Friday, May 20, 2016

Recusal Not Required In Smokers Cases

The Florida Judicial Ethics Advisory Committee has opined on the ethics of a judge handling tobacco-liability litigation where a relative may have a claim.

The facts

The inquiring judge is a circuit judge assigned to the circuit’s civil division that includes presiding over Engle Progeny cases. Engle Progeny lawsuits reference the Florida Supreme Court’s decision in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), where the ruling allowed Florida smokers who were members of the class to file lawsuits of his or her own on an individual basis and use the liability findings from the class action trial. "Engle Progeny" lawsuits stem from the Engle case filed in 1994, when six Florida smokers, including Dr. Howard A. Engle, filed a class action suit alleging that members of the class estimated at over 100,000 Florida smokers had been injured by cigarette usage by the tobacco industry.

The inquiring judge learned that in 2008 a late uncle, as the personal representative of the inquiring judge’s grandfather’s estate, filed an Engle Progeny case regarding the grandfather’s death. (Hereinafter, “2008 case.”) The 2008 case was filed within the inquiring judge’s circuit, assigned to another circuit judge and ultimately dismissed as being time-barred in 2016. The inquiring judge was not a beneficiary and there was no recovery by the estate. The inquiring judge was not aware of the case while it was pending, but learned of the family’s 2008 case when it was dismissed in 2016.

In 2014, the inquiring judge presided over one Engle Progeny trial which is final and disposed, and another in 2015 which is currently on appeal. The inquiring judge will preside over a third Engle Progeny case that will be proceeding to trial in 2016. The inquiring judge will be assigned future Engle Progeny cases as part of the assigned case load.


In reviewing this Committee’s prior precedents, this inquiry is the first involving an Engle Progeny case. However, we have addressed and found that neither prospective involvement as a plaintiff in a mortgage foreclosure, nor current involvement as a tenant/defendant in a mortgage foreclosure, mandated recusal by a judge in all cases concerning residential mortgage foreclosures. See Fla. JEAC  Op. 15-14.

Nor was the inquiring judge required to recuse in all cases involving the same lawyers, lenders, or assignees involved in the judge’s residential foreclosure unless the judge determines that the judge had a personal bias or prejudice against the lawyers, lenders, or assignees. In Florida Judicial Advisory Committee Opinion 97-12, the Committee advised that the decision to recuse, from cases involving a lawyer who represented defendants in a case where the judge was a plaintiff, was a “personal and case specific” decision.

Applying the applicable canons and case law to this inquiry, disclosure of the 2008 case would be advised on future Engle Progeny cases assigned to the inquiring judge.

If the same attorney that represented the inquiring judge’s family member’s case appeared before the inquiring judge on an unrelated Engle Progeny case, there could be the appearance of impropriety and the perception of being in a favorable position to influence the inquiring judge contrary to Florida Code of Judicial Conduct, Canon 2B which states a judge shall not “convey or permit others to convey the impression that they are in a special position to influence the judge.” On the other hand, if  the same attorney(s) that represented the tobacco company defendant in the 2008 case also appeared before the inquiring judge on an unrelated Engle Progeny case, there could be the appearance that the attorney(s) could be in an unfavorable position before the inquiring judge.

(Mike Frisch)

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

Judge Admonished For Failure To Recuse In Case Involving Her Personal (And Free) Attorney

The Iowa Supreme Court has admonished (not reprimanded) a judge for an ethics violation

The Iowa Commission on Judicial Qualifications filed an application for discipline of a judicial officer recommending this court publicly reprimand a district court judge. See Iowa Code § 602.2106 (2015). Because we conclude the judge violated the Iowa Code of Judicial Conduct, we grant the application for judicial discipline. Rather than publicly reprimand the judge, however, we publicly admonish the judge.

The issues related to the judge presiding over cases in which the attorney who represented her in divorce and post-divorce matters was counsel

There can be no serious doubt a reasonable person who knows an attorney appearing before a judge currently represents the judge in a personal matter would have a reasonable basis for questioning the judge’s impartiality...

Notably, Judge Howes recognized she could not preside over any matter in which an attorney who was currently representing her represented a party. Judge Howes and Ms. Pauly testified that no attorney–client relationship existed between them on July 25 when Judge Howes signed the order granting the temporary injunction Ms. Pauly sought on behalf of Mr. Khawaja.

