Sunday, October 4, 2015

Nevada Supremes Instruct On Dealing With Allegations Of Attorney Misconduct In Civil Litigation

The Nevada Supreme Court has provided guidance to lower courts with respect to the proper trial and appellate court approach to attorney misconduct

After the jury rendered a verdict in favor of the [defendant] manufacturer, the plaintiff filed a post-trial motion seeking a new trial based upon alleged misconduct committed by the manufacturer's attorney. The district court denied the motion, but failed to make the detailed findings required by the Nevada Supreme Court.

The Nevada Supreme Court recently issued two opinions clarifying how claims of attorney misconduct must be handled both by the district court and subsequently on appeal. In this opinion, we take the opportunity to summarize those recent developments and to provide guidance to district courts tasked with resolving claims of misconduct. Because the district court in this case failed to make detailed findings regarding the alleged misconduct that might have enabled us to determine whether those cases would have affected its decision, we must remand the case to the district court to reconsider its decision in light of those cases and to make the necessary findings. To assist the district court, we identify some factors that must be considered on remand.


When a party claims misconduct by opposing counsel, the legal standard under which that misconduct is reviewed depends on whether a timely trial objection was made. See Lioce, 124 Nev. at 17-19, 174 P.3d at 980-82. When a timely objection was not made at trial, any review of that misconduct, either post-trial by the trial court or on appeal, is considerably more circumscribed than if an objection was made. When resolving a motion for a new trial based on unobjected-to attorney misconduct, "the district court shall first conclude that the failure to object is critical and the district court must treat the attorney misconduct issue as having been waived, unless plain error exists." Id. at 19, 174 P.3d at 982. To decide whether there is plain error, the district court must then determine "whether the complaining party met its burden of demonstrating that its case is a rare circumstance in which the attorney misconduct amounted to irreparable and fundamental error." Id. And "[lin the context of unobjected-to attorney misconduct, irreparable and fundamental error is error that results in a substantial impairment of justice or denial of fundamental rights such that, but for the misconduct, the verdict would have been different." Id. Thus, in this case, because no objection was lodged at trial, a new trial would only be warranted if Pentair committed misconduct and the misconduct amounted to "plain error."

Trial courts must

On remand, the district court must clarify, at a minimum, whether it found that no misconduct occurred or rather whether it concluded that misconduct did occur but was harmless under the standards of Lioce in view of: (1) the nature of the claims and defenses asserted by the parties; (2) the relative strength of the evidence presented by the parties; (3) the facts and evidence that were either disputed or not substantively disputed during the trial; (4) the type, severity, and scope of any attorney misconduct; (5) whether any misconduct was isolated and incidental on the one hand or repeated and persistent on the other; (6) the context in which any misconduct occurred; (7) the relationship of any misconduct to the parties' evidence and arguments; and (8) any other relevant considerations...when serious and repeated attorney misconduct has demonstrably occurred, the district court's deference to the jury is more limited than if such misconduct had not occurred, and the trial court must carefully consider whether the misconduct led the jury astray and caused it to base its verdict upon something other than the evidence and the applicable law.

The case involves a products liability action against a manufacturer of swimming pool filters. An explosion had cost the plaintiff an eye. (Mike Frisch)

October 4, 2015 in Judicial Ethics and the Courts, Professional Responsibility, The Practice | Permalink | Comments (0)

Friday, October 2, 2015

Judge Who Required Indigents To Perform Public Service To Get Appointed Counsel Reprimanded

A public reprimand was imposed by the Tennessee Board of Judicial Conduct for misconduct described in The Tennesean as practices he will no longer engage in.

As part of the order, Holley agreed to the following items:

• To stop requiring defendants to perform public service work in order to be granted the right to have appointed counsel;

• He shall not as a requirement of probation or to obtain appointed counsel, allow defendants to make donations of items to certain charities specified by him;

• He shall not sentence defendants to jail time for contempt for failing to complete public service work previously ordered for the appointment of counsel;

• He shall not deny appointed counsel to individuals who have made bond, if they request appointed counsel, without regard for their personal financial means; or revoke the bonds of individuals who had made a bond solely because they requested appointed counsel;

• He shall not order cash only bonds in violation of established law;

• He shall not require the waiver of the constitutional right to counsel and a jury trial in order to grant a defendant’s request for a continuance;

• And he shall not refuse the request of defendants for appointed counsel without conducting an indigency hearing.

The judge has agreed to cease and desist these practices.

More on the controversy from WKRN Nashville. (Mike Frisch)

October 2, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

The Healing Effect Of Time

The Ohio Supreme Court has determined that a judge need not recuse himself in a proceeding involving a former client

Herman A. Carson, counsel for defendant Roscoe Campbell, has filed an affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify Judge Brett M. Spencer from the above-captioned case, now pending for resentencing.

Carson claims that in 2005, Judge Spencer recused himself from a case involving defendant Campbell due to a “professional conflict.” Carson states that his client, defendant Campbell, believes that if a conflict existed in 2005, then the same conflict should mandate Judge Spencer’s disqualification from the underlying matter. Accordingly, Carson avers that he filed the affidavit of disqualification at the direction of his incarcerated client.

Judge Spencer has responded in writing to the affidavit, denying any bias or prejudice in this case. Judge Spencer explains that years prior to taking the bench in February 2005, he represented Campbell in a traffic matter. In August 2005, the judge recused himself from a case involving Campbell to avoid any appearance of sympathy for a former client. However, by 2012, when the underlying case commenced, Judge Spencer determined that given the amount of time that had passed since he had represented Campbell, his recusal was no longer necessary in cases involving Campbell. The judge is confident that when he was assigned this case in 2012, he addressed this potential conflict with Campbell and his then defense counsel.

