Wednesday, October 15, 2014

Niagara Fails

A justice of the Niagara Falls City Court has been admonished by New York Commission on Judicial Conduct for mistreatment of a pro se litigant

Respondent asked Mr. Santana some basic informational questions about, inter alia, his employment, falnily and birthplace. Mr. Santana gave the name of his employer, but then said something in Spanish and indicated he could not understand respondent's inquiry regarding the nature of his work. When respondent asked, "Where were you born?" Mr. Santana asked, "Como est' Ms. Vasquez said, "Pardon me?" Respondent repeated the question, and Ms. Vasquez answered, "Puerto Rico." Mr. Santana then stated, "Puerto Rico, yeah."

Respondent thereupon stated: Okay. Go ahead, Mr. Koryl. I think he understands English. The last time I heard, I think Puerto Rico was bilingual.

Respondent did not inform Mr. Santana and Ms. Vasquez that no interpreter would be appointed and that the proceeding would not be adjourned.

 From the news release of the commission

 In 2013, Judge Merino presided over a summary eviction proceeding involving a Spanish-speaking native of Puerto Rico, who had limited proficiency in English. At the outset of the proceeding the judge stated that he would adjourn the proceeding so that an interpreter could be provided. However, after asking the tenant some basic questions, to which the tenant had trouble responding, the judge decided to move forward without an interpreter and ultimately issued a warrant of eviction.

The judge agreed to the sanction. (Mike Frisch)

October 15, 2014 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 1, 2014

Not So Grandson

A municipal court judge has been reprimanded by the South Carolina Supreme Court for intervening in a driving while suspended charge against her grandson

 Respondent's grandson was charged with Driving under Suspension, 1st offense. The matter was pending before a magistrate. Respondent contacted the magistrate's office and identified herself as a judge in the telephone conversation. Respondent did not place the call in an attempt to get the charge dismissed but to facilitate her grandson's plea as he was currently incarcerated on other matters...

Respondent asserts she never intended to use her position as a judge to help her grandson and that she was just trying to enable him to plead guilty to the charge. Respondent submits she did not identify herself as a judge in the second letter and that she did not write either letter on court stationary or letterhead.

Respondent since hired a lawyer to represent her grandson and the Driving under Suspension charge was resolved with a plea. Respondent is aware that she should not have used her title in speaking to the magistrate's office and regrets her conduct. Respondent submits she will not repeat her conduct in the future.

The judge admitted the ethical violations. (Mike Frisch)

October 1, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2014

Judicial Candidate Don't Need No Stinking Badges

Kathleen Maloney reports on a decision filed by the Ohio Supreme Court

The Ohio Supreme Court today found  that part of a rule governing the conduct of candidates running for judge is  unconstitutional.

In an opinion written by Justice  Judith Ann Lanzinger, the court held that the portion of Jud.Cond.R. 4.3(A)  that prohibits a judicial candidate from conveying true information about the  candidate or the candidate’s opponent that is nevertheless deceiving or  misleading to a reasonable reader violates the candidate’s constitutional right  to free speech. The court severed this part of the rule from the Code of  Judicial Conduct.

In addition, the court affirmed  the public reprimand of Colleen M. O’Toole by a court-appointed commission reviewing  the matter for wearing a name badge stating that she was a judge. At that time,  she was not a judge but was running for a spot on the Eleventh District Court  of Appeals. But the court dismissed a charge concerning language that appeared on  her campaign website in light of ruling that the related judicial conduct rule  is unconstitutional.

O’Toole served as a judge in the  Eleventh District from 2004 to February 2011. In 2012, she ran again for judge  on the same court and subsequently won the election.

Before the election, a grievance was filed  against O’Toole for certain campaign activities. A five-judge commission appointed  by the Ohio Supreme Court found that statements posted on O’Toole’s campaign  website were misleading and worded to give the impression she was a sitting  judge in 2012. The commission also concluded that a name badge she wore during  her campaign, which read “Colleen Mary O’Toole, Judge, 11th District Court of  Appeals,” left the impression that she was still a judge at that time.

The commission publicly  reprimanded O’Toole and also ordered her to pay a $1,000 fine, the costs of the  proceedings, and $2,500 in attorney fees.

O’Toole appealed to the Ohio  Supreme Court, in part challenging the constitutionality of Jud.Cond.R. 4.3(A).

Rule 4.3 provides standards for  communications by candidates during campaigns for judicial office. Justice  Lanzinger noted that “section (A) restricts two categories of speech by  judicial candidates such as O’Toole: (1) speech conveying false information about the candidate or her opponent and (2)  speech conveying true information  about the candidate or her opponent that  nonetheless would deceive or mislead a reasonable person.”

The rule is a content-based  regulation protected by the First Amendment to the U.S. Constitution, Justice  Lanzinger explained. To prove that the rule is constitutional, she added, the  government must show that the regulation serves a compelling state interest,  and the rule must be narrowly tailored to meet that interest.