Despite this testimony, the Commission concluded Judge Howes was obligated to disqualify herself from any case in which Ms. Pauly was representing a party when she signed the order even if Ms. Pauly was not currently representing her. More precisely, the Commission determined that under either approach described above, Judge Howes was obligated to disqualify herself from deciding whether to grant the temporary injunction because Judge Howes and Ms. Pauly admitted they had an attorney–client relationship in May 2013...

Judge Howes does not dispute that Ms. Pauly represented her in two highly confidential personal matters within the two years preceding the date on which she signed the ex parte order granting the temporary injunction that Ms. Pauly sought on behalf of her client. Nor does Judge Howes dispute that she and Ms. Pauly shared an attorney–client relationship when Ms. Pauly sent the letter to Mr. Kepros on her behalf just two months before she signed that order. Furthermore, Judge Howes does not deny that she did not pay for the legal services Ms. Pauly provided.

Given these facts, we agree with the Commission that it is unnecessary to decide the precise standard that governs determinations as to whether disqualification is required under rule 51:2.11(A) based on a former attorney–client relationship between a judge and an attorney appearing before the judge in this case. Instead, we conclude a reasonable person with knowledge of all the facts on July 25 might have had a reasonable basis for questioning Judge Howes’s impartiality when she signed the ex parte order even if Judge Howes did not have an ongoing attorney–client relationship with Ms. Pauly on that date.

The court rejected a "rule of necessity" defense.

As to gratis legal services

Though Judge Howes offered to pay Mr. Jasper and Ms. Pauly for their legal services, the record indicates she accepted free legal services from both attorneys when they refused her offers for payment. The Commission concluded Judge Howes violated rule 51:3.13(A) because it found her acceptance of free legal services from Mr. Jasper and Ms. Pauly would appear to a reasonable person to undermine her independence, integrity, or impartiality.


The Commission recommended Judge Howes be publicly reprimanded, rather than temporarily suspended, in light of a consideration it found to mitigate the severity of her misconduct. In particular, the Commission concluded the legal culture in which Judge Howes works likely contributed to her apparent confusion regarding the applicable standards for identifying conflicts that warrant judicial recusal and the appropriateness of judges accepting free legal services from attorneys likely to appear before them. We give respectful consideration to the Commission’s recommendation regarding an appropriate sanction, but we are not bound by it...

We agree with the Commission that additional circumstances are relevant to selecting the appropriate sanction in this case. Based on the testimony of the other judges who appeared before the Commission on her behalf, it is evident Judge Howes was not alone in her mistaken beliefs concerning her ethical obligations. But we are mindful that judges are responsible for assuring that they understand the parameters of their ethical duties. Because avoiding even the appearance of impropriety is of paramount importance to maintaining the public trust and respect for the judiciary, judges should conduct themselves especially cautiously whenever those parameters appear to be unclear or debatable. Accordingly, we conclude the apparent lack of clarity concerning the rules violated counsels only slightly in favor of a lighter sanction.

In addition, Judge Howes has reassured us that she did not intentionally or knowingly disregard her ethical obligations. Rather, it is clear that, were it not for her mistaken beliefs concerning the rules governing her conduct, she would have conducted herself differently to avoid violating them. Judge Howes acted in good faith and took care to assure she honored what she understood those requirements to be. Moreover, we are firmly convinced Judge Howes did not intend to give Ms. Pauly or her client any advantage by granting the application for a temporary injunction. Rather, the order she signed was merely a temporary order maintaining the status quo pending a further hearing, and she believed that an emergency warranting immediate action existed. We conclude these facts also counsel in favor of a lighter sanction...

...we conclude this court has the power to admonish, rather than reprimand, suspend, or remove, a judge when the Commission files an application for judicial discipline for the following reasons. First, section 602.2106(4) states that this court may “render the decree that it deems appropriate” when it finds an application for judicial discipline “should be granted in whole or in part.” Iowa Code § 602.2106(4). Second, the Iowa Constitution grants this court “supervisory and administrative control over all inferior judicial tribunals throughout the state.” Iowa Const. art. V, § 4. Thus, we conclude that when the Commission makes an application for discipline of a judicial officer to this court, upon deciding to grant the application this court has the power to admonish rather than reprimand, suspend, or remove a judicial officer.

