Tuesday, November 5, 2013
A Tennessee judge charged with ethics violations for allegedly filing a bar complaint against an attorney in retaliation for the attorney's complaint against him has filed an answer denying misconduct and seeking dismissal.
In addition to procedural objections, the judge contends that "retaliation cannot be a basis for Formal Charges and the charges should be dismissed," that "the charges do not provide even a hint" as to the nature of the alleged misconduct and that the Board of Judicial Conduct had not acted promptly.
Further, the judge notes that the bar charges he filed against the attorney were dismissed even though he was never contacted and interviewed. (Mike Frisch)
Thursday, October 31, 2013
The Florida Judicial Ethics Advisory Committee has opined that a judge may not be a member of SUNPAC, described in the opinion as a political action committee that promotes stong ties between the United States and Israel.
The committee split evenly on the question whether the judge may attend SUNPAC events:
The Committee is evenly divided in resolving the second inquiry. One half is of the opinion that, due to the SUNPAC’s stated political purpose, the judge would be prohibited from attending any of its functions. To do so would give the appearance that the judge is supporting SUNPAC’s political positions and candidates it endorses. Therefore, the judge would be lending the prestige of judicial office to SUNPAC’s political positions and candidates it endorses, in violation of Canons 2B and 7.
The other half is of the opinion that, although SUNPAC is a political organization, it is not a political party. Therefore, mere attendance at an event may be permissible under very limited circumstances. The judge could attend only if the event was not a political party function (Canon 7A(1)(d)), the judge does not pay a fee to attend (Canon 7A(1)(e)), the judge’s attendance cannot be construed to be a public endorsement of a candidate (Canon 7A(1)(b), and the judge does not actively engage in any political activity (Canon 7D).
Although we cannot prejudge a particular event, in making the determination of whether the event is appropriate to attend, the judge should take into account not only subject of the program but also the advocacy of the organization. The more zealous, and the more one-sided the advocacy of the organization, the more weight the judge should give that factor in deciding whether to attend or not. If an organization had historically taken a very consistent, unwavering position on a highly political issue, that would create the rebuttable presumption that an event they were sponsoring on that issue was not informative but instead was an exercise in advocacy. That presumption could be rebutted by advance publicity concerning the event, the bent of the speakers, the location of the event and the totality of circumstances surrounding the event.
The Illinois Review Board has proposed a suspension of six months of a former judge for misconduct in office:
The Administrator charged Respondent with misconduct arising out of Respondent's actions as an associate judge in Sangamon County in dismissing a traffic citation issued to the daughter of another judge by indicating on the court file that the State had filed a motion to dismiss the citation due to insufficient evidence when Respondent knew that that State had not done so. The Hearing Board found that Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) and in conduct prejudicial to the administration of justice in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010). The Hearing Board recommended that Respondent be suspended for a period of six months.
The Spring 2013 edition of the Georgetown Journal of Legal Ethics is now available at this link.
Monroe Freedman has again published with us -- an article entitled "The Unconstitutionality of Electing State Judges."
There are also fine pieces on advising the president by William R. Casto, the development of law firm marketing by Silvia Hodges, the "reason-giving" lawyer by Donald J. Kochan and the forgotten foundations of the attorney-client privilege by Norman W. Spaulding.
Thanks to the authors and editors for this contribution to the legal profession. (Mike Frisch)
Friday, October 25, 2013
The Tennessee Board of Judicial Conduct has filed formal charges against a child support magistrate who ordered that a child's name be changed from Messiah to Martin.
The reasoning for the change:
This court finds that it is not in the child's best interest to keep the first name, "Messiah". "Messiah" means Savior, Deliverer, the One who will restore God's Kingdom. "Messiah" is a title held only by Jesus Christ.
The magistrate reasserted this view in a television interview.
The formal complaint alleges multiple violations of the Code of Judicial Conduct. (Mike Frisch)
Tuesday, October 22, 2013
A summary from Bret Crow on the web page of the Ohio Supreme Court
The Supreme Court of Ohio today overturned a judicial campaign conduct violation against an Akron judge.
Earlier this year, a five-judge commission upheld a hearing panel’s finding that Summit County Probate Court Judge Elinore Marsh Stormer violated Jud.Cond.R. 4.4(E). At the time of Stomer’s conduct, the rule prohibited a judicial candidate from participating in or receiving campaign contributions from a tiered judicial fundraising event. However, a rule change eliminating the prohibition became effective Jan. 1, 2013.