The court stated that the Code of  Judicial Conduct, including this rule, is designed to promote and maintain an  independent, fair, and impartial judiciary and to ensure public confidence in  the judicial system – both compelling state interests.

After pointing out that lies do  not add to a robust political atmosphere and are not protected by the First  Amendment in the same way that truthful statements are, Justice Lanzinger  wrote, “The portion of Jud.Cond.R. 4.3(A) that limits a judicial candidate’s false speech made during a specific time  period (the campaign), conveyed by specific means (ads, sample ballots, etc.),  disseminated with a specific mental state (knowingly or with reckless  disregard) and with a specific mental state as to the information’s accuracy  (with knowledge of its falsity or with reckless disregard as to its truth or  falsity) is constitutional.”

“However, the latter clause of  Jud.Cond.R. 4.3(A) prohibiting the dissemination of information that ‘if true,’  ‘would be deceiving or misleading to a reasonable person’ is unconstitutional  because it chills the exercise of legitimate First Amendment rights,” she  concluded. “This portion of the rule does not leave room for innocent  misstatements or for honest, truthful statements made in good faith but that  could deceive some listeners.”

Under its constitutional  authority to regulate the practice of law, Justice Lanzinger wrote that the court  today “narrow[s] Jud.Cond.R. 4.3(A) to provide that no candidate for judicial  office shall knowingly or with reckless disregard do any of the following: ‘Post,  publish, broadcast, transmit, circulate, or distribute information concerning  the judicial candidate or an opponent, either knowing the information to be  false or with a reckless disregard of whether or not it was false.’ The  remaining language in Jud.Cond.R. 4.3(A), ‘or, if true, that would be deceiving  or misleading to a reasonable person,’ is severed.”

The court then determined that  O’Toole violated the conduct rule by wearing a badge claiming she was a judge  during a time when she did not hold judicial office. The court agreed with the  commission that a public reprimand for the misconduct was appropriate.

“This intentional  misrepresentation is not protected speech under the First Amendment,” Justice  Lanzinger reasoned. “By repeatedly calling herself a judge when she was not,  O’Toole undermined public confidence in the judiciary as a whole.”  

However, the allegation that  O’Toole’s website was crafted in a way to mislead readers into thinking she was  a sitting judge running for reelection is dismissed, given the language that  has been severed from the judicial conduct rule, Justice Lanzinger explained.

The court also lifted an earlier  stay on the imposition of the fine, costs, and attorney fees.

Justice Lanzinger’s opinion was joined  by Chief Justice Maureen O’Connor, Justice Terrence O’Donnell, Justice Judith  L. French, Judge Vernon Preston of the Third District Court of Appeals, and Judge  Patrick Fischer of the First District Court of Appeals. Judge Preston served in  place of Justice Sharon L. Kennedy, and Judge Fischer filled in for Justice  William M. O’Neill. Justices Kennedy and O’Neill both recused themselves from  the case.

Justice Paul E. Pfeifer concurred  in the majority’s judgment except for the award of $2,500 in attorney fees. He  noted that the original complaint was filed by a friend of O’Toole’s political  opponent in the 2012 election and included 12 counts of alleged misconduct.  Nine counts were dropped before the hearing conducted by a disciplinary panel,  and one was dismissed after the hearing.

The judicial commission  ordered O’Toole to pay $2,500 in attorney fees based on two violations of the  judicial conduct rules. Because the court has found that O’Toole committed only  one violation, Justice Pfeifer would cut the attorney fees in half, to $1,250.

2012-1653. In re Judicial  Campaign Complaint Against O'Toole, Slip  Opinion No. 2014-Ohio-4046.

Video camera icon View oral argument video of this case.

(Mike Frisch)

September 24, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, September 22, 2014

Judge Permanently Disbarred For Vote Buying

A former judge who pleaded guilty to a RICO count after the Sixth Cicuit had reversed his jury trial conviction of five felony counts of vote buying conspiracy accepted permanent disbarment by the Kentucky Supreme Court.

The court

Ultimately, on November 6, 2013, Maricle entered a negotiated guilty plea to the RICO charge. He admitted that he and his associates accessed the Clay County Board of Elections in order to corruptly influence the outcome of elections. Furthermore, he confessed to providing cash to bribe voters with the understanding that his associates would ensure that the bribed voters cast their ballots as directed. Additionally, Maricle acknowledged that several of his associates received public works contracts (some of which were funded by federal grant money) by virtue of their participation in the election-fraud enterprise. Pursuant to his negotiated guilty plea, he was sentenced to time served, plus supervised release for two years (to include six months of home incarceration), 200 hours of community service, and no participation in the political process.

The history is told by

The five remaining defendants in a case alleging widespread vote fraud in Clay County pleaded guilty Wednesday, capping a long-running investigation in which some of the most prominent officials in the county went to prison.