(Mike Frisch)

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

Wednesday, April 27, 2016

North Dakota Liberal On Judicial Campaign Issues

The ethics of judicial campaigning in the modern media environment is addressed in a new opinion of the North Dakota Judicial ethics Advisory Committee which concludes

The North Dakota Judicial Ethics Committee has concluded that a judicial candidate may use electronic social media to further his or her campaign so long as that use does not violate the North Dakota Rules of Judicial Conduct. The candidates are cautioned to be aware of the limitations discussed in this opinion.

The Committee is also of the opinion that a sitting judge involved in a judicial election may wear his or her robe in connection with the campaign.

 After discussing the views of committees in other jurisdictions

The North Dakota Judicial Ethics Advisory Committee takes the more liberal position that the candidate may establish electronic social media pages along with his/her campaign committee and participate in those aspects of maintaining the social media pages that do not involve financial solicitation on behalf of the candidate. Depending on the specific context a candidate asking for the reader of a social media page to “like” or “share” the page is not necessarily a request for an endorsement or publicly stated support. For example, a “like” of a candidate’s page on Facebook allows one to subscribe to later posts and events from the page and generally to follow the progress of the election campaign. Public posts on social media pages are similar to and pose the same issues as a newspaper or television ad soliciting private support for the candidate.

 A caveat

The candidate should be cautious when inviting people to “like” or “share” a campaign page or post and take care to avoid any suggestion that in context might be perceived as a direct, personal solicitation of contributions or public endorsement. The candidate may include a link from a campaign social media page to a web page maintained by the campaign committee, but any solicitation for contributions should be incidental to the structure of the page.

On appearing in robes

One further concern to be addressed in this opinion is whether a sitting judge running for another term may pose in a judicial robe for the purpose of promoting his or her campaign. The issue is that such action would be using State resources in an inappropriate manner. In North Dakota, that question is rather easily answered. The North Dakota Supreme Court addressed the matter of a justice running for reelection to the North Dakota Supreme Court was videotaped wearing his judicial robes and sitting in a courtroom. Saefke v. VandeWalle, 279 N.W.2d 414 (ND 1979) The Court concluded that the voters of the state were “not misled or unduly influenced” by the justice in his robe pictured in a courtroom. Id. At 417. The Court further concluded that to argue that the use of the courtroom and the electricity consumed for the time it took to videotape was an illegal use of state resources was frivolous.

(Mike Frisch)


April 27, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, April 8, 2016

Public Discipline For Part-Time Magistrate

A pert-time judicial magistrate has been reprimanded by the Iowa Supreme Court.

Magistrate Sevcik, acting in his capacity as a private attorney, represented a client in district court for a hearing on a motion for temporary placement of a child. Prior to the hearing, he retrieved four criminal and six domestic abuse court files from the office of the clerk of court. He had notified the clerk of court in advance that he wanted the files and intended to ask the judge to take judicial notice of the contents of the file during the course of the hearing. Magistrate Sevcik was uncertain whether he was on duty as a magistrate when he requested the files, but was not on duty when he retrieved them from the clerk’s office. He knew two of the criminal files included deferred judgments and had been expunged. These files were marked as expunged. He understood the expunged files contained confidential documents and were only available to specific persons and agencies, including magistrates...[He] believed the district judge presiding over the hearing could take judicial notice of all the files, and he requested such judicial notice during the hearing, placing them on the courtroom bench. In addition, Magistrate Sevcik used a document from one of the expunged files to impeach a witness during the hearing.

The court affirmed some findings of misconduct

A judge who acquires nonpublic information in a judicial capacity and uses the information for purposes unrelated to the judge’s judicial duties can undermine the judge’s independence, integrity, and impartiality. Here, the conduct by Magistrate Sevcik was in the nature of abuse of power and projected a willingness to misuse judicial authority to benefit his private practice of law.