The court concluded that the issue had been waived and was meritless

[The former client] made no attempt to show that Judge Spencer harbors bias against Campbell stemming from the judge’s representation of Campbell in an unrelated traffic matter over a decade ago. Additionally, “a judge’s voluntary removal from an earlier case does not, by itself, support disqualification from an unrelated case involving that same party or attorney.” In re Disqualification of Celebrezze, 135 Ohio St.3d 1218, 2012-Ohio-6304, 985 N.E.2d 499,

Judge Spencer has sufficiently explained the circumstances that caused him to recuse himself from Campbell’s 2005 case, and he reasonably concluded that recusal is no longer necessary.

(Mike Frisch)

October 2, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, October 1, 2015

Removed Attorney Lacks Standing To Seek Judge's Disqualification

Although it found the trial judge's conduct troubling, the Ohio Supreme Court held that an attorney removed from a case lacked standing to seek disqualification of the judge.

Here, Judge Gaul removed Wolpert as counsel in the underlying case and assigned the public defender’s office to represent defendant. Because Wolpert is no longer counsel in the case, he is not one of the persons who may file an affidavit of disqualification.

The circumstances

Wolpert filed the affidavit after Judge Gaul issued entries removing Wolpert as defendant’s attorney in the underlying case, appointing the public defender’s office to represent defendant, and barring Wolpert from appearing in his courtroom until Wolpert “clearly demonstrates to the Court that he is receiving effective Mental Health Services.”

Judge Gaul has responded in writing to the affidavit, explaining that due to a series of recent events, he has concluded that Wolpert is currently unfit to practice law and unable to provide effective assistance to his clients. Therefore, the judge barred Wolpert from appearing in his courtroom.

Bad move because

a trial court’s blanket ban on an attorney’s practicing before the court generally violates this court’s exclusive jurisdiction over attorney-disciplinary matters.

The judge had had a brush with discipline himself, according to the web page of the Ohio Supreme Court.

In a 4-2 per curiam decision, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that Gaul improperly attempted to initiate an “Amber Alert” for two witnesses who had failed to appear for the defendant’s scheduled trial, and made improper public statements in court and during an in-chambers meeting with the news media in which he asserted his belief that the defendant had intimidated or interfered with the missing witnesses when there was no factual evidence in the record to support those assertions. The Court agreed with the disciplinary board’s conclusions that Gaul’s actions constituted conduct prejudicial to the administration of justice, manifested bias against the defendant, and called into question his own impartiality and the fairness and impartiality of the judicial process.

The court stayed a six-month suspension.

In a separate matter, the court found that disqualification of judge was not required despite the fact that the judge had testified against the criminal defendant in a fee dispute. 

[Defendant] Patterson asserts that Judge Huffman testified against him in a fee dispute arbitration hearing and therefore an appearance of impropriety exists if she decides his pending posttrial motion. Additionally, Patterson avers that Judge Huffman demonstrated bias and prejudice against him during the underlying case. Judge Huffman has responded in writing to the affidavit, denying any bias against Patterson and vowing to decide the pending motion based on the law. For the following reasons, no basis has been established to order the disqualification of Judge Huffman...

Judge Huffman acknowledges that she testified at the fee-dispute hearing, which was held at the office of the local bar association. Judge Huffman further explains that she was subpoenaed to testify, she did not appear on behalf of or against either party, she had no interest in the outcome, her entire testimony lasted about ten minutes, and her testimony was limited to issues surrounding the number of court hearings in the underlying case and the amount of time Patterson’s former counsel had spent in court. The judge expressly denies that she testified about the quality of representation provided by Patterson’s former counsel. On this record, no reasonable and objective observer would question Judge Huffman’s impartiality merely because she was subpoenaed to testify about limited issues in a fee-dispute hearing conducted by a local bar association.

(Mike Frisch)

October 1, 2015 in Judicial Ethics and the Courts | Permalink | Comments (2)

Tuesday, September 22, 2015

Clerk's Cousin As Witness Does Not Disqualify Magistrate

From the South Carolina Advisory Committee on Standards of Judicial Conduct

OPINION NO. 3-2015

RE:      Propriety of a full-time magistrate presiding over a case in which the Sheriff’s Deputy acting as the prosecuting officer is also the cousin of magistrate’s criminal clerk.


The criminal clerk of a full-time magistrate is the cousin of a Sheriff’s Deputy.  The Deputy sometimes appears as the prosecuting officer in Magistrate’s Court.  On several occasions, the inquiring magistrate has met the Deputy, when the Deputy came by the magistrate’s office in his official capacity.   The magistrate inquires as to whether disqualification or any disclosures are required when the Deputy appears as prosecuting officer before the magistrate.


A full-time magistrate is not disqualified from presiding over cases in which the prosecuting officer is the cousin of the magistrate’s clerk. 


Canon 3E(1) states that a "judge shall disqualify himself or herself in a proceeding where his/her impartiality might reasonably be questioned."   Canon 3E includes certain instances where a judge’s impartiality, including (but not limited to) where the judge has a personal bias against a party or attorney; where the judge served as a lawyer in the controversy; where the judge, judge’s spouse, or other family member in the judge’s household has an economic interest that could be affected by the proceeding; and/or where the judge’s spouse or family member within three degrees of relationship appears as a party or attorney to a proceeding.1  In Op. No. 10-2004, this Committee considered whether a circuit court judge must recuse himself or herself if the judge’s first cousin appeared as either an attorney or a material witness in a case.  We determined that since a cousin was not within the "third degree of relationship," disqualification was not required (although we did advise the judge to disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the disqualification, and provide the parties the opportunity to object).

In this situation, the Deputy is not related to the magistrate at all, and is only a cousin to the magistrate’s clerk.  Furthermore, from the facts presented, the magistrate does not appear to have a personal friendship to the Deputy that would create the appearance that the magistrate’s impartiality had been affected.  (In contrast, see. Op. No. 17-2002, in which this Committee determined that a municipal judge should disqualify himself in a proceeding in which his girlfriend, a police officer, appeared).  Thus, the magistrate is not required to disqualify himself or herself or make any disclosures when the Deputy appears before the magistrate as the prosecuting officer.