Those who pleaded guilty were longtime Circuit Judge R. Cletus Maricle, 70; two-term county Clerk Freddy W. Thompson, 50; Douglas C. Adams, 62, who was county school superintendent from 1999 to 2009; Charles Wayne Jones, 74, who had been an election commissioner; and William E. Stivers, 61, a former precinct worker.

Former Magistrate Stanley Bowling; Bart Morris, who owned a garbage-hauling business; and his wife, Debra Morris, pleaded guilty in the case in September.

The eight were charged with being part of a racketeering conspiracy to use the county Board of Elections as a tool to buy or steal votes — by appointing corrupt precinct workers, for instance — in the 2002, 2004 and 2006 elections.

Witnesses at a 2010 trial in the case said candidates pooled hundreds of thousands of dollars to buy votes as part of the scheme, with power, jobs and contracts as the prizes. A jury convicted the eight of all charges against them in 2010.

However, a federal appeals panel ruled this year that U.S. District Judge Danny Reeves, who presided over that trial, allowed prosecutors to present evidence that should not have been given to jurors. The appeals panel said the eight had not gotten a fair trial and voided the convictions.

(Mike Frisch)

Read more here:

September 22, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Friday, September 12, 2014

Judging While Intoxicated Draws Suspension

The Iowa Supreme Court has suspended a judge for 30 days without pay for judging while intoxicated

The gravamen of the original complaint that triggered commencement of the proceeding was a report that the judge arrived at a courthouse in an intoxicated state and could not perform her scheduled judicial duties...

The precipitating incident that gave rise to the complaint was the arrival of Judge Dean at the Henry County Courthouse that morning where she was said to be physically unable to take the bench. The complaint indicated reports that Judge Dean had been consuming alcohol prior to her arrival at the courthouse. The complaint also recited a history of Judge Dean’s absence from work for health-related reasons presumed to be alcohol related.

The court

The record in this case establishes that after a substantial period of difficult and painful struggle with alcoholism, Judge Dean has confronted her disease and now has demonstrated a deep personal commitment to recovery. She appears to have overcome the denial, recovered from the embarrassment, recognized the depth of the problem of alcohol dependence, and most importantly has been able to establish the kind of supportive framework associated with successful recovery over a lifetime. It has not been an easy road for her and will not always be an easy road in the future. But, the fact Judge Dean has chosen to commit herself to a disciplined program of recovery is a significant mitigating factor and offers her the potential of a continued successful judicial career. Indeed, our state is no stranger to recovering alcoholics who have performed outstanding judicial service after successfully confronting the disease.

The judge will be monitored for two years. (Mike Frisch)

September 12, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 27, 2014

Not For Adults Only: "Dignity, Always Dignity"

The South Dakota Special Committee on Judicial Ethics Campaign Intervention has issued an opinion that concludes that, with dignity, a judicial candidate can advertise in a movie theater.

The opinion relies on the Merriam Webster dictionary definition of "dignity."

Warning: it would not comport with the dignity standard to advertise for a judicial campaign in an adult movie theater.

Also, dignity may be affected by the particular movie that is being shown when the ad runs.

I welcome reader suggestions as to movies that may not satisfy the dignity standard.

For instance, how about The Verdict, where the judge clearly favors the big law firm throughout the litigation?

And what if the candidate mistakenly thinks that "Deep Throat" is a movie about the Watergate investigation?

The title post quote (which many other than my friend Paul Burgoyne may not recognize) comes from here. (Mike Frisch)

August 27, 2014 in Judicial Ethics and the Courts | Permalink | Comments (3) | TrackBack (0)

A Well-Armed Judge

The Ohio Supreme Court entered an order disqualifying a judge from sitting in light of a recent felony indictment. reported on the charges

Mason, 46, of Cleveland, who is also a former Democratic member of the Ohio Senate and represented the 25th District from 2007 to 2008, is accused of attacking his wife Aisha Mason just after noon Aug. 2 while they were driving in their car with their two children on Van Aken Boulevard.

Court documents reflect that Mason hit his wife with his fists, slammed her head against the dashboard and bit her.

They have been married since 2005 and separated this past March.

In a 9-1-1 call, his wife told dispatchers he threw her out of the car, beat her and then drove off with the children.

And from Raw Story comes the results of a search of the judge's home

About 2,300 live rounds of various calibers
- Nearly 500 shotgun slugs
- A Mossberg 12-gauge shotgun
- A Winchester shotgun
- A 50-shell shotgun belt
- A FNH P90 semi-automatic rifle still in the box
- A JLD Enterprises Inc. PTR-91 semi-automatic rifle with a scope
- A Smith & Wesson handgun
- A Springfield Armory .40 caliber-handgun
- A sword
- Four canisters of smoke grenades
- A KDH bulletproof vest
- A Jaguar knife

(Mike Frisch)

August 27, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Reprimand For Drunk Driving Judge

The Ohio Supreme Court web page reports

The Ohio Supreme Court has publicly reprimanded Peter J. Corrigan, a judge for the Cuyahoga County Court of Common Pleas, following his convictions for operating a vehicle under the influence of alcohol and impeding the roadway.