Judge Stormer’s opponent in the probate court race, Summit County Common Pleas Court Judge Alison McCarty, brought the complaint based on a 2012 fund-raising event in which contributions were categorized and recognized by amounts.
The Board of Commissioners on Grievances & Discipline certified the complaint on Oct. 23, 2012. A three-commissioner hearing panel of the board heard the case on Oct. 29, 2012 and filed its report and recommendation with the Supreme Court to find a violation and sanction Stormer on Nov. 5, 2012. The Supreme Court appointed a five-judge commission on Nov. 9, 2012, which filed its decision on Jan. 10, 2013. Stormer appealed the commission’s decision to the Supreme Court on Jan. 29, 2013.
The Supreme Court noted in its per curiam (not authored by one justice) opinion today that “it appears that Stormer is the only judicial candidate to be formally charged with a violation of former Jud.Cond.R. 4.4(E) in the 17 years that it was in effect. The commission’s finding that she violated the rule did not come until January 10, 2013 – ten days after the rule was abrogated.”
“In light of these unusual circumstances, the absence of any need to deter future conduct of this nature, whether committed by Stormer or any other judicial candidate, and Stomer’s exemplary record during her more than 30 years of legal practice, more than 20 of which have been spent on the bench, we conclude the no sanction is warranted,” the opinion concludes.
The court further concluded that Stormer did not “knowingly” violate the former rule and that not every violation warrants the imposition of discipline given the many factors at play in individual cases. The court also ordered the Office of Attorney Services to remove the violation from Stormer’s record.
The opinion is linked here. (Mike Frisch)
Monday, October 21, 2013
A recent opinion from the Florida Judicial Ethics Advisory Committee:
May a judge participate in a local cook-off competition being held at a Jamaican Jerk Festival which does not serve a fundraising purpose and the winners of which will receive a cash award and trophy?
The inquiring judge states is considering competing in a cook-off held during the 12th Annual Grace Jamaican Jerk Festival as a means of community outreach and levity. The cook-off affords chefs of all distinctions an opportunity to put their culinary skills to the test. The goal of the cook-off is to promote the flavors of Jamaica through the Culinary Arts, and to demonstrate the extraordinary talents and creativity of the participating individual. There is no indication from the inquiring judge that the cook-off serves a fund-raising purpose.
Because the contemplated cook-off does not appear to be a fundraiser and because participation in the cook-off would not appear to exploit the judge’s judicial position or involve the inquiring judge in frequent transactions or continuing business relationships with persons likely to come before the court on which the judge serves, the inquiring judge would be permitted to participate in the cook-off competition. However, the judge is cautioned to investigate or verify that the event is not a fund-raiser. As has been previously opined by this committee, if the event is a fund-raiser and the judge’s participation will be advertised or be used in a manner that would lend the prestige of the office for the advancement of the private interests of others, the judge would not be allowed to participate. See JEAC Opinions 2012-36; 2011-14; and 2010-15. Canons 5C(3)(b)(iii) and 2B.
The committee would also like to take this opportunity to reiterate the well-reasoned commentary associated with Canon 5A which provides “[c]omplete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives.”
Information about the festival is linked here. (Mike Frisch)
Tuesday, October 15, 2013
A part time village court justice was admonished by the New York Commission on Judicial Conduct.
The justice had issued an arrest warrant, set bail and issued a protective order in a matter involving rape charges against a defendent (Mr. Justice).
He thereafter met with the victim and her family and was retained to pursue civil claims against the defendant arising from the same facts as the criminal charges.
The justice (acting as a provate lawyer) sent a demand letter to the home of a member of the defendant's family but there was no indication that a suit was ever filed.
Monday, October 7, 2013
The Tennessee Court of the Judiciary has filed charges against a judge of the Shelby County General Sessions Court.
The complaint notes that an attorney who practices in the county had filed a complaint against the judge, which is attached to the charges here.
The allegation is that the judge violated the Code of Judicial Conduct by filing a bar complaint against the attorney "in retaliation" for the complaint against him and, further, asking the Board of Professional Responsibility to investigate another attorney listed as a witness in the complaint against him.
The bar complaint filed by the judge was dismissed. (Mike Frisch)
Friday, September 20, 2013
The New Jersey Supreme Court has held that a "judge's acting and comedy career is incompatible with the Code of Judicial Conduct and therefore [the judge] may not serve as a municipal court judge while continuing that career."