 (Mike Frisch)

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

Wednesday, September 16, 2015

Judge Suspended With Pay

A Minnesota judge has been suspended with pay by the state Supreme Court.

The Star Tribune reported on allegations against the judge

A state board’s investigation has found that an Anoka County judge failed to live in his judicial district, a violation of Minnesota’s Constitution.

Last week, the Board on Judicial Standards filed a formal complaint against District Judge Alan Pendleton for living in his wife’s house in Minnetonka, which is in Hennepin County, for eight months starting in December 2013. The board has asked the state Supreme Court to appoint a three-person panel to conduct a public hearing on the matter.

The panel could dismiss the case or recommend that the Supreme Court issue an order for censure, suspension or other sanction.

The case is not without precedent. In 2011, Hennepin County District Judge Patricia Kerr Karasov was censured and suspended without pay for six months for a similar offense. She is no longer an active judge.

In his six-page response to the board, Pendleton strongly denied the allegations. He said he did stay temporarily at his wife’s house during the time stated by the board, but it was so that he could find a new residence in Anoka County and handle personal and school issues involving his son.

Pendleton also attacked the board’s investigation, describing it as perfunctory. He said the board failed to disclose that it was the complainant in his case, didn’t give him proper notice when he was ordered to testify and asked improper questions about his sex life. It is highly unusual for the board to be a complainant in such a case.

Thomas Vasaly, the board’s executive secretary, didn’t return repeated calls for comment Friday. Doug Kelley, Pendleton’s attorney, said his client “always intended to return to and reside in his judicial district.”

He pointed out that when the Supreme Court issued its discipline against Karasov, the justices said an inquiry into residency must be “highly fact-specific” and consider the judge’s physical presence and intent to reside with the judicial district.

“The judge took a number of concrete steps to look for an apartment and did it before he ever knew he was being investigated by the board,” Kelley said.

Ventura appointment

Pendleton, 59, was appointed to the Tenth Judicial District by former Gov. Jesse Ventura in 1999.

He received an outstanding judge award from the state’s District Judges Association in 2012 for his commitment to improving the judicial system and promotion of judicial efficiency.

“I’ve been blessed. Oh, not by this honor, which I was not expecting at all and means a great deal to me,” he said in a Star Tribune article when he received the award.

“I’m tremendously honored to be part of this profession, to be a small part of the legal system. The recognition embarrasses me a little. It’s the system that I love.”

The panel for Pendleton’s public hearing will consist of a judge, an attorney and a civilian not involved in the legal field. The board filed its complaint against him Oct. 31.

The board received information concerning Pendleton in July and met with him a month later.

From July 2012 until November 2013, he owned a condominium in Anoka, it found.

He then sold it and moved into his wife’s house. In August 2014, he started to rent an apartment in Anoka County.

When Pendleton filed his affidavit to run for re-election for his judicial office this year, he wrote down the address of the condominium he no longer owned.

Pendleton’s response to the board said he received assurances from them that his living arrangements complied with ethical requirements respecting judiciary residency.

He added that the board’s investigation was limited to looking up real estate tax information about his wife’s home and trying to view pictures of it on Google Maps.

Family issues

He sold his condominium to save money and move closer to his children’s high school and moved his personal possessions to a storage unit and temporarily stayed with his wife while he searched for a new apartment, he said.

He argued that that doesn’t constitute moving from the district as defined by law and interpreted by the Supreme Court in the Karasov case.

In January 2014, one of Pendleton’s children had some personal problems, which caused the judge and his ex-wife to discuss moving the child to another school. Because it was a major decision, Pendleton stayed with his current wife in Minnetonka as the family considered options, he said.

Once the issue was resolved, he promptly located an apartment near his children’s high school, he said.

His apartment unit was under renovation, which delayed his occupancy for two months.

Pendleton added that he mistakenly listed his condominium address on his candidacy affidavit and that it’s optional for judges to list it.

The suspension is effective until the court decides appropriate discipline. (Mike Frisch)

September 16, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, September 10, 2015

Dress Code For Florida Judges: Go With Basic Black

Amendments adopted by the Florida Supreme Court provide that

During any judicial proceeding, robes worn by a judge must be solid black with no embellishment.

The reasoning

The Court, on its own motion, adopts new Florida Rule of Judicial Administration 2.340 (Judicial Attire) to govern judges’ attire during judicial proceedings.  The demeanor of judges in a public courtroom, including the attire they wear there, is a crucial indicator of the seriousness of the judicial office and of the proceedings. In this regard, this Court has a major responsibility to provide leadership and direction to advance the judicial branch’s ongoing effort to enhance public trust and confidence in the third branch of government. As part of this responsibility, we adopt new rule 2.340 to provide guidance to Florida’s judges and emphasize that the attire worn by judges during judicial proceedings must promote public trust and confidence in the proceedings and the judicial system as a whole...

Presiding judges wearing different colored robes or robes with varying embellishments could result in uncertainty for those coming before our courts and serve to counter the efforts the branch has employed to gain the public’s trust. For example, one could question whether there is a “status” attributed to the varying colors or embellishments worn by different judges, e.g., whether the color or embellishment denotes a rank of judge based on tenure, ability, or some other factor—is this judge more or less qualified or maybe the chief judge? Depending on the color or pattern of the robe or the type of embellishment worn, some may wonder whether the presiding judge is a “real judge” or whether the judge will take the proceedings seriously. Robe color also could be seen as a reflection of a judge’s mood or attitude that day. Should a defendant facing the death penalty feel trepidation when the presiding judge appears in a red robe or feel more at ease when the robe is green? The possibility that the unique attire of the judge assigned to one’s case could raise these concerns and thereby diminish public trust and confidence in the proceedings is not acceptable.

