Legal Profession Blog

A Mentor's Bad Advice Leads To Judicial Censure

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

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

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

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

Missing Link

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

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

Don't Walk

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

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

ANSWER: No.

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

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

(Mike Frisch)

Stayed Suspension For Ohio Magistrate

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

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

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

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

No Duty To Report "Robosigner"

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

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

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

(Mike Frisch)

Open To The Public

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

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

Traffic Court Judge Indicted, Suspended

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

The suspension was imposed by the Court of Judicial Discipline.

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

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

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

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

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

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

Elected Judge May Complete Expert Witness Testimony

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

ISSUES

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

ANSWER: Yes.

FACTS

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

The Committee's reasoning:

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

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

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

(Mike Frisch)

Supreme Court No Pulpit For Bully

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

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

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

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

Spousal Support Draws Reprimand

The Florida Supreme Court has publicly reprimanded a Broward County Judge in connection with his handling of a motion to disqualify himself.

The motion alleged a conflict between moving counsel and the judge's spouse. The spouse had been a losing candidate for judicial office. A lawsuit was filed agaionst the spouse alleging that "she had improperly campaigned under her maiden name."

The attorney seeking disqualification had supported another candidate and participated in the lawsuit over the maiden name.

At the hearing on the motion to disqualify, the reprimanded judge called his spouse as a witness and threatened the moving attorney with a bar complaint. (Mike Frisch)

The Ethics Of Judicial License Plates

The New York State Commission on Judicial Conduct seeks comment on the nettlesome ethical issues that surround the use of judicial license plates.

The letter notes a number of policy considerations. Might placards rather than plates be appropriate for judicial parking purposes? Are there security risks created when the judge is away from the courthouse? Might a judge be accorded favorable treatment on moving violations?

When these issues get resolved, I hope that there is consideration of the ethical issues concerning judicial vanity license plates.

 We would not want judges driving around with ALL RISE or HANG THEM plates. (Mike Frisch)

Going To The Dogs

The New York Commission on Judicial Conduct has accepted an agreed statement of facts and ordered a public censure of a town court justice on charges that she had "failed to expeditiously transfer from her court tickets issued to herself and her sons for violations of a dog-control ordinance, sent improper messages to the animal control officer and the judges of the transferee court, and failed to maintain proper records of the tickets."

There are concurring opinions and a dissent.

The dissent by member Richard Emery invokes George Orwell and calls the actions a corrupt effort to transfer blame from the justice to her children:

This sort of bald-face, corrupt behavior should not be clothed in bland, obfuscatory language...Perhaps it is even worse because she was using her official position not only to benefit herself, but to do so by incriminating others - her children....I believe that the matter should proceed to a hearing at which respondent will get the due process she does not seem to understand, even for her own children."

The tickets at issue involved charges of Dogs Running At Large. The justice had told the transferee judges that "Hanna" was owned by her son Mark and that "Sophie" was her son Matthew's dog. (Mike Frisch)

Pistol Packing Judge Censured

A judge who had approved his own application to carry a concealed weapon and carried his pistol to court chambers has been censured by the New York State Commission on Judicial Conduct.

The judge decided to carry a weapon after he had been theatened by individuals on two occasions and followed home from court by persons unknown.

The problem came to light on January 21, 2010 when the judge attempted to repair his revolver in his chambers. He did not know that it was loaded but nonetheless pointed it at a concrete wall for safety reasons. The gun accidentally discharged and, fortunately, no one was hurt. The .38 caliber bullet was recovered from a chambers wall.

The judge will retire on December 31, 2012. (Mike Frisch)

Delayed Justice Or Pound Of Flesh?

The New York Commission on Judicial Conduct has ordered the removal from office of a family court judge as a result of charges that he had "engaged in a sexual act with his five-year-old niece" in 1972.

The incident took place when the judge was 25 years old and prior to his admission to the Bar.

He "admitted that in or about 1972 his five-year-old niece touched his hand while he was stroking his penis; denied that his actions violated the cited ethical rules, and as an affirmative defense, alleged that the Commission lacks jurisdiction because the incident predated his service as a judge by approximately thirteen years."