The judge goes by the stage name of Vince August and has played roles in a reality show called What Would You Do? Among the roles were are person engaging in racial profiling, a waiter who refused to serve to serve an interracial father and daughter, and a homophobic bar patron.
The court agreed with the opinion of the Advisory Committee on Extrajudicial Activities.
The judge has had a dual carrer as attorney and comedian. He "appeared regularly as a stand-up comedian at a noted comedy club in New York City." (Mike Frisch)
Sunday, September 15, 2013
The Indiana Law Blog has noted a complaint filed against a judge of Marion County who was elected to office in 2009.
The 53-page complaint filed by the Commission on Judicial Qualifications alleges that the judge delayed proceedings in multiple matters, to some extent caused by a policy of keeping files in chambers that made them hard to locate.
The judge allegedly created an enviroment of delay and dereliction of duties.
The judge allegedly expressed hostile feelings directed toward a revolving door of employees. The complaint states that the judge would choose "favorite" employee as a confidante who stayed in that favored position only so long as the employee maintained an attitude of sycophantic subservience.
Then, the favorite was in the same allegedly unpleasant boat as everyone else.
Further, the judge is alleged to created a hostile courtroom environment for attorneys, particularly some public defenders, who the judge allegedly "hated" and thought were "stupid."
Most seriously, the judge allegedly delayed the release on nine criminal defendants through administrative lapses. (Mike Frisch)
Thursday, September 5, 2013
A town court justice (who is not an attorney) has been censured by the New York Commission on Judicial Conduct.
The justice had reduced a speeding ticket for the daughter of a member of the town board.
He then attended a town board executive session to discuss the board's decision to deny him a pay increase and rebuked the member:
I took care of a ticket for [your] daughter...this is the thanks I get.
Then, he stated, that by refusing a pay raise, the board had "shoved it up [his] ass."
The commission found these words "shocking" and "ill-considered."
A dissent would require a hearing to "evaluate the effect of these statements by respondent on the appearence of impropriety and whether the appearance should disqualify him from further serving as a judge." (Mike Frisch)
Wednesday, September 4, 2013
A former Aiken County Magistrate has been publicly reprimanded by the South Carolina Supreme Court:
At the conclusion of a session of bond court, respondent kissed the clerk who had been working with him on the forehead. Respondent contends that the kiss was a gesture of appreciation for the clerk's hard work and that he in no way intended it to be an amorous gesture. However, respondent recognizes the clerk was offended by the gesture.
The magistrate resigned when the clerk complained to the Chief Magistrate. (Mike Frisch)
Thursday, August 22, 2013
The New York Commission on Judicial Conduct has censured a New York City Civil Court judge who acted as a fiduciary in four matters for non-relatives while serving as a full-time judge.
The conduct took place from 2009 to 2012.
The judge also failed to disclose a foreclosure proceeding against him in a form that required such disclosure.
The commission's press release is linked here. (Mike Frisch)
Wednesday, August 14, 2013
The Pennsylvania Court of Judicial Discipline found interim suspension without pay appropriate for a traffic court judge under felony indictment.
The court distinguished a prior matter against another judge suspended with pay because the charges against the other judge involve allegations of significantly lesser involvement.
Here, the judge was Administrative Judge of the Traffic Court and not only is alleged to have failed to stop errant behavior of other judges but "as many as six of the overt acts charged in the Indictment to have been personally committed by [the judge]...while he was Administrative judge.
In the case of this Respondent the conduct alleged in the Indictment is inherently disdainful of the laws he was elected to enforce, contemptuous of the law in general, took place over and over again, and became a way of life. And the law became a laughing-stock.
The opinion notes that the judge owned the Fireside Tavern and that the charges alleg that he fixed tickets for "family, friends, Fireside Tavern customers, a former politician and a Philadelphia ward leader." (Mike Frisch)
A town court justice who adjudicated a speeding ticket against his nephew by marriage has been admonished by the New York Commission on Judicial Conduct:
The record indicates that respondent's nephew by marriage appeared before him on two occasions with respect to the charge - initially to enter a not guilty plea, and later for sentencing. Seeing his relative, with whom he socialized several times a year, standing before him in a courtroom certainly should have reminded respondent - the defendant's uncle - of the clear conflict. In and of itself, the appearance of a judge's family member before the judge creates a serious apperance of impropriety, and under such circumstances the public can have no confidence in the judge's impartiality in the matter...Compounding the impropriety, the lenient disposition respondent imposed (reducing the Speeding charge to a parking violation and imposing a low fine) could reasonably give the impression that respondent's relative received favorable treatment, nothwithstanding that the prosecutor had recommended the reduction and notwithstanding respondent's assertion that his nephew's ticket was treated no differently than any similar ticket. Even the appearance of such favoritism is inconsistent with ethical standards and undermines public confidence in the integrity and impartiality of the judiciary.