The public should not have to guess as to the meaning of different colored, patterned, or embellished robes. Promoting uniformity in judicial attire, by requiring all judges to wear unembellished, solid black robes, will no doubt avoid these concerns and promote public trust and confidence. The people of Florida have a right to expect equal justice every day, in every court in this state, and should not have to question whether equal justice is being dispensed based on the color of a judge’s robe.

(Mike Frisch)

September 10, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sign Of The Times

The Florida Supreme Court has ordered a circuit court  judge to appear before it to receive a public reprimand

The first incident occurred on or about June 2, 2014. Upon seeing an opponent’s campaign sign in a convenience store, Judge Schwartz asked to speak with the store’s owner. She was told that the owner, Mr. Firas Hussain, was not there but that he might be back later that day or the next day.

That night, Judge Schwartz returned to the convenience store to speak with Mr. Hussain and to request that he display her campaign sign. When Mr. Hussain refused to display Judge Schwartz’s campaign sign, she lost her temper. Before leaving the store, Judge Schwartz used profanity and threatened to sue Mr. Hussain.

In the second incident, while presiding over a case, Judge Schwartz wrote notes on pages of scrap paper and on original documents contained in the case’s court file. One of the parties reviewed the court file and photocopied the judge’s notes. Later, that party requested a certified copy of the pages that contained the notes. Upon receiving the party’s request, Judge Schwartz instructed her bailiff to remove those pages from the court file. After reviewing the uncertified copies of Judge Schwartz’s notes, the party filed a motion to disqualify her from the case. Judge Schwartz denied the motion. Judge Schwartz testified that she instructed her bailiff to remove the pages containing her notes from the court file and place them in an envelope. The missing pages were never found.

The judge stipulated to the violations. She must also pay a fine and write a letter of apology.

The Miami Herald reported that the judge told the store owner to "Go f--- yourself." (Mike Frisch)

September 10, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, September 8, 2015

Outside The Window

Two judges have been admonished for similar conduct by the New York State Commission on Judicial Conduct.

The commission's press releases are linked here and here.

From 2006 to 2013 Judge Fleming directly and/or indirectly through his law firm made 71 ticket purchases totaling $11,960.55, and two ticket purchases through his spouse totaling $400, to politically sponsored dinners or functions, outside the judge’s “window period”1 of permissible political activity. The judge’s law firm also made 27 prohibited contributions totaling $12,533.48 to political organizations and candidates.

The Commission noted that the Rules, Advisory Opinions and its own decisions over the years have long made it clear that judges may not directly or indirectly make political contributions, with certain narrow exceptions applicable to a limited time when they are running for office.

One Commission member dissented. Richard D. Emery argued that the rule prohibiting political contributions by judges was inconsistent with the First Amendment.

The Commission addressed Mr. Emery’s dissent, noting that the Court of Appeals has upheld the constitutionality of the contributions rule.

Judge Fleming has served as a Justice of the Hamburg Village Court since 2006. His current term expires on April 2, 2018.


From 2003 through January 2014, Judge Sakowski directly made 69 prohibited political contributions totaling $20,633, and another 36 totaling about $2,851 through his law firm. Twenty-seven of the contributions by his law firm were for tickets to politically sponsored events outside the judge’s “window period”1 of permissible political activity.

The Commission noted that the Rules, Advisory Opinions and its own decisions over the years have long made it clear that judges may not directly or indirectly make political contributions, with certain narrow exceptions applicable to a limited time when they are running for office.

Three Commission members dissented. Richard D. Emery and Joseph W. Belluck argued that the rule prohibiting political contributions was inconsistent with the First Amendment, and

Richard A. Stoloff argued that the rule should not apply when the contribution is to a national political campaign.

The Commission addressed both dissents, noting that the Court of Appeals has upheld the constitutionality of the contributions rule, and that there is no exception in the rules for national campaigns.

Judge Sakowski has served as a Justice of the Elma Town Court since 1980. His current term expires on December 31, 2015.

The "window" period

The Rules Governing Judicial Conduct permit a publicly announced candidate for elected judicial office to purchase two tickets to a politically sponsored dinner or other political function only during his or her “window period,” defined as a period of nine months before the selection of candidates to six months after the primary, convention, caucus or general election.

The full opinions are linked here and here. (Mike Frisch)

September 8, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

The Book Thief

An elected Vermont judge was reprimanded as a result of his lengthy course of conduct involving small thefts from three stores.

No greater sanction was imposed in light of his resignation from office.

Vermont Today reported on the judicial complaint

A former Washington County assistant judge who is accused of stealing items from three Montpelier businesses over several years says he has no explanation or excuse.

The state’s Judicial Conduct Board is investigating a formal complaint against Karl Barney Bloom, 71, and could sanction him. Bloom served as an assistant judge for 15 years before retiring in July.

Bloom acknowledged in a phone interview Monday that he knew what he was doing was wrong. He said there was no explanation he could easily give. “We’re all like the moon,” he said. “We have a side that no one sees.”

The complaint says Bloom took newspapers and soup from Uncommon Market without paying for them. After the owners of the market confronted Bloom, the complaint says, he paid the market $500 as compensation and agreed to donate $500 to Kellogg-Hubbard Library in Montpelier.

He also took books and magazines from Bear Pond Books without paying for them, according to the complaint. On Dec. 14, 2012, the complaint says, the bookstore owners confronted Bloom when he tried to walk out with a book in his coat pocket for which he hadn’t paid. A few days later, Bloom was given a no-trespass order saying he had to stay out of Bear Pond Books, according to the complaint.

The third business was Capitol Grounds, where the complaint says Bloom, “on multiple occasions,” would take coffee without paying for it over the past three years.

He is barred from future judicial office. (Mike Frisch)

September 8, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Final Discipline Awaits Convicted Former Judge

The Ohio Supreme Court has suspended a former judge convicted of a felony offense.

