sharon Massey’s) that are going to have hearings, will be moved out of Judge Grimes’ court, usually to Judge Goble.”

Carney added that the assistant DA told him “extra precautions” are taken in cases involving Massey and Grimes “to be sure nothing gets past us.”

An outside opinion

Memphis Judge Alan Glenn, a Court of Criminal Appeals judge who heads up the Judicial Ethics Committee for the state Supreme Court’s Board of Professional Responsibility, said he could not give a definitive answer about whether Grimes signing off on his wife’s cases is improper without reviewing the cases.

“If these are where the judge is making no fact-finding, but is merely performing the function of signing off on agreements, that’s probably OK,” Glenn said. “It doesn’t happen a lot, but that is not uncommon when you have a situation for one reason or another, a judge, where there could be a conflict, the parties agree that the judge can go ahead and sign off on an agreement.”

He said such practices are more common in civil cases in probate court or in personal injury cases, but more so in Circuit Court than General Sessions.

“If these are guilty pleas where the prosecution and the defense lawyer and the defendant have agreed the disposition of this case shall be whatever it is, a judge has got to approve that. ... And if it’s on a settlement form, that’s OK,” Glenn said. “If the judge is called upon to make any fact-finding on anything that is disputed, that might be a problem.”

He said determining whether the practice creates a perception of being improper would be a judgment call.

“People have argued about what is the appearance of impropriety for years and years,” Glenn said. “That’s really put in as a catch-all. But the winner thinks there’s no impropriety and the loser thinks there is.”

Like Carney, Glenn said he would need more information before offering a definitive answer.

“What I would have to do is sit down and look at the files,” he said. “It may be OK, it may not be. Without the specifics, you just can’t tell. This may be perfectly all right. I don’t know. It may not be.”

Family business

The Massey/Grimes situation isn’t the only instance of spouses potentially being on the opposite side of the judge’s bench in the 19th Judicial District.

Last month, Circuit Court Judge John Gasaway’s duties were shifted from handling both criminal and civil cases to hearing only civil cases such as divorces. The change comes in the wake of his wife, attorney Carrie Gasaway, being convicted in May of extortion, sentenced to probation, and forced to give up her law practice for the rest of her life.

Presiding Circuit Judge Larry McMillan, who is chancellor for the district, said the change was part of a reorganization to shift the judges’ workloads with a fifth Circuit Court judge coming on board in September

Judge Gasaway was not mentioned in the case against his wife or during her trial.

Additionally, the wife of General Sessions Judge Ken Goble, Andrea Goble, is a practicing attorney in Clarksville.

Gasaway & Massey

A close look at Massey’s judgeship application indicates she tried to distance herself from a past partnership with Carrie Gasaway.

Massey indicated in her application that between April 2003 and October 2009 she was a partner with Carrie Gasaway, long before Gasaway’s conviction, along with her most recent law partner, Fletcher Long, for extortion.

Massey wrote in her application: “This was a real estate title company known as Gasaway & Massey. (This association dealt only in real estate closings.) This association was terminated by me in October 2009.”

However, an advertisement for Gasaway & Massey in the 2007 Clarksville telephone book indicates the firm handled personal injury, criminal defense, real estate, will/trust/estates, divorce/custody/adoption, and family law mediation.

“I can’t remember why we did it,” Massey said of the advertisement. “I’m not a big fan of the Yellow Pages. I can’t remember, that was so many years ago. I’ve been gone from her since 2009.”

She added later: “I wasn’t trying to minimize anything. That’s an unfortunate situation.”


Massey said she understands the scrutiny of her application and performance.

“I can tell you that at this time before the Judicial Selection Committee comes up, I’m sure there are people who would want to say, ‘Well, she’s a lawyer and he’s the judge.’ But you know, my integrity has never been questioned as far as this goes,” she said.

And Grimes believes his integrity is intact regarding any impression of impropriety.

“You can make that impression if you want,” he said. “I can’t keep someone from making it. All I know is there was no wrongdoing. If there’s no agreement, I will not hear it.”

Massey added: “And I wouldn’t ask him to hear it.”

They say that trying to keep within the rules of the judiciary is nothing new to them.

“We are well aware that we are a married couple, and that we are in the same field, and that I do not try cases in front of him,” Massey said. “I would put my ethics up against anyone.

“My application is far and above anyone else’s. I’m not saying I’m better than any of the other candidates, I’m just saying that I have significant experience. And I’m not going to do anything that is going to jeopardize my career in any way.” 

The Leaf-Chronicle also covered the Gasaway matter. (Mike Frisch)

January 12, 2016 in Judicial Ethics and the Courts | Permalink | Comments (1)

Monday, January 11, 2016

No Way To Treat A Judge?