The justice is not an attorney. (Mike Frisch)
Saturday, August 3, 2013
The Mississippi Supreme Court has imposed a 30-day suspension without pay and fined a Hinds County Youth Court judge who took action in a case after he had recused himself and abused his contempt power.
The basis for recusal was that the matter involved the relative of a court employee.
The court rejected the more lenient sanction jointly proposed by the judge and the Commission on Judicial Performance, stating that the commission "should examine the extent to which the conduct was willful and exploited the judge's position to satisfy his or her personal desires."
A concurring/dissenting opinion finds the sanction imposed to be unduly light:
I do not believe today's relatively mild punishment for illegally incarcerating two citizens and depriving them of contact with their children for months, will serve as much of a warning.
The concurring/dissenting opinion also notes that the judge acted because of an improper ex parte contact and caused the mother to be arrested in front of her four children. (Mike Frisch)
Thursday, August 1, 2013
A recent opinion from Florida's Judicial Ethics Advisory Committee:
1. May a judge running for re-election create a Twitter account with a privacy setting open so anyone — including lawyers — would be able to follow the account?
ANSWER: Yes, under specified circumstances.
2. May the judge’s campaign manager create and maintain the Twitter account instead of the judge?
In anticipation of the inquiring judge’s re-election campaign, the judge is considering using a Twitter account as one of the judge’s campaign tools. The inquiring judge explains that “Twitter does not require the account holder to select who follows the account holder’s ‘tweets.’ People just sign on and as the account holder ‘tweets,’ the account holder’s followers receive it . . . Another aspect of Twitter is the ability to create hashtags. All Twitter users then can search for tweets containing a specific hashtag . . . I could create a specific hashtag for my campaign account.”DISCUSSION
Prior JEAC opinions on the subject of social media have cited Canon 2B of the Code of Judicial Conduct as the applicable authority for restricting judicial use of social media. Canon 2B states in relevant part: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” The relevant part of Canon 2B is underscored here for emphasis. The analysis of the social media issue — specifically Facebook — focused upon selecting “Facebook friends.” The Committee opined that this function of Facebook lent itself to the appearance of impropriety, to wit: in choosing or declining to make someone — specifically a lawyer who appears before the judge — a Facebook friend, a judge “could convey or permit others to convey the impression that they [the Facebook friends] are in a special position to influence the judge.” Fla. JEAC Op. 2009-20.
Fla. JEAC Op. 2009-20 involved a judge inquiring in relation to the judge’s campaign plans. The inquiring judge’s inquiry was submitted in four parts:
- Could the inquiring judge post comments and other material on the judge’s social network site?
- Could the inquiring judge add lawyers as “friends” on the site, and permit such lawyers to add the judge as their “friend”?
- Could the inquiring judge’s election committee post material on the committee’s page if the material did not otherwise violate the Code of Judicial Conduct?
- Could the inquiring judge’s election committee establish a social networking site where lawyers — including those who might appear before the judge — could list themselves as “fans” or supporters of the judge’s candidacy so long as no one controls who is permitted to be listed as a supporter?
The Committee opined that Canon 2B allows judicial participation in a “subject matter” forum, and that:
[In] order to fall within the prohibition of Canon 2B . . . three elements must be present.
- First, the judge must establish the social networking page.
- Second, the site must afford the judge the right to accept or reject contacts or “friends” on the judge’s page, or denominate the judge as a “friend” on another member’s page.
- Third, the identity of the “friends” or contacts selected by the judge, and the judge’s having denominated himself or herself as a “friend” on another’s page, then must be communicated to others.
It is this selection and communication process, the Committee believes, that violates Canon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.
Based upon the inquiring judge’s explanation of Twitter, Canon 2B would not preclude a judge running for re-election from maintaining a Twitter account. The inquiring judge seeks to use a Twitter account for campaign “tweets” such as judicial philosophy, campaign slogans, and blurbs about the candidate’s background.