Newsnet 5 Cleveland had this report

According to an affidavit released by Shaker Heights Municipal Court, Cuyahoga County Common Pleas Judge Lance Mason punched his wife repeatedly, choked her and bit her at around noon Saturday on Van Aken Boulevard near Glencairn Road in Shaker Heights.

Authorities said Mason, 46, of Cleveland, and his wife began fighting in their car and the fight turned physical as they drove on Glencairn Road.

Eventually, the altercation spilled outside of the vehicle. During a 9-1-1 call, Mason's wife told dispatchers that someone had stopped to help her after she made it out of the car. She added that Mason had driven away with the kids and that the witnesses were driving her to a hospital.

According to the affidavit, Mason's wife suffered a broken orbital bone, facial swelling and bite marks to her face.

The court will determine the appropriate final discipline at the conclusion of the disciplinary process. (Mike Frisch)

September 8, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (2)

Friday, September 4, 2015

Removed And Disbarred

The Mississippi Supreme Court removed a Chancery Court judge from office as a result of his conviction for obstruction of justice.

From the statement of agreed facts

The Formal Complaint in this matter contains various allegations regarding Respondent’s mismanagement of [a] conservatorship. Due to various irregularities occurring in Respondent’s handling of the conservatorship, the matter was investigated by the Federal Bureau of Investigation as well as the Commission. As a result of that investigation, a grand jury was convened and witnesses called to testify regarding the administration of the conservatorship. In association therewith, Respondent has entered a guilty plea related to a charge of attempting to corruptly influence a witness subpoenaed to appear before a Federal Grand Jury proceeding and attempting to impede the provision of documents by the witness to the Federal Grand Jury with the intent to influence the outcome of the proceeding in violation of Section 1512(c)(2), Title 18, United States Code. The Federal Court Judge has accepted the plea and will impose sentence on Respondent in January, 2015, thereby rendering a hearing on the merits in the Commission case unnecessary and superfluous. Based upon said plea, Respondent has resigned from office and agrees that the appropriate sanction in this cause should be removal from office.

He was also taxed with costs.

By separate order, he was permanently disbarred.

Hattiesburg American has the details. (Mike Frisch)

September 4, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, September 1, 2015

Former Magistrate Faces Attorney Discipline: Litigant Stabbed And Had Sex With Him

The excellent web page of the Ohio Supreme Court has a summary of a disciplinary matter scheduled tomorrow for oral argument

A former judge and magistrate could be suspended from practice for violating professional rules of conduct, but the length of the suspension is in contention.

Orlando Williams served as a judge and then a magistrate in the Akron Municipal Court between March 2009 and June 2012. Williams is accused of having a sexual relationship with a defendant who appeared before him in an eviction case. Additional misconduct charges brought by the Office of Disciplinary Counsel allege Williams falsified documents to buy a car and misappropriated settlement money from a wrongful death lawsuit.

While a three-member panel of the Board of Professional Conduct recommended Williams be suspended for two years, with one year stayed on condition he doesn’t commit further misconduct and maintains compliance with a treatment contract, the full board amended the sanction and is recommending the Ohio Supreme Court indefinitely suspend Williams from practicing law in Ohio. The board concluded that because of Williams’ egregious violations, a more severe sanction was appropriate.

Charges of Misconduct
While serving as a magistrate, Williams began a sexual relationship with a woman who appeared before him as a defendant in an eviction case. He didn’t recuse himself from the case until confronted by the court’s four judges after the woman was arrested for drunk driving and referred to Williams as her boyfriend. The Disciplinary Counsel charged his actions were in violation of the Ohio Code of Judicial Conduct rules 1.2 and 2.11(A) for failing to disqualify himself from the woman’s case and carrying on a relationship with her.

After he resigned his position with the court in 2012, Williams worked for a private law firm. Five days after he was fired, he and the woman went to a car dealership in Akron. Williams filled out a credit application and listed an old home address and falsely claimed to work at the law firm. With his knowledge, the woman made a fictitious pay stub that was provided to the dealership. Williams is accused of violating Ohio Rule of Professional Conduct 8.4(c) for the fraud.

In a separate incident, Williams is accused of violating that same rule of conduct, in addition to rules 8.4(d) and 1.3, for failing to make the required distributions for the minor children in a 2009 wrongful death lawsuit settlement. After the money sat in his Interest on Lawyers’ Trust Account for three years, Williams withdrew the money, repaid it, and withdrew it again. He never purchased the court-ordered annuity for the children and he failed to report his inaction to the court on several occasions.

The Board of Professional Conduct adopted the findings of fact and conclusions of law of the panel, but amended the sanction to an indefinite suspension because of Williams’ egregious actions, including his failure to make full restitution.

Answer from the Accused 
In an answer to the disciplinary recommendations, Williams’ attorney maintains his client has agreed to certain facts in the case, including taking responsibility for his misconduct. He doesn’t agree to the omission of facts about his mental state at the time of the misconduct and the indefinite suspension recommendation that’s before the Supreme Court.

The written objection includes testimony from Williams during his disciplinary hearing that he suffered through an abusive relationship with his defendant-turned-girlfriend, including being stabbed four different times by her. He claims her violent actions and threats contributed to his “misdeeds.”

Both Williams and the Office of Disciplinary Counsel contend the Board of Professional Conduct’s recommendation for an indefinite suspension of his law license is not justified in this case, and that similar cases have resulted in two-year suspensions.

- Stephanie Beougher

Video of oral argument also is available in Ohio. (Mike Frisch)

September 1, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, August 24, 2015

Patient Judge Not Recused

The Tennessee Court of Appeals  agreed with a trial judge that a comment made in a medical malpractice matter did not demonstrate bias requiring her recusal.

The comment

I can tell [a deponent]  how awfully I was treated in the emergency room recently, but that’s a whole other subject.