There is a concurring/dissenting opinion that notes that the judge resigned from office when notified of the complaint. The opinion further notes that the victim "still emotionally troubled by the horrible incident and seeking a measure of justice," approached the prosecutor's office and gained an admission from the judge while wearing a wire.

The matter then was referred to the Commission, which proceeded notwithstanding the judge's prompt resignation:

I am not unmindful that, particularly in the wake of the sexual abuse scandals at Penn State and Syracuse University [which is in the county where the judge sat], no public official or body wants to appear to have shown any leniency whatever to an alleged sex offender - even where the offending act occured so much earlier...

...we should want to encourage judges, directly confronted with the error of their ways, as here, to quickly and unqualifiedly resign in the face of egregious allegations of wrongdoing of which they are clearly guilty. We should not, except in an appropriate case which this is not, require a post-resignation removal simply for a disciplinary authority to gain a very public pound of flesh, fearful of criticism for supposed leniency if it does not demand removal.

Stated most directly - the horrific conduct of respondent, who has now descended from the bench leaving his robes and gavel behind, occurred 40 years ago. It is now time to close this book.

The order of removal called the conduct "abhorrent and not attenuated by the passage of time."

CNYCENTRAL.com has this report. (Mike Frisch)

No Hermits Need Apply

The Washington State Court of Appeals has ordered a new trial in a matter in light of the (undisclosed on the record) relationship between the judge and opposing counsel.

The case involved the end of a nine year intimate relationship between the parties. The opposing counsel and judge had been in a two-attorney partnership and had other ties.

A dissent noted that the relationship was known to the attorney for the dissatisfied litigant and would impute that knowledge to the client.

This appeal came about because a disgruntled litigant, unhappy with ending up with three times as much property as his former partner, decided to attack the decision- maker. Unable to find the "dirt" he assumed he would find, the litigant then focused on the judge's former relationship with opposing counsel and ignored his own counsel's relationship with the judge. Unless a judge in a small community was a hermit or a newcomer to the region (neither of which is a good foundation for the position) before assuming the bench, the judge will necessarily have had relationships -- business or personal -- with most of the attorneys in the community. That is not necessarily a bad thing. Those relationships will also be known to most members of the bar, either through direct experience or from disclosure in other cases. It is not inappropriate for a trial judge to consider those facts -- whether raised by the litigant or not -- when ruling on a motion to recuse.

(Mike Frisch)

Mother In Law

A new judicial ethics opinion from South Carolina:

ADVISORY COMMITTEE
ON STANDARDS OF JUDICIAL
CONDUCT

OPINION NO. 12 - 2012

RE:  The propriety of a Family Court judge presiding over cases in which the judge's secretary's daughter-in-law, or members of her firm, appear as  attorneys.

FACTS

A Family Court Judge employs a secretary/assistant whose daughter-in-law is an attorney.  The daughter-in-law, and other members of her firm, practice exclusively in the area of domestic law, and are likely to appear in the Family Court in the County where the judge presides.  The Family Court judge seeks an opinion as to whether the judge can preside in matters in which the secretary's daughter-in-law (or other member of her firm) appears as an attorney and what
disclosures, if any, are required.

CONCLUSION

A Family Court Judge may preside over cases in which the daughter-in-law of the judge's secretary (or a  member of the daughter-in-law's firm) appear as attorneys for a party.

OPINION

According to Canon 3E of the Code of Judicial Conduct, “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: . . . (d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:  (i) is a party to the proceeding, or an officer, director, or trustee of a party; (ii) is acting as a lawyer in the proceeding [or], (iii) is known by the judge to have a more than minimis interest that could be substantially affected by the proceeding.”  Rule 501, SCACR.  The Commentary to that section notes that "[t]he fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge." 

Here, none of the judge's relatives will appear as an attorney in a proceeding.  In other words, the situation here does not involve the appearance of "the judge or 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 4E.  Thus, the judge is not disqualified from presiding over matters in which the secretary's daughter-in-law or other members of her firm appear.  However, according to the Commentary of Canon 4E., "[a] judge should disclose on the record information that the judge believes that 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."