The New York Commission of Judicial Conduct has censured a Supreme Court justice who drove drunk and asserted his judicial status when stopped

On October 17, 2012, respondent drove his car on Interstate 87 from Saratoga Springs to Colonie, New York, after voluntarily consuming a sufficient number of alcoholic beverages to cause him to become legally intoxicated...

Respondent had left Saratoga Springs around 3 :00 PM on that date, after attending a judicial conference. He testified at the hearing that he "drank pretty heavily" the preceding night, and while he did not recall drinking that day, it was "not unlikely" he did so.  The night before his arrest, respondent also took Xanax, which he had been prescribed, in an undetermined amount; however, the effect, if any, of this medication on his actions is uncertain and unquantifiable.

When stopped, he was polite but

...respondent at least twice volunteered that he was coming from a judicial conference although Sergeant McGreevy had not asked him where he was coming from or where he had been.

Respondent told Sergeant McGreevy that he wanted to show her his luggage in the trunk of his car in order to prove that he was coming from a judicial conference, and, despite Sergeant McGreevy's request that respondent not open the trunk, he did so.

After respondent was placed under arrest and handcuffed, he said to Sergeant McGreevy, in words or substance, "Is this how you treat a Supreme Court Judge?

During the drive to the State Police Station in Latham, respondent referred to the fact that he was a judge.

At the station house, respondent said, in words or substance, "Is this the way you treat a Supreme Court Justice?" and "Couldn't this just be resolved with a Speeding ticket?" and/or "Couldn't this just be made a Speeding ticket?"

 He has been treated for alcoholism.

The commission viewed the driving and assertion of judicial status as serious misconduct.

the record establishes that respondent operated his vehicle while intoxicated, at a high speed (at least 80 miles per hour) and in an unsafe manner, and continued to do so for two more miles while pursued by police, with emergency lights and siren activated, before stopping abruptly. While he was not charged with attempting to flee, his conduct imperiled the lives of others, including other motorists, their passengers and law enforcement personnel.

(Mike Frisch)

January 11, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, December 31, 2015

I'll Be Doggone

We greet 2016 with another case from the dogs.

The New York Commission on Judicial Conduct has admonished another one of the non-attorney town court justices for denying a fair hearing in a matter convened to determine whether a pit bull was a dangerous dog.

In handling a Dangerous Dog case during his first year as a judge, respondent made numerous procedural and substantive errors. Most seriously, he summarily ended the hearing before the attorney for the dog's owner had completed his case, which resulted in a decision made on an abbreviated record that deprived the dog's owner of the right to be heard pursuant to law. After the prosecutor had rested her case, respondent announced his decision that the dog was dangerous and that the case was over. Even if he was confused because a motion to dismiss was made before the defense had concluded, the attorney's repeated objections that he was "in the middle of my case" and wanted to call two additional witnesses should have prompted respondent to recognize that his decision was premature. Instead, he refused to be dissuaded, reiterating, "You were done ... We' re done." It also appears that respondent impermissibly excluded another defense witness from testifying because the witness had been in the courtroom during earlier testimony, although the prosecutor had not requested sequestration and no witness list was provided.

It is a fundamental principle of law that every person with a legal interest in a proceeding - civil or criminal - must be accorded the right to be heard under the law.

(Mike Frisch)


December 31, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, December 29, 2015

No Misunderstanding: "Iron Fist And Limp Wrist"

The Tennessee Board of Judicial Conduct has publicly reprimanded a chancellor for language in an order of dismissal that reflected his views of Obergefell v.Hodges.

The order is quoted in part

Although this Court has some vague familiarity with the governmental theories of democracy, republicanism, socialism, fascism, theocracy, and even despotism, implementation of this apparently new "super-federal-judiciary" form of benign and beneficial government, termed "klepocracy" by some and "judi-idiocracy" by others, with its iron fist and limp wrist, represents quite a challenge for a state level trial court.

The chancellor acknowledged that he "may have made an error" and that the order might be "misunderstood."

He had later vacated the dismissal and granted the divorce. (Mike Frisch )

December 29, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)


A non-attorney town court justice has been admonished by the New York Commission on Judicial Conduct for ex parte contacts with two persons charged with trespassing. One defendant also was charged with "hunting deer during muzzle-loader season without a muzzle-loading license."

The stipulation in the case  recites some prior issues 

Respondent, in his 3 5 years of judicial service (including 8 years serving concurrently in two town courts and 13 years serving concurrently in three town courts), was previously twice admonished for conduct in the Burns Town Court where he has served since 1980. In 2009, Respondent was admonished for failing to timely remit fines and fees to the State Comptroller, report traffic convictions, issue receipts, and use available means to punish defendants who had failed to appear to pay traffic fines. In 20 I 0, Respondent was admonished for failing to immediately disqualify himself in a harassment case despite knowing the parties and having personal knowledge of the underlying events. 