In a unanimous decision announced today, the court adopted an agreement between Corrigan and the Ohio State Bar Association, which filed the charges alleging that he violated a judicial conduct rule.

In December 2012, the judge was found slumped over the wheel of his car in an intersection. While his foot was on the brake, his car was still in the drive position. Following his arrest, Corrigan pled no contest to the charges.

The court’s per curiam opinion noted that Corrigan was sentenced to three days in jail or participation in a driver-intervention program and received a one-year driver’s license suspension and a one-year period of community control. He also paid a fine and court costs.

Based on these penalties and other mitigating factors, the absence of any aggravating circumstances, and other cases involving similar offenses, the court agreed that a public reprimand was appropriate for Corrigan.

2013-1960. Ohio State Bar Assn. v. Corrigan, Slip Opinion No. 2014-Ohio-3678.

(Mike Frisch)

August 27, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, August 25, 2014

Judges: The Next Generation

A recent opinion from the Florida Judicial Ethics Advisory Committee

May a sitting judge, who is not up for election in the current cycle, and  whose adult child is running for an open judicial position, attend the adult  child’s post-election gathering after all polls close in the relevant voting  area?



The adult child  of a sitting judge is running for an open judicial seat. The inquiring judge would like to attend the  adult child’s post-election gathering. The inquiring judge states that, in an attempt to avoid the appearance  of influencing potential voters, the judge would not attend the gathering until  all relevant polls are closed. The  inquiring judge adds that the post-election gathering will be comprised of  people who previously knew the judge as the candidate’s parent.

The majority's rationale

The intent of  Canon 7 is to separate judges and judicial candidates from political activity,  including partisan activities and, more relevant to the present inquiry,  endorsement of other candidates for public office. See Fla. JEAC Ops. 07-13, 06-13. Canon  7A(1)(b) quite specifically states that a judge shall not “publicly endorse or  publicly oppose another candidate for public office.” Canon 7D also states: “A judge shall not  engage in any political activity except (i) as authorized under any other  Section of this Code, (ii) on behalf of measures to improve the law, the legal  system or the administration of justice, or (iii) as expressly authorized by  law.” Accordingly, the dispositive  question is whether the inquiring judge’s proposed conduct constitutes a public  endorsement for purposes of Canon 7.

The majority  view is that it does not but, as noted, their position has taken into account  four unusual and very specific facts included within the inquiry. First, the Committee assumes this function is  intended as a typical victory party following the completion of the election. If so, it is difficult to conceive how the judge’s personal appearance  could influence any voters given that the act of voting was accomplished hours  before the event commenced. A different  conclusion would have been drawn if the inquiring judge’s child were in a  multi-candidate race with the prospect of a runoff.

Second, the  majority’s determination is limited to judicial races only, in which  partisanship is not a factor and the candidates themselves do not make  endorsements. In other words, this will  not be a combination of celebration and “rallying the troops” such as may be  experienced in partisan or issue-oriented politics. A post-election gathering can easily become a  political event based on what occurs, which will not be known until the event  is in progress. See, e.g., Fla. JEAC Op. 10-20: “[C]aution is strongly advised when  attending these types of events, since the purpose is for the citizens to voice  their opinions on varying issues and their expectation of receiving a pledge or  commitment on particular issues from the public figures and/or elected  officials.” See also Fla. JEAC Op. 98-17 (judicial  candidates should be cautious that their presence, remarks, and/or actions are  not construed by others to be political or partisan).

Third, it is  important that the inquiring judge not be up for election or retention during  the same cycle as the judge’s child, lest the event be perceived as  participation in a slate of candidates rather than an event limited to honoring  a specific and successful individual candidate. Conceivably a different conclusion might be drawn if both the judge and  the judge’s child had won their respective races, but for purposes of this  opinion we limit ourselves to the actual facts.

Fourth and  finally, the majority have placed considerable weight on the fact the candidate  is the inquiring judge’s child. It is  difficult to imagine that any voter would not assume that the judge supports the child’s electoral efforts even if the  judge cannot personally say so during the campaign.

The minority view is expressed in the opinion. (Mike Frisch)

August 25, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

Maine Issues Significant Judicial Recusal Opinion

The Maine Supreme Judicial Court has issued an important opinion on the subject of judicial recusal and disqualification.

The case is somewhat complex.

A Portland Maine law firm was retained by a charitable trust to foreclose on property that the trust owned.

The client (somewhat uncharitably) fell behind in its fee payments to the firm. The firm withdrew  and sued the trust for breach of contract.

Unknown to the firm, the subject property was transferred to a second charitable trust controlled by the same trustee for no consideration.

When the law firm learned of the transfer, it amended its complaint to add the second trust as a defendant and alleged that the transfer was fraudulent. The firm also filed a notice of lis pendens and attachment on the property. The court granted the relief.