(Mike Frisch)

Judicial Deliberative Privilege Upheld

The Massachusetts Supreme Judicial Court has upheld (with modifications) a subpoena issued to a judge who is the subject of a complaint:

In this case we conclude that although holding judges accountable for acts of bias in contravention of the Code of Judicial Conduct is essential, it must be accomplished without violating the protection afforded the deliberative processes of judges fundamental to ensuring that they may act without fear or favor in exercising their constitutional responsibility to be both impartial and independent. In so concluding, we formally recognize a judicial deliberative privilege that guards against intrusions into such processes--a protection we have implicitly understood as necessary to the finality, integrity, and quality of judicial decisions. Such a privilege is deeply rooted in our common-law and constitutional jurisprudence and in the precedents of the United States Supreme Court and the courts of our sister States.

The complaint filed with the Commission on Judicial Conduct by a district attorney alleging judicial bias. The judge had sought to quash a subpoena for testimony.

The court held:

The portion of the subpoena relating to the twenty-three new cases is not so vague as to be unreasonable or oppressive. The commission has provided the judge with the name, date, and docket number of each of the new cases. The special counsel has also identified the subject area of inquiry with respect to each of the cases: jury trial waivers and trial proceedings; police testimony; motions to suppress and pretrial proceedings; bail and sentencing determinations; or "other allegations." Each of these areas of inquiry is further broken down into up to seven specific subcategories of alleged misconduct. A review of the dockets in concert with the misconduct allegations related to each subject area should make clear the particular allegation related to each of the new cases. Especially in light of our holding that the judge need not answer questions that are protected by a judicial deliberative privilege, we are satisfied that the judge will be able to prepare adequately for questioning on the basis of the notice provided.

Conclusion. The case is remanded to the single justice to oversee the issuance of a revised subpoena consistent with this opinion.

The case is In the Matter of the Issuance of a Subpoena, decided today. (Mike Frisch)

A Bridge Too Near

The Florida Supreme Court has publicly reprimanded a judge who was observed driving in an erratic manner and ultimately crashed into a bridge.

When the police arrived, she explained that the accident was as a result of her talking on a cell phone. The officer suspected that the real cause was alcohol intoxication.

Further:

[The judge was] unable to tell the officer where she was coming from or going, but she later recalled that she may have been at a restaurant.

Initially, the judge refused to exit the vehicle. She also refused to submit to sobriety tests in the field and at the county jail.

The judicial discipline matter was resolved by stipulation. (Mike Frisch)

Third (Branch) Eye Not Blind

Wisconsin Supreme Court Justice Ziegler has recused herself in the matter involving her colleague Justice Prosser:

Before Annette Kingsland Ziegler, J.

 ¶1   This matter is highly unique and presents extraordinary facts and legal circumstances.  On June 25, 2012, Justice David T. Prosser, through his attorney, requested that I disqualify or recuse myself from the above-referenced matter, asserting that I am a material witness who was present at the February 10, 2010, and June 13, 2011, events that are the subject of the complaint.  Justice Prosser has made essentially the same request of each of his six colleagues on the supreme court.  In State v. Henley, 2011 WI 67, ¶2, 338 Wis. 2d 610, 802 N.W.2d 175, this court concluded that "determining whether to recuse is the sole responsibility of the individual justice for whom disqualification from participation is sought."  Accordingly, this decision addresses my individual position on my recusal or disqualification.  Nonetheless, each justice is presented with a similar fundamental issue.

¶2   The highly unusual issue each justice is called upon to decide is whether he or she, being a material witness to or co-actor in an alleged altercation between two colleagues, may sit in judgment of one or both of the justices involved in the alleged altercation?  The answer to that issue, for me, is an ineluctable "no."

¶3   First and foremost, my conclusion is dictated by the law on judicial ethics.  Pursuant to Wis. Stat. § 757.19(2)(b) (2009-10), "[a]ny judge," including a supreme court justice, "shall disqualify himself or herself from any civil . . . action or proceeding when one of the following situation occurs . . . (b) When a judge is a party or a material witness . . . ."  That rule is echoed by SCR 60.04(4)(e)4. of our Code of Judicial Conduct, which provides that a judge "shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish one of the following . . . (e) The judge . . . 4. Is to the judge's knowledge likely to be a material witness in the proceeding." Likewise, SCR 60.04(4)(a) directs that a judge shall recuse himself or herself in a proceeding when the judge has "personal knowledge of disputed evidentiary facts concerning the proceeding."  Again, the law leads me to the irrefutable conclusion that I must disqualify or recuse myself from the above-referenced matter