The court here

Appellants argue that the trial judge‘s negative characterization of the treatment she received at Methodist University creates an appearance of bias towards Methodist Healthcare and its employees. The judge made the comment at issue on the record during a discussion pertaining to the deposition of Methodist Healthcare CEO Gary Shorb in an unrelated case. In arguing against the deposition, one of the attorneys indicated that Mr. Shorb was not in his office being deposed each day, to which the trial judge responded as follows: "Well, I‘m sorry he‘s not. I can tell him how awfully I was treated in the emergency room recently, but that‘s a whole other subject." As she subsequently explained in a discussion off the record, the judge‘s statement was made in reference to her experience in the emergency department at Methodist University. If required to consider the trial judge‘s statement standing alone, a reasonable person might infer bias against Methodist Healthcare and its employees; however, "[a]ny comments made by the trial court must be construed in the context of all the facts and circumstances to determine whether a reasonable person would construe those remarks as indicating partiality on the merits of the case." Alley, 882 S.W.2d at 822 (citations omitted). Construed in its appropriate context, the judge‘s comment is not sufficient to require recusal...

...we cannot conclude that a reasonable person, knowing all of the facts known to the judge, would have any reasonable basis for questioning the judge‘s ability to act impartially as thirteenth juror in either of the cases before us. It appears the trial judge‘s comment was little more than a lighthearted reference to the unpleasantness that often accompanies emergency room visits. Though perhaps ill-advised, if only because of the time and expense it has taken to resolve the motions for recusal, the comment does not indicate partiality on the merits of the case when construed in the context of all the facts and circumstances.

(Mike Frisch)

August 24, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, August 22, 2015

Judge Who Lost Election Is Judge No More

The New Mexico Supreme Court rejected the claim of a judge who lost a retention election that she was entitled to stay in office.

Under Article VI, Section 33 of the New Mexico Constitution, a district judge elected to that position in a partisan election is thereafter “subject to retention or rejection in like manner at the general election every sixth year.” Section 33 does not specify when this six-year term begins, particularly when the elected judge succeeds a predecessor who has not completed his or her full term in office. In that case, does the successor judge’s election mark the beginning of a new six-year term, or does the successor judge assume the six-year term of the predecessor judge? The answer determines when the successor judge must stand for nonpartisan retention election. For the reasons that follow, we hold that under the New Mexico Constitution a judge elected in a partisan election is subject to retention in the sixth year of the predecessor judge’s term. Our holding is consistent with the intent and purpose of our New Mexico Constitution.

The State Attorney General sought a writ 

We appropriately granted the State’s petition for a writ of quo warranto. Judge Raphaelson was properly up for retention in the 2014 general election pursuant to Article VI, Sections 33, 35, and 36 of the New Mexico Constitution. Judge Raphaelson’s failure to earn 57 percent of the votes in favor of retention in the 2014 general election resulted in her loss of the seat. Any effort to remain in office beyond December 31, 2014 contravened the  Constitution, justifying our writ of quo warranto.

The Albuquerque Journal reported on the Attorney General's position.

Abovethelaw had reported on the judge's post-defeat efforts to hang on. (Mike Frisch)

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

Thursday, August 20, 2015

Judge Who Stole Cocaine Evidence Suspended

A former Pennsylvania judge has been suspended from practice as a result of a criminal conviction.

Details from the Pittsburgh Post-Gazette

Former Washington County Common Pleas Judge Paul Pozonsky stood before the court Monday as a “broken man,” his voice catching as he described losing his job, his reputation and, soon, his wife to an addiction he fueled through stealing cocaine submitted as evidence in his court.

“I made terrible decisions,” he said. “It’s taken away the only job I ever loved.”

For those crimes, Mr. Pozonsky will spend 30 days in the Washington County Jail. Visiting Judge Daniel Howsare of Bedford County ordered him to serve up to 23½ months, but the 59-year-old is expected to be released on parole after one month.

Mr. Pozonsky was scheduled to surrender at 4 p.m. Monday. Defense attorney Robert Del Greco said he needed the afternoon to arrange for the care of his elderly parents, who he had been living with in Muse. After parole, he’ll spend two years on probation in Washington County and will be responsible for more than $15,000 in fees and other court costs.

In explaining his decision, Judge Howsare called the situation “very difficult” and said he didn’t intend to “add salt to the wound.” But he said some incarceration was required for the former judge who created the county’s drug court, knew counseling was available and “instead decided to use the evidence … to satisfy his drug use.”

“It’s a factor that’s difficult to overlook,” he said.

Mr. Pozonsky abruptly retired in June 2012, halfway through his second 10-year term and a month after he was stripped of handling criminal cases by the president judge. Investigators found that some evidence bags in his chambers had been tampered with, their seals broken, and some cocaine had been replaced with baking soda.

He pleaded guilty in March to three misdemeanors — theft by unlawful taking, obstructing administration of law and misapplication of entrusted property — and in exchange, prosecutors dropped three other charges and agreed not to seek incarceration as a penalty. Also that month, Mr. Del Greco said Mr. Pozonsky has been “clean and sober” going on four years.

On Monday, he called his client “the victim of a career-ending, self-inflicted wound.”

“To say that he has suffered mightily is an understatement,” Mr. Del Greco said. He said Mr. Pozonsky will probably be disbarred soon. He has lost his pension of $98,000 per year plus full medical coverage for life.

In asking for leniency, Mr. Del Greco noted the former judge’s 28 years of public service, his role in creating the county’s drug court and the more than 70 letters of support from former prosecutors, colleagues, family, defendants and others.

Jim Kohler, 64, and his daughter Kerri Kohler, 39, who went through Mr. Pozonsky’s drug court, addressed the court.

“He saved my life,” Ms. Kohler said.

Mr. Pozonsky said a “confluence of events” led to his drug use, including family, work and personal issues. He began abusing prescription medicine after a car accident and progressed to cocaine, he said.

He apologized to the court and the residents of Washington County.

“My conduct was inexcusable,” he said.