Twitter has several dimensions, however, in addition to those described in the judge’s inquiry. The site’s primary objective is to enable an account holder to share information to a population limited only by the number of Twitter account holders. Upon setting up a Twitter account, users have the option to control who sees their updates. True, as the inquiring judge states, users do not select followers. A user can, however, block specific followers, preventing those blocked from seeing tweets and other traffic on the user’s account. In addition, Twitter enables users to mark tweets as “favorites,” to create lists of Twitter users and subscribe to lists created by other users.
If a user posts a tweet that is complimentary or flattering to the inquiring judge, the judge could re-tweet it or mark it as a “favorite.” No matter how innocuous the tweet, this could convey or permit the tweeter to convey the impression that the tweeter is in a special position to influence the judge.
A judicial Twitter account user could create a list of followers. Those listed could be perceived to be in a special position to influence the judicial candidate. The inquiring judge could avoid this appearance by not creating any lists of followers. Still, if the inquiring judge were to appear on another Twitter user’s list of followers, that follower could create the impression of being in a special position to influence the judge. Twitter has a “direct message” feature that enables users to send messages directly to and receive messages directly from their “followers.”
Canon 5A, particularly subsections 5A(1), (2) and (5), beg consideration:
Extrajudicial Activities in General. A judge shall conduct all of the judge’s extrajudicial activities so that they do not:
(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) undermine the judge’s independence, integrity, or impartiality;
. . . .
(5) lead to frequent disqualification of the judge.
A judge’s Twitter account creates an avenue of opportunity for ex parte communication. Assume a Twitter user is a party who has a case assigned to a judge with a Twitter account. The party could send the judge a tweet about the case. The judge unwittingly would receive the tweet. The only way to avoid receiving the tweet would be if the judge knew the party’s Twitter account name, and exercised Twitter’s blocking option when the judge set up the judge’s Twitter account. Thus, although Twitter does not fall squarely on all fours of Fla. JEAC Op. 2009-20, it has features which could prove problematic as a campaign tool for a judge running for re-election.
The inquiring judge’s second inquiry suggests as an alternative that the campaign manager or another person connected with the judge’s re-election campaign set up the Twitter account. This is a more prudent option in that it would eliminate the potential for ex parte communication. Favorite tweets would not be selected by the judge, but by the campaign manager or committee. Caution should be applied, however, if any follower lists are created in the account.
In sum, the inquiring judge will not be in violation of Canon 2B if a Twitter account is created in that judge’s name. The most sensible way to use Twitter as a campaign tool would be for the judge’s campaign committee or manager to create and maintain the account.
Sunday, July 21, 2013
A magistrate from Pottawattamie County has been reprimanded by the Iowa Supreme Court.
The magistrate, who is permitted an outside practie of law, violated ethical standards by appearing in a business advertisement in his judicial robe.
The court noted that the ads ran in multiple venues for over a year and that the magistrate otherwise has had a distinguished judicial career. (Mike Frisch)
Tuesday, July 9, 2013
The Massachusetts Appeals Court has resolved the following issue:
The issue presented is whether a judge who sued her former law firm for unpaid compensation and lost should have recused herself from cases involving that firm, four years after the Supreme Judicial Court decided the case. Applying the two-part test set forth in Lena v. Commonwealth, 369 Mass. 571, 575 (1976), the judge concluded that she held no actual bias, and that no reasonable person would question her impartiality. We agree that there is no basis for recusal on the grounds of actual bias. However, given the protracted litigation, the judge's personal involvement in the lawsuit, the amount at stake, and the judge's inconsistent rulings on prior recusal motions, "an objective appraisal of whether this was 'a proceeding in which [her] impartiality might reasonably be questioned' " compels the conclusion that recusal was warranted. Ibid., quoting from S.J.C. Rule 3:25, Canon 3(C)(1)(a), 359 Mass. 841 (1972). Accordingly, we reverse the judge's orders denying recusal and remand these consolidated cases for further proceedings.
We have no reason to question the judge's good-faith belief that she could decide these cases fairly and impartially. However, even the appearance of partiality undermines confidence in the judicial system. In light of the judge's long-term relationship with [her former law firm] Morrison, the subsequent protracted litigation, her active participation in that dispute, the amount of the claim at stake, and her inconsistent rulings on prior recusal motions, we conclude that a reasonable person might question her impartiality. We therefore reverse the orders denying the judge's disqualification and remand for further proceedings before other judges. The stays previously entered in these matters are lifted.
The case is Commonwealth v. RV Morgan, LLC, decided today. (Mike Frisch)