The defendants sued the law firm in another county, alleging that the recording of the lis pendens constituted slander of title and tortious interference with its prospective economic advantage in reselling the property. That complaint was later dismissed on motion.

The breach of contract action was stayed in light of a fee arbitration panel proceeding. The law firm prevailed and the order was affirmed by a district court.

Proceedings in the district court were before Judge Cole. These proceedings involved discovery disputes and sanctions against the former client. Defaults against the trusts were ordered as well as a judgment for double the value of the property -- $340,000.

On appeal (and for the first time), the charitable trusts claimed that Judge Cole was required to recuse himself sua sponte because of a longstanding social relationship with a former judicial colleague (Judge Crowley) who was now at the law firm.

The court "reemphasize[d] that a party who is concerned about a judge's impartiality should tender its concerns to the court at the earliest possible moment."

Here, the charitable trusts had no done so.

Further, the court noted, there are only sixty active judges in Maine and only 3800 lawyers.

Collegiality between judges among themselves and with bar is not only permitted; it is encouraged:

At oral argument, counsel expressed surprise that judges will often have lunch together...

It is unavoidable, and indeed desirable, that judges who serve on the bench together will necessarily develop close professional relationships. We do not expect that such cordial relationships will end if a judge leaves the bench and returns to the practice of law. We are cognizant that the party status of the law firm in this instance makes this case  somewhat different from those where a former colleague is simply an advocate for a party before the court.

Judge Cole and Judge Crowley were not alleged to be related or to have financial entanglements.


 a friendship between colleagues or former colleagues that include such interactions [as lunch, golfing, hockey games or socializing at bar events] does not provide a basis for requiring recusal.

Nor do such contacts require disclosure.

The court also criticized counsel for injecting facts outside the record on appeal of the disqualification issue.

The court remanded for revised damages findings but rejected all other legal arguments raised by the charitable trusts. (Mike Frisch)

August 20, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Friday, August 8, 2014

Illegal Sentences Get Judge Censured

The New York Commission on Judicial Conduct has censured a town court justice who imposed sentences in excess of the legal limit in 791 matters.

His story

Respondent testified that he was "shocked" when he learned of the sentencing errors. He itnposed the fines and surcharges from melnory instead of relying on the resources available to him. He acknowledged that "too many mistakes" were made and attributed his errors to "oversight," "mental lapse," "not paying attention," "mis-memoriz[ing] the law," "being overloaded" and "judicial error." He believed that he devoted sufficient time to his judicial duties (about 20 hours a week), but testified that even if he had worked longer hours, "I probably still would have made some mistakes"; he stated, "It's impossible not to make a mistake." He noted that for several months during this 29-month period, he was also doing the work of his co-judge who was unavailable.

The commission also rejected the contention that the fault lay with staff

While respondent attributes many of these unlawful dispositions to the unauthorized actions of his staff, as a judge he bears full responsibility for his clerks' conduct. This is especially so where, as the referee found, the record shows that during this period respondent did "little to nothing" to supervise his clerks, such as reviewing fine notices before they were sent or providing internal controls or written policies or procedures relating to the processing of cases (Report, p 5). Indeed, not until June 2013 three years after being served with formal charges addressing the sentencing errors he attributed to his clerks did respondent prepare a written "Policy Statement" for his staff, describing the court's procedures for handling traffic cases and making it clear that the judge imposes all fines. In view of his ethical obligation to ensure that those subject to his direction and control follow the law and "adhere to the standards of fidelity and diligence that apply to the judge" (Rules, §100.3[C][2]), respondent is responsible for the sentences imposed by his court staff.

The commission also rejected the contentions that the defendants had an appellate remedy for the excessive sentences and that, in order to discipline him, his motives must have been "vile, improper or impure." (Mike Frisch)

August 8, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 6, 2014

Magistrate Sex

A former magistrate has been publicly reprimanded by the South Carolina Supreme Court.

The magistrate was the subject of criminal charges in two matters, both of which involved providing money and other benefits including his official actions in exchange for "sexual contact."

One of the relationships extended over a period of 13 years; the other for a decade.

The magistrate pleaded guilty to one count of Misconduct in Office and  was sentenced to a year in jail with all but 90 days stayed.

The court noted that the reprimand was the most severe sanction it could impose on a former magistrate. (Mike Frisch)

August 6, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, July 17, 2014

Split Ohio Supreme Court Indefinitely Suspends Convicted Judge

Kathleen Mahoney has this report on the web page of the Ohio Supreme Court

The Ohio Supreme Court today  indefinitely suspended the law license of Bridget M. McCafferty, formerly a  judge on the Cuyahoga County Court of Common Pleas.