Deputy Attorney General Michael Ahwesh, lead prosecutor on the case, pointed out that Mr. Pozonsky began getting treatment May 14, 2011, but continued to ask police to turn over cocaine.

“He realized he had a problem and he didn’t do anything,” Mr. Ahwesh said. “The defendant turned the courtroom into his stash house and basically made law enforcement his private suppliers of cocaine.”

After handing down the sentence, the judge called for a recess to discuss where Mr. Pozonsky should serve the 30 days. Mr. Del Greco said he wanted him to stay in Washington County for the jail’s work-release program, and that it’s unlikely anyone the former judge sentenced would still be in the lockup unless the person is a repeat offender.

After the hearing, Barry and Andrea Aller of Burgettstown, whose late daughter Desire’e was in Mr. Pozonsky’s drug court, told reporters they had hoped for a harsher penalty.

“I just don’t think it’s fair that he could do that and sentence people when he himself could have been high sitting on the bench,” she said. “How can you be an addict only in the evening?”

Mr. Pozonsky told Judge Howsare he was never under the influence at work.

Final discipline will be imposed after disciplinary proceedings based on the conviction are concluded. (Mike Frisch)

August 20, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)

Tuesday, August 11, 2015

No Place For Humor

The Ohio Supreme Court found an attorney in contempt for failure to comply with an earlier court order.

The court ordered that the stayed two-year suspension revoked and imposed the actual suspension.

This report of the Board of Commissioners on Admissions and Grievances describes his background

Respondent was admitted to the practice of law in the state of Ohio on November 9, 1974. Respondent is a graduate of the University of Michigan Law School. Respondent is 64 years old. Respondent has been a domestic relations magistrate for 33 years, serving in Crawford and Morrow counties and currently in Delaware County.

He is a "highly motivated public servant"

Respondent manages a busy case docket, including highly contentious and emotional domestic litigation. Respondent estimates that counting divorce trials, post decree matters, civil protection orders, child support enforcement agency matters, and other miscellaneous matters, he conducts approximately 1,000 hearings per year. Respondent prides himself on quick turnaround of his written decisions. Respondent enjoys his work and would like to work one or two more years after he turns 65 this year.

But, as like all of us, no one is perfect

Certain of the character letters also mention other aspects of Respondent's character that are somewhat consistent with Respondent's behavior in the Davis/Spriggs and the Krawczyk matters. Specifically, some of the letters describe Respondent as quick-tempered.  Respondent is also described as having a quirky or unusual sense of humor that he sometimes uses to break the tension.

One matter that led to the misconduct

The Davis/Spriggs matter involved a former wife's motion to hold her former husband in contempt of court for distributing nude pictures over the internet of the former wife in violation of the divorce decree. The litigation lasted over two years resulting in numerous discovery disputes and a five-day trial on the merits. Respondent's misconduct consisted of several isolated incidents occurring at various times during this bitterly contested litigation...

On several occasions during status conferences and motion hearings, Respondent conducted himself in an unprofessional and undignified manner and treated the wife and her lawyer with extreme disrespect. During a status conference regarding the logistics of the wife's expert examining the husband's computers, Respondent mockingly imitated the voice of the wife's attorney over the telephone in her presence. After that hearing, Respondent walked into the hallway where the wife was seated and "slowly ogled" the wife "from head to toe in a demeaning and degrading fashion." Respondent later told the wife's attorney that she would need to provide Respondent with a CD containing intimate photos of Davis' then current girlfriend. At the hearing, Respondent explained that the photos of the girlfriend were relevant to the proceeding, but he acknowledged that in asking for them. "I probably said some wise thing." Stipulation 20, 23, 26; Hearing Tr. 29-36.

Respondent acknowledged that all of the above comments were inappropriate. Respondent admitted that he was "'being a wise ass, and not thinking before you talk." Respondent acknowledged that his looking at the wife in a manner that she perceived to be degrading was "stupid" on his part. Id. 21, 32.

 During a discovery motion hearing regarding the lawyers' having withheld requested discovery, Respondent lost his temper stating: "This is so goddamn simple. If you give the discovery and don't do all this bullshit, I don't have to sit here for hours and listen to this crap. So everybody's excused. Goddamn it. Comply with the discovery and shut up once in awhile. You make 17 hairline things, we'll do 8 of them but not these 9. Stupid, All Franklin County attorneys are stupid." Stipulation 29; Ex. 5.

While the wife's attorney was addressing Respondent in a pretrial conference regarding recently filed motions, Respondent allowed the husband's attorney to repeatedly throw paperclips at Respondent's head with one or more striking Respondent on the forehead. Respondent took no action to stop the lawyer from creating this disruption. Stipulation 31.

Later during the trial, and just before the wife was to take the stand for crossexamination, Respondent jokingly told the husband's attorney that Respondent would give the husband's attorney a dollar if he could make the wife cry during her cross-examination. At the same time, Respondent removed a dollar bill from his wallet and placed it on the bench.

(Mike Frisch)

August 11, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)

Monday, August 10, 2015

Common Pleas Judge Reinstated To Practice After Felony Conviction

The Ohio Supreme Court has reinstated an attorney suspended as a result of a felony conviction.

The Morning Journal reported on the charges

Lorain County Common Pleas Judge James Burge was indicted Sept. 24 by a grand jury from Ohio Attorney General Mike DeWine’s office.

Burge, 67, is facing three counts of falsification, three counts of tampering with records, three counts of soliciting improper compensation and three counts of having an unlawful interest in a public contract...

According to the indictment, on Jan. 24, 2012, Burge allegedly made a false statement or “knowingly swear or affirm the truth of a false statement previously made, when the statement was in writing on or in connection with a report or return that is required or authorized by law.”

The indictment states that Burge allegedly tampered with records Jan. 24, 2012, of a 2011 Ohio Financial Disclosure Statement “and the writing, data, computer software or record was kept by or belonged to a local, state or federal government entity.”