On sanction

It is unnecessary for us to decide if we should adopt a public admonition as a form of judicial discipline. Considering the nature of the conduct, this case does not present a need for us to provide instruction to magistrates on how to use their authority to access expunged records. The misuse of authority in this case was not the result of a misunderstanding, but a clear violation of the rule against using judicial authority for purposes unrelated to the work of a magistrate. We agree with the Commission [on Judicial Qualifications] that a public reprimand is the appropriate sanction. It meets the goals of imposing sanctions and is supported by the relevant circumstances in the case.

(Mike Frisch)

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

Wednesday, April 6, 2016

Village Court Justice Should Be Removed: Told Co-Judge To "Have A Stroke And Die"

A justice should be removed from office , according to the New York Commission on Judicial Conduct.

The village court justice also is an attorney.

One count involved his abuse of a student intern and others

On repeated occasions over several years, respondent abused his judicial position in order to bully, harass, threaten and intimidate his court staff, his co-judge and other village officials and employees with whom he dealt in an official capacity. Without lawful basis, he repeatedly threatened such individuals with contempt or arrest over routine personnel or administrative issues in his court. On a frequent basis, he also subjected them to demeaning treatment, insults and angry diatribes in response to perceived disrespect or shortcomings in the performance of their duties and, in one instance, exhibited a shocking display of physical aggression in the court clerk's office. Such "a pattern of injudicious behavior and inappropriate actions ... cannot be viewed as acceptable conduct by one holding judicial office" (Matter of VonderHeide, 72 NY2d
65 8, 660 [ 1988]) and warrants his removal from judicial office.

Epitomizing respondent's misconduct is his response to the hiring of a college student to work in the court clerk's office in the summer of 2012. In an incident that escalated into a melee, respondent, who was displeased because the student, Maxary Joseph, had been hired by the mayor without respondent's input or approval, acted in a manner that failed to show "even a modicum of sensitivity or self-control so vital to the demands of his position" (Matter of Kuehnel, 49 NY2d 465, 469 [1980]) as he attempted to have the student removed from the premises, threatened him with arrest and contempt, and made similar threats against others who attempted to thwart respondent's efforts to effectuate the arrest.

 Initially, after ordering Mr. Joseph to leave the office and threatening him with arrest when he returned at the mayor's direction, respondent called the police and told them he had held an individual in contempt (a statement respondent later admitted was untrue) and that he wanted him arrested for trespassing; he also told the police "the mayor may be next." Then, with a commitment order in hand, he went to the police office in the municipal building, announced that he was sentencing an individual to jail for 15 days, and said he would hold the police in contempt unless they assisted him. He called the sheriffs office and said he wanted the matter investigated, summoned an offduty court officer to the court for assistance, and directed a court clerk to set up the recording equipment in the courtroom. When his co-judge attempted to intervene, respondent threatened him with contempt and told him to "have a stroke and die."   Respondent also ignored the pleas of the court clerks, who were shocked and frightened by respondent's evident rage as he screamed at Mr. Joseph and, while standing next to the student's desk, ordered him into the courtroom and began to advise him of his rights. In an alarming display of injudicious temperament, respondent grabbed Mr. Joseph's arm and attempted to pull him out of his chair, yanking him with such force that the chair began to slide toward respondent. When police, who had rushed to the clerk's office after hearing screaming and yelling, tried to calm the situation and suggested that respondent discuss his concerns about hiring with the mayor, he responded by referring to the mayor in profane, vulgar terms and added that he was contemplating holding her in contempt.

The commission noted that the behavior at issue was not an isolated instance.

The proposed removal now goes to the state Court of Appeals. (Mike Frisch) 

April 6, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, April 5, 2016

I'll Be Seeing You

The Tennessee Court of Judicial Conduct entered an agreed order of dismissal of allegations against a judicial commissioner.

The agreed statement acknowledges that the commissioner had certified that a person had appeared before him for bond when no court record reflected the appearance and the defendant had denied it.

The commissioner agreed to take steps assure accuracy in the future. The commissioner had implemented the procedures after the incident at issue. (Mike Frisch)

April 5, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 29, 2016

Sign Language

An opinion from the South Carolina Advisory Committee on Standards of Judicial Conduct deals with the propriety of a judge's involvement in a spouse's political campaign

A full-time Municipal Court Judge wishes to be involved in a spouse’s political campaign for a non-partisan position at a local level. No monetary campaign contributions will be sought. The judge wants to attend meet-and-greet events and post campaign signs. The judge would not personally seek permission from the landowners to place signs, but once someone from the campaign has obtained permission, the judge would participate in the posting of the signs. Some of the people or businesses who consent to allowing the signs may have appeared (or could appear in the future) before the judge.