In August 2011, McCafferty was  convicted on 10 counts of making false statements to federal law enforcement about  phone conversations she had with former Cuyahoga County Auditor Frank Russo and  local businessman Steve Pumper regarding cases in her courtroom. Federal  officials had intercepted more than 40,000 calls as part of a federal  investigation into countywide corruption.   After some counts were merged, the federal court sentenced McCafferty to  the maximum term of 14 months in prison with three years of supervised release,  150 hours of community service, and a $400 fine. Following her conviction, the  Supreme Court suspended McCafferty’s license to practice law on an interim  basis.

In a 4-3 decision today, the  court found that the former judge had violated multiple professional and  judicial conduct rules.

Justice William M. O’Neill, who  authored the court’s majority opinion, noted that McCafferty’s misuse of her  judicial position was not charged in the federal criminal complaint against the  judge, so that conduct was not part of the disciplinary case before the Supreme  Court.

In considering whether to disbar  McCafferty, Justice O’Neill explained that the Supreme Court has sometimes  determined that permanently prohibiting a judge from practicing law is  appropriate when the judge is convicted of a felony, but the court has not  always disbarred judges for dishonest conduct.

“Certainly McCafferty’s conduct  warrants a severe sanction,” Justice O’Neill wrote. “She was convicted on  multiple counts of lying to FBI agents about conversations with people who were  the subject of a county-wide corruption investigation. In addition, McCafferty  was deceptive about the nature of those conversations, most particularly that  those conversations included matters that had been before her in court.  Notwithstanding, the conduct that led to the criminal convictions and rule  violations occurred during a single impromptu conversation with FBI agents,  rather than as a pattern of premeditated criminal conduct. Thus, we agree with  the [Board of Commissioners on Grievances & Discipline] that imposition of  the system’s most severe sanction is not warranted in this case.”

“But we also do not believe that the  appropriate sanction is a fixed-term suspension,” he continued. “Despite  McCafferty’s cooperative attitude during the disciplinary proceedings, we are  troubled by the contradiction between McCafferty’s assertion that she accepts  full responsibility for her actions and her statement that she believed that  she had answered the agents’ questions as truthfully as she could. She clings  to this claim, despite its utter implausibility in the face of the recorded  conversations. Thus, we determine that an indefinite suspension without credit  for time served [under the interim suspension] is the appropriate sanction for  her misconduct.”

McCafferty’s interim suspension  will continue until she completes the terms of her federal sentence. Her  supervised release will end on September 17, 2015, as long as she commits no  parole violations. Her indefinite suspension from practicing law will begin  after she is discharged from the federal court.

The majority opinion was joined  by Justices Paul E. Pfeifer, Terrence O’Donnell, and Sharon L. Kennedy. Justice  Judith Ann Lanzinger dissented in an opinion joined by Chief Justice Maureen  O’Connor and Justice Judith L. French.

The dissenters would have  disbarred McCafferty.

“I do not see how the majority  can square a sanction of a mere indefinite suspension with its statements that  ‘[t]his court has stated that judges are held to the highest possible standard  of ethical conduct,’” Justice Lanzinger wrote. In her view, the case deserved  the full measure of the court’s disciplinary authority.

“The majority focuses solely on  McCafferty’s conversation with FBI agents and paints her conduct as a one-time,  brief lapse in judgment,” Justice Lanzinger continued. “This narrow  characterization is simply untrue; McCafferty’s misconduct was more prolonged  and more egregious than the majority admits. Months before she ever spoke to  the FBI, McCafferty was swaying judicial outcomes for political associates and  giving special consideration to high-ranking politicians. There can be no  dispute that this conduct occurred. McCafferty’s criminal indictment outlined  her involvement with [then-Cuyahoga County Commissioner James] Dimora and  Russo, and she stipulated, at her disciplinary hearing, to engaging in the  conduct described in the indictment.”

Two of McCafferty’s disciplinary  rule violations relate to her involvement with Russo and Dimora and the abuse  of her judicial office, so that misconduct is part of the case before the  court, Justice Lanzinger contended.

“If the primary purposes of  judicial discipline are to protect the public, guarantee the evenhanded  administration of justice, and to bolster public confidence in the institution,  then nothing short of disbarment should be imposed in this case,” she  concluded.

2013-0939. Ohio  State Bar Assn. v. McCafferty, Slip  Opinion No. 2014-Ohio-3075.

(Mike Frisch)

July 17, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)


The New York Court of Appeals has suspended the recently-indicted acting village justice of Waterloo.

The Finger Lake Times reported on the charges

Acting Village Justice Roger Barto is facing nine charges, five of which are felonies, related to a reported attack last summer authorities now say  he fabricated.                                                                                

The nine-count grand jury indictment was unsealed Monday afternoon in Seneca County Court. It charges Barto with felony counts of third-degree grand larceny, fourth-degree corrupting the government, third-degree insurance fraud, first-degree falsifying business records and defrauding the government.

Barto also has been charged with misdemeanor counts of third-degree falsely reporting an incident, official misconduct and petty larceny. The latter charge stems from Barto allegedly stealing gasoline in April while serving as sexton for the village cemetery.