¶4   My conclusion is also in accordance with the principles of fundamental fairness and the right to a fair and impartial decision-maker, a right that precludes a judge from prejudging a case.[6]  In our country and in our state, everyone, even a supreme court justice, is entitled to a fair tribunal.  Indeed, both the United States Constitution and the Wisconsin Constitution guarantee equal protection under the law.  U.S. Const. amend. XIV, § 1; Wis. Const. art. 1, § 1.  Under the highly unusual factual situation in the instant case, each justice is in the position to have already formed conclusions regarding the nature of the events that occurred on February 10, 2010, June 13, 2011, and prior thereto.  That is, each justice, as a witness, has his or her own perspective on what occurred on February 10, 2010, and June 13, 2011.  As far as I am concerned, there is simply no way for me to separate my personal perceptions and fairly and impartially judge this matter.  Because, at a minimum, the justices are witnesses and all justices are likely to be called as material witnesses in the proceeding, recusal is required.  Frankly, there is no need for a three-judge panel to conduct an evidentiary hearing and make findings of fact, see Wis. Stat. § 757.89, because the justices, the final decision-makers, already know the facts.  Consequently, any findings of fact by the three-judge panel would be window-dressing at best.

¶5   In the recent past, this court has employed the common law "Rule of Necessity" when deciding to adjudicate a particular matter but has never applied the Rule of Necessity in a case in which the justices were also material witnesses.  Under the Rule of Necessity, "where all are disqualified, none are disqualified."  Ignacio v. Judges of the U.S. Court of Appeals for the Ninth Circuit, 453 F.3d 1160, 1165 (9th Cir. 2006) (internal quotations omitted).  Given the unique factual situation of the instant case, applying the Rule of Necessity would produce an absurd result: even Justices Bradley and Prosser would presumably be required to participate.  Certainly, application of the common law Rule of Necessity should not result in the defendant, potential defendant, and the witnesses also sitting in final judgment of the case.

¶6   Unfortunately, some parties do not receive their day in court despite wishing to be heard.  For example, some parties are deprived of their day in court because the statute of limitations has passed, a court order has been violated, evidence is suppressed, or a myriad of other circumstances occur that have nothing to do with the merits of the underlying dispute.  Here, if a quorum of four justices cannot hear this matter, this may be one of those circumstances.

¶7   Justice is supposed to be blind, but justice is not supposed to turn a blind eye to the obvious.  An obvious conflict is presented by simultaneously participating as material witness and final decision-maker.  Given these extraordinary circumstances, I simply see no legitimate basis upon which I could participate in this case.  Thus, I respectfully disqualify and recuse myself from the above-referenced matter.

The opinion (with footnotes) is linked here. (Mike Frisch)

Scout's Honor

A recent opinion from the Florida Judicial Ethics Advisory Committee:

ISSUES

1. May a judge give a keynote speech at the local council  of Girl Scouts’ annual business meeting where the meeting’s purposes are to  report on the council’s status and recognize adult volunteers?

ANSWER: Yes.

2. May a judge give a keynote speech at the Girl  Scouts’ annual Gold and Silver Award Ceremony where the speech’s purposes are  to congratulate girls who have earned the highest awards available and encourage  them to be involved in the community?

ANSWER: Yes.

 

FACTS

The inquiring  judge states that she is a lifelong member of the Girl Scouts, and has been  very active in the local council of the Girl Scouts at both the program level and  leadership level.  She resigned from the  Girl Scouts’ Board of Directors upon her appointment to the bench, but the  local council would like to recognize her for her involvement in the Girl Scouts  program.  There is no charge for any of  events at which the inquiring judge has been asked to speak.

But what about Boy Scouts?

The inquiring  judge also asks if there is a prohibition against speaking at the Boy Scouts’  Eagle Award ceremony.  Although the  inquiring judge has not provided any information about the event, and whether  there is a cost to attend, her speech would be permissible under Canon 5 as  long as the facts relating to the Boy Scouts’ ceremony are consistent with this  Opinion.

        (Mike Frisch)