The judge may attend functions and but not post signs

Here, the judge will not be personally seeking permission from the landowners or businesses to post the signs, which reduces the inference of public endorsement. However, the fact that the judge will be posting the signs for the spouse’s campaign could still create the inference of a public endorsement to onlookers. In addition, the judge’s actions could also create the appearance that the judge is lending the prestige of judicial office to advance the spouse’s private interests as a political candidate. Thus, we conclude that the judge should not participate in the posting of a spouse’s campaign signs.

(Mike Frisch)

March 29, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, March 28, 2016

Ready For My Close Up, Mr. DeMille

A new opinion from the Florida Judicial Ethics Advisory Committee


May a judge appear in a documentary concerning a case that the judge prosecuted as an assistant state attorney and that has reached final disposition where the judge will not be identified as a current, sitting judge?

ANSWER: Yes, as long as the matter on which the inquiring judge has been asked to speak has reached final disposition in both the state and federal appellate process.


The inquiring judge has been contacted by a television producer about participating and possibly appearing in a documentary concerning a murder case which the judge prosecuted as an assistant state attorney in 2005. The Defendant was convicted and sentenced to thirty-five years in prison. The judge advises that the most recent appellate activity concluded in 2014, and that there are currently no pending appeals. The judge also advises that the judge will be identified in the documentary only as the prosecutor in the case, and will not be referred to as a current, sitting judge. Additionally, the judge will not appear in the documentary wearing a judicial robe or in judicial chambers, but rather, in both a casual setting and clothing.

OK but

We caution, however, that Florida Code of Judicial Conduct, Canon 2(B) states that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” For this reason, the inquiring judge would not be permitted to appear in the documentary, in order to discuss the judge’s prior role in the case as the prosecutor, were the judge to be identified as a current, sitting judge, because that appearance would lend the prestige of the judicial office to the private interests of the documentary producers, and their particular point of view, if any, presented in the documentary. See Fla. JEAC Op. 07-07. As such, the fact that the inquiring judge will not be identified as a current, sitting judge, nor appear in the documentary wearing a judicial robe or in the setting of judicial chambers, is also relevant to this Committee’s opinion that the judge’s appearance would not be prohibited under the Code.

(Mike Frisch)

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

Thursday, March 24, 2016

From Bar To Barred

A Village Court Justice has resigned from the bench and barred from future office based on a stipulation entered into with the New York State Commission on Judicial Conduct.

Judge House was apprised by the Commission in March 2016 that it was investigating a complaint that, in or about August 2015, after consuming alcoholic drinks at a local bar, he engaged in public conduct both inside and outside the bar with another patron that was inconsistent with his ethical obligations to act at all times in a manner that promotes public confidence in the integrity of the judiciary and to conduct his extrajudicial activities so as not to detract from the dignity of his judicial office.

His February 23 resignation letter ends "God bless all of you." (Mike Frisch)

March 24, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, March 16, 2016

Peace Bond Misconduct Leads To Removal

A judicial officer has been removed from office by the Louisiana Supreme Court.

There were complaints in two matters that led to proceedings before the Judiciary Commission

The Commission found that respondent repeatedly abused and exceeded his judicial authority, used his office to advance his own personal interests, demonstrated bias and prejudice, exhibited incompetence and gross negligence in the oversight of his office, and exhibited inappropriate judicial temperament and demeanor. In the LeBlanc/Vignes matter, he imposed unlawful jail sentences on two individuals for failing to post peace custody case in another parish, repeatedly extended the terms of peace bonds beyond the maximum term allowed by law and without conducting hearings, and failed to timely refund peace bond monies after peace bonds expired without a forfeiture, including losing track of $2,000 of peace bond money for over two years in his attorney trust account. In the Henderson matter, respondent demonstrated improper judicial temperament and demeanor, failed to properly supervise his staff, and notarized affidavits in support of peace bond applications when the affiants did not appear before him, swear out an oath, or sign the affidavit in his presence. Finally, in both matters, respondent demonstrated a practice of charging fees for peace bonds that were in excess of those authorized by law and of double-charging fees, i.e., charging both the peace bond plaintiff and defendant the same fees for the same services, in order to enrich himself. The Commission further found that respondent is an experienced attorney who knew or should have known better. For this misconduct, the Commission recommended that respondent be removed from office and be assessed with costs. The Commission also recommended that the right to bring lawyer discipline proceedings against respondent be reserved.