The felony counts are related to an incident the night of Aug. 31, 2013, when Barto told police he was assaulted while locking up the village court following an arraignment. The court is in the village’s municipal building on West Main Street.

Barto told police he was approached from behind by one or two people, and that the assailant or assailants placed an object around his neck and hit him over the head with a toilet tank lid left outside the building due to renovations.

The suspension is with pay. (Mike Frisch)

July 17, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 16, 2014

Pennsylvania Judge Faces Misconduct Charges

The Pennsylvania Judicial Conduct Board has filed a lengthy complaint alleging misconduct by an Erie County Court of Common Pleas judge.

The complaint notes that the judge "engage[s] in many regional, national, and international educational, charitable and civic endeavors" but

In stark contrast to her record of non-judicial service, the judicial administrative authorities in Erie County have received numerous and consistent complaints regarding [the judge's] demeanor and concomitant behavior both on the bench and off the bench.

On bench, the judge is alleged to have been "impatient, intemperate, belittling, overly-critical, or disrespectful" to court employees, lawyers, litigants and witnesses.

Off bench, same allegations as to treatment of her personal staff.

The Pittsburgh Post-Gazette reports that the judge was first elected to office in 1989. Her attorney is quoted stating that the charges are "devoid of  merit." (Mike Frisch)

July 16, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 9, 2014

Driving Judge Oldfield

From the web page of the Ohio Supreme Court

The Ohio Supreme Court today  publicly reprimanded a judge serving on the Akron Municipal Court for her  conduct related to the 2012 arrest of a lawyer who practiced in her courtroom.

In the 5-2 decision, the court  determined that Judge Joy Malek Oldfield violated two judicial conduct rules  and one professional conduct rule, but rejected an argument from the  Disciplinary Counsel that Oldfield violated an additional judicial conduct  rule. The Disciplinary Counsel filed the complaint charging the judge.

In February 2012, Oldfield and  her husband attended an evening event that lasted into the next morning.  Oldfield’s husband asked Catherine Loya, the public defender assigned to the  judge’s courtroom, to drive Oldfield home, and he left.

The judge and Loya left the party  sometime after 1 a.m. and stopped in a shopping center parking lot. A police  officer pulled up and asked them for identification. Two more police officers  arrived soon after. When Loya refused to do field sobriety tests, she was  arrested and taken to the police station. Oldfield asked one of the officers to  take her to the station to be with Loya. During some of her interactions with the  police, Oldfield mentioned that she was a judge.

At the station, Loya’s driving  privileges were immediately suspended. An officer then drove both Loya and  Oldfield to the judge’s house. Loya stayed at Oldfield’s house for three nights  until she was permitted to drive again. For the next two weeks, Oldfield  presided over 53 cases in which Loya represented clients.

In today’s majority opinion,  Justice Sharon L. Kennedy wrote that the court agreed with the state  disciplinary board that the judge violated two judicial rules stating that  judges must act in ways that promote public confidence in the judiciary, avoid  impropriety and the appearance of impropriety, and disqualify themselves from  proceedings in which their impartiality might be questioned. The court also  determined that the judge engaged in conduct prejudicial to the administration  of justice.

Despite an objection from the  Disciplinary Counsel, the court also agreed with the board’s recommendation to  dismiss the alleged violation of Judicial Conduct Rule 1.3, which reads: “A judge shall not abuse the prestige of judicial office to advance the  personal or economic interests of the judge or others, or allow others to do so.”

“Our  review of the record supports the findings of the panel and the board,” Justice  Kennedy wrote. “[T]he [board’s] panel concluded that the evidence was  contradictory and that the record, taken as a whole, did not produce ‘a firm  conviction’ that Judge Oldfield used her judicial title to influence the  officers to accord her or Loya special treatment or that her conduct gave the  appearance that she was using her title for that purpose. We find that the  panel reviewed the record using an objective standard to determine whether  Judge Oldfield’s conduct created an appearance of impropriety, i.e., whether  her behavior would create, in reasonable minds, a perception that she was  improperly using her position to gain favor. We therefore overrule [the  Disciplinary Counsel’s] objections ….”

In  determining the appropriate sanction, the court considered Oldfield’s failure  to disqualify herself from more than 50 cases in which Loya was representing  defendants to be an aggravating factor. But the court also noted the judge’s  lack of any prior disciplinary record, her open disclosure and cooperative  attitude in the disciplinary hearings, and her good character and reputation.  Based on these circumstances, Oldfield’s conduct, and court precedent, the  majority ruled to publicly reprimand the judge.

Joining Justice Kennedy’s opinion  were Justices Paul E. Pfeifer, Terrence O’Donnell, Judith L. French, and  William M. O’Neill. Chief Justice Maureen O’Connor dissented in part in an  opinion joined by Justice Judith Ann Lanzinger.