The misconduct

While arraigning two defendants charged with ECL violations, respondent listened to a defendant's "version of the story," reviewed a map of the alleged trespass site, identified locations on the map and discussed with the defendants whether they were public or private locations, asked the defendants about the events and listened to their explanations. As a judge for more than three decades, respondent should have recognized that allowing unrepresented defendants to give their "version" of events at an arraignment - for any reason - is strictly prohibited by the ethical rules. With no prosecutor present these were impermissible ex parte communications in violation of Rule 100.3(B)(6). Such communications can influence, or appear to influence, the judge who will be the trier of fact at a bench trial, and thus compromise the judge's impartiality. Moreover, questioning defendants at arraignment about the underlying events, as respondent did here, places the defendant in jeopardy of making incriminating admissions or other statements that might prejudice the defendant's position at trial.

The justice also stipulated that he had delayed the case. (Mike Frisch)

December 29, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, December 22, 2015

Impatience And Imprudence: Gonna Get Along Without You Now

The New York Committee on Judicial Conduct accepted the resignation of a town court justice who was alleged to have done the following

Judge Daniels was apprised by the Commission in August 2015 that it was investigating a complaint filed by its Administrator pursuant to Section 44(2) of the Judiciary Law, alleging that in various traffic cases and eviction proceedings, Judge Daniels exhibited impatience and intemperance toward participants, made comments suggesting that he had prejudged the cases, failed to make proper audio recordings of court proceedings as required, engaged in unauthorized ex parte communications and, in one case involving his former attorney, presided without disclosing the relationship to the parties.

As my friend and former colleague Ross T. Dicker has noted, these town court justices are not required to be attorneys.

Ross also likes a good oldie. Here's one that inspires this title. (Mike Frisch)

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

Saturday, December 19, 2015

Not Foreclosed

A judge who has been foreclosed is not foreclosed from handling foreclosure matters, according to a recent decision of the Florida Judicial Ethics Advisory Committee.

Approximately five years ago, the inquiring judge (and the judge’s spouse) were defendants in two lawsuits to foreclose on two residential mortgages the inquiring judge had taken on the family home. The foreclosure cases were resolved by short sale and the lawsuits were voluntarily dismissed a little less than four years ago.

The inquiring judge has now rotated back into the circuit-civil division where the judge sometimes handles older, and generally contentious, residential foreclosure cases. The judge inquires whether recusal is required from all residential mortgage cases, and, if not, whether disclosure is mandatory or merely prudent.


The inquiring judge is not required to recuse himself for all residential mortgage cases by virtue of having been a defendant years ago in a foreclosure action. Although no Florida Judicial Ethics Advisory Committee Opinion has addressed the specific question raised by the inquiring judge, some prior opinions are instructive...

The inquiring judge is not obligated to disclose the mortgage foreclosure proceedings that occurred nearly four years ago. In cases involving a judge’s personal involvement in litigation, this Committee has only recommended disclosure during the time a judge is involved in the litigation and for a reasonable period thereafter. See Fla. JEAC Op. 12-09 (“While the judge is involved in the foreclosure litigation as a tenant/defendant, and for a reasonable time thereafter, the judge has a duty, in foreclosure proceedings assigned to the judge, to disclose the facts and circumstances of the judge’s own litigation.”); see also Fla. JEAC Op. 02-05 (“[I]f the judge’s personal matter does result in litigation and if attorneys representing the judge or his former spouse appear before the judge, then disclosure or recusal is warranted.”).

Some guidance for determining whether a reasonable period of time has elapsed is found in Florida Judicial Ethics Advisory Committee Opinion 95-16, where the Committee advised that after the passage of a year, it is proper for a judge to hear cases involving a lawyer or law firm that represented the judge in litigation. See Fla. JEAC Op. 01-17 (“This Committee believes that the inquiring judge should make a disclosure of the prior relationship for a reasonable period of time following the conclusion of the law firm’s representation. This disclosure of information is not an admission of bias but is necessary to enable a party to make an informed decision as to whether or not to seek disqualification. A reasonable period of time has previously been suggested by this Committee to be from several months to one year, depending upon the unique facts and circumstances of the representation.”)...

...the inquiring judge need not recuse from all mortgage foreclosure cases, nor from all cases involving the same lawyers, lenders, or assignees involved in the judge’s residential foreclosure. Nor does the judge need to disclose the mortgage foreclosures filed against the judge’s personal residence. However, if the same lawyers, lenders, or assignees appear before the judge, the judge should disclose the prior litigation until such time as no reasonable person would find the disclosure relevant to a determination of whether the judge’s impartiality might reasonably be questioned.

(Mike Frisch)

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