Removal is the appropriate sanction

we adopt the Commission’s rationale, and conclude the most severe sanction of removal from office is warranted in this case to protect the integrity of the judiciary and the public from future harm. Respondent’s misconduct as set forth above is so prejudicial to the administration of justice in his justice of the peace court that he cannot be allowed to remain on the bench. In our view, any discipline less than removal would undermine the judicial discipline process and diminish the integrity of the judiciary.

(Mike Frisch)

March 16, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 15, 2016

Called Out On Strikes

The West Virginia Supreme Court of Appeals granted a petition for mandamus against a person running for a magistrate position.

The Court concludes that Troy Sexton has been convicted of a misdemeanor involving moral turpitude and therefore, pursuant to West Virginia Code § 50-1-4, he is ineligible to serve as a Magistrate for Putnam County. In light of Mr. Sexton’s ineligibility to serve as a Magistrate for Putnam County, his name shall be removed from the May 2016 election ballot.

Recognizing the significance of election issues to the State of West Virginia and its citizens and given the parties’ request for accelerated consideration and resolution of this matter as it relates to the preparation of ballots in the upcoming primary election, the Court issues its decision through this order with an opinion to follow in due course. reported on the petition

The petition says state law requires that magistrates not be convicted of "any felony or any misdemeanor involving moral turpitude."
The [Judicial Investigation Commission]  filing says Sexton pleaded guilty to making harassing phone calls to a woman in 2010, and falsely reporting an emergency incident and driving under the influence in 2014.
He pleaded no contest to misdemeanor domestic battery charges in 2009.
Sexton says regardless of his past misdemeanors, he's still qualified to run for magistrate.

I cannot confirm but he may also be a fan of the Los Angeles Dodgers as reported by the New York Daily News

A man with a history of abusive behavior was arrested in Cincinnati Tuesday night for violating a lifetime ban and showing up at Great American Ball Park, where the Reds faced the Los Angeles Dodgers.

Troy Sexton, who's come to be known to Dodger followers as "Troy from West Virginia," was charged with criminal trespass and obstructing official business. He also faces a felony burglary count, though it was not clear what prompted that charge.

He is being held in the Hamilton County Jail on a $40,000 bond, the Cincinnati Enquirer reported.

Sexton, 40, of Hurricane, W. Va., was banned from the stadium on the Ohio River in 2008, after his participation in a brawl raised such a ruckus the game was delayed.

He pleaded guilty to disorderly conduct in that incident. A charge of resisting arrest was dropped.

(Mike Frisch)

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

Wednesday, March 9, 2016

Voucher Censured

The New Mexico Supreme Court recently issued a public censure to a district court judge who

admits that on or about June 19, 8 2014, [he] initiated ex parte communications with Grant County Magistrate  Judge Maurine Laney – concerning a case that was pending before Judge Laney – in an attempt to personally vouch for the character of the defendant and obtain special treatment for the defendant...

 The judge agreed to submit to a formal mentorship and unsupervised probation.

In an unrelated matter, the court publicly censured another judge for improper ex parte communication in a civil matter. (Mike Frisch)

March 9, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

From Outstanding To Out Standing

A district court judge who admitted misconduct was suspended from practice for 90 days by the Minnesota Supreme Court.

[W]hile serving as a district court judge, [he engaged in misconduct by] failing to maintain residency in the judicial district in which he served; making a knowingly false statement in an affidavit of candidacy; and making misleading statements about his removal as a district court judge in a blog.

Minnesota Lawyer has a story on the sanction.

On a better day he received an award as an outstanding judge. (Mike Frisch)

March 9, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

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. 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. 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)