It further alleges that Burge tampered with a 2010 Ohio Financial Disclosure Statement and a 2012 disclosure statement.

He allegedly solicited improper compensation from Feb. 1, 2011, to June 7, 2011, while serving as a public official by knowingly soliciting or accepting contributions, according to the indictment. 

The indictment also charges Burge with having an unlawful interest in a public contract. The indictment stated that Burge did “knowingly authorize or employ the authority or influence of his office to secure authorization of any public contract in which he, a member of his family, or any of his business associates had an interest.”

Six of the charges are felonies.

The Chronicle- Telegram reported on his conviction by jury and efforts to regain his law license.

The court's order did not explain its reasoning for the reinstatement.

See comment below: conviction on which suspension was based has been vacated. (Mike Frisch)

August 10, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)

Thursday, July 23, 2015

Understandable Impulse Leads To Censure Of Town Court Justice

The New York Commission on Judicial Conduct has censured a town court justice who

created the appearance of impropriety and lent the prestige of his judicial office to advance his son's private interests by requesting leniency for his son from two law enforcement officers in two separate conversations concerning impending charges of Overdriving, Torturing and Injuring Animals, a misdemeanor, and Violating Prohibited Park Hours, a violation under the local law.

The justice was contacted by police concerning his 19 year old son

Officer McCully led respondent to the women's restroom where he had earlier found Joseph Sullivan with two small kittens. One of the kittens had been hog-tied with tape, and there was a lighter nearby. Officer McCully informed respondent that his son would be charged at a later time and would be allowed to go home with respondent that night. Respondent was given custody of the kittens to return them to the location where his son had obtained them. No charges were issued against respondent's son that night.

Early the next morning, Saturday, July 20, 2013, respondent telephoned Whitestown Chief of Police Donald Wolanin on the chief's cell phone to discuss the incident in the park the night before. Respondent told the chief that he hoped that the police would not "go piling on" charges or "overcharge" his son, or words to that effect. 

On Monday

at the conclusion of respondent's court session, Officer McCully entered the Whitestown Town Court and asked to speak with respondent. The two went outside the building, where Officer McCully said that he needed respondent's son to come to the police station where the officer would issue an appearance ticket for animal cruelty and being in the park after hours. Respondent stated, "Do you really have to arrest him?" or words to that effect. Respondent told Officer McCully that if his son was arrested it would ruin his chances of getting a job with the Oneida County sheriff.

The commission

By acting as his son's advocate in two conversations with law enforcement officials while seeking leniency with respect to impending charges, respondent lent the prestige of his judicial office to advance his son's private interests...

While it is understandable that respondent was concerned for his son and hoped for leniency in the officers' assessment of potential charges, his '"paternal instincts' do not justify a departure from the standards expected of the judiciary"

The justice is not an attorney. (Mike Frisch)

July 23, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, July 22, 2015

Tears Of A Judge

SunEthics has a recent case of interest involving judicial disqualification from the Florida Fourth District Court of Appeal. 

There had been bad blood between the judge and petitioner's counsel such that, as a matter of tactics, another member of counsel's firm handled a second trial,

The alleged hostility arose in an unrelated Engle case wherein the judge issued a fifteen-page order granting a motion for new trial based largely on counsel’s courtroom behavior.

Within that order the judge detailed the attorney’s conduct characterizing it as misleading and a fraud on the court. The hostility between the two carried over into proceedings concerning the judge’s nomination for appointment to the federal bench. The judge furnished the nominating committee a copy of the order as a writing sample. Thereafter, the attorney sent the committee a letter challenging the facts contained in the order and questioning the judge’s suitability for appointment to the federal bench. Following the judge’s unsuccessful nomination, petitioner and other Engle plaintiffs represented by the attorney and his firm moved to disqualify the judge. The judge denied the motion, and we denied the prior prohibition petition.

But an issue arose when counsel attended closing arguments

The events surrounding this second motion arose after the attorney was present in the courtroom to observe a portion of a firm member’s closing arguments and after the jury returned its verdict. According to petitioner, she and her trial counsel approached the bench to thank the judge. Petitioner alleges that as the two were walking away from the bench, the judge commented that she had seen the attorney in the courtroom and that she would “never forgive him for what he did to me.” Petitioner alleged that it appeared to her that the judge was “highly emotional and on the verge of tears as she said this.”

Petitioner alleged that while she was previously aware of the issues between the judge and her attorney, she did not appreciate “the depth of the hostility or how deeply hurt the judge was by [counsel’s] active opposition to her quest for a federal judgeship.” Petitioner’s trial attorney, who was present at the bench with petitioner, furnished an affidavit echoing petitioner’s representation of the judge’s comments and adding that the judge said she “will never forget what he did. I will never forgive him and I took it personally. It was very hurtful and it made me cry.” Counsel added that the judge told him that he could communicate that sentiment to the attorney...

Accepting the allegations within the motion and affidavits as true, we conclude that the judge’s alleged inability to restrain either her utterances or her emotions in front of the petitioner would, if true, show that the experience profoundly affected her and made her future impartiality reasonably suspect. The source of this prejudice is personal and unrelated to petitioner’s case and trial counsel’s conduct therein. See, e.g., Lamendola v. Grossman, 439 So. 2d 960 (Fla. 3d DCA 1983). Though we previously concluded that any hostility arising from the events of the judicial nominating process did not warrant disqualification, the judge allegedly opened the door and displayed the depth of such hostility by failing to remain silent despite the passage of time.

Based on the foregoing, we conclude that a reasonably prudent person would be in fear of not receiving fair and impartial judicial review of the pending matters.

The case involves litigation against tobacco companies.

Palm Beach Coast had this coverage. Daily Business Review also had a report. (Mike Frisch)

July 22, 2015 in Judicial Ethics and the Courts, Law & Business | Permalink | Comments (0)