In her opinion, Chief Justice  O’Connor agreed with the majority that Oldfield violated two judicial rules and  one professional conduct rule and concurred in the sanction. However, the chief  justice dissented from the dismissal of Jud.Cond.R. 1.3.

“Importantly,  Judge Oldfield’s first mention of her status as a judge to the officers was  gratuitous and, contrary to the majority’s characterization, more than a mere  ‘remark[],’” she wrote. “During the arrest, Officer Garner asked a ‘yes or no’  question — whether Judge Oldfield was a lawyer. Judge Oldfield testified that  she responded, ‘Yeah, actually, I’ve been an attorney for some time and now I’m  a judge.’ Judge Oldfield acknowledged that she could have responded truthfully  in a number of alternative ways, including by offering simply that she was  licensed to practice law. The specific mention of her judgeship in response was  not solicited or required, nor should it have been offered. Indeed, it served  only one purpose: to make sure that the officer knew that she was a judge.”

In  addition, the judge continued to insert herself into Loya’s arrest and booking  at the police station, Justice O’Connor noted.

“I find that the evidence  as a whole establishes that a reasonable person would believe that Judge  Oldfield abused the prestige of her office to advance her and Loya’s interests,”  she concluded. “Therefore, I would sustain [the Disciplinary Counsel’s] objection  to the board’s dismissal of the Jud.Cond.R. 1.3 allegation and would find that  Judge Oldfield violated the rule.”

2013-1623. Disciplinary  Counsel v. Oldfield, Slip  Opinion No. 2014-Ohio-2963.

The Akron Beacon Journal had this earlier story, which reports that the police found the judge and public defender in the backseat of the car and that both were "partially clothed and smelled of alcohol."

Scene and Heard had this report. (Mike Frisch)

July 9, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Apparent Conflict

A recent judicial ethics opinion from South Carolina

  OPINION NO. 10 - 2014

RE: Propriety  of an appellate court judge presiding over matters in which the judge’s law  clerk’s parent is counsel of record or another attorney from the parent’s  agency is attorney of record.


An  appellate court judge has hired a law clerk whose parent is an attorney for an  agency that frequently has cases before the court. The judge inquires as to  whether the judge can preside over matters in which the clerk’s parent: 1) is  an attorney of record but does not physically appear before the court and does  not sign any filings for a particular case; 2) an attorney from the same office  as the clerk’s parent signs all pleadings and makes a physical appearance but  the clerk’s parent is not an attorney of record.  


An appellate court judge may not  preside over cases where the parent of the judge’s clerk is an attorney of  record, appears on the pleadings, or makes any appearance in the case.  Where another attorney from the parent’s  agency is attorney of record, the judge’s law clerk is disqualified from any  involvement in the case, but the judge is not disqualified. 


    Canon  3.E.(1)(d) states that a judge should disqualify himself or herself where the  judge’s  impartiality might reasonably be  questioned.  In addition, Canons 1 and 2  of the Code of Judicial Conduct require a judge to avoid the appearance of  impropriety and act in a manner to promote the public’s confidence in the  integrity and impartiality of the judiciary.
  When the parent of a judge’s law  clerk is an attorney of record and appears on the pleadings in the case, or  makes any appearance in the case, the judge is disqualified.  In matters in which another attorney from the  same agency as the parent is the attorney of record and the parent makes no  appearance, the law clerk is disqualified under Rule 506, SCACR, Canon 3E(4),  which states that law clerk shall disqualify himself in matters in which he is  related by blood or marriage to an attorney in a proceeding.  Furthermore, the law clerk should be shielded  from any part of the case by what is commonly known as a “Chinese Wall.”  However, the disqualification of the law  clerk does not extend to the judge.  In  addition, while the judge is not required to disclose that the judge’s law  clerk has a parent who works for the same agency as attorney appearing as  counsel of record, it would be wise to do so. 

(Mike Frisch)

July 9, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, June 26, 2014

A Fine Line

The Florida Supreme Court has reprimanded and fined a judge for campaign violations.

The judge purchased a table at a Republican Party event, left out "for" prior to the office she sought in campaign material (which is required of non-incumbants) and accepted funds fron her spouse.

Justice Lewis in dissent decried the use of large fines as a sanction

While I recognize that this Court has the authority to impose fines for ethical violations committed by judges and judicial candidates, I continue to oppose the utilization of large fines to punish serious violations of the Code of Judicial Conduct. See In re Pando, 903 So. 2d 902, 904-05 (Fla. 2005) (Lewis, J., specially concurring); In re Kinsey, 842 So. 2d 77, 99 (Fla. 2003) (Lewis, J., concurring in part, dissenting in part). Faith and confidence in our judicial system is rooted in the ability to rely upon the integrity and independence of our judges. That confidence is severely undermined when an ethical transgression of a judge or judicial candidate is so severe that it justifies the imposition of a fine of this magnitude.

(Mike Frisch)

June 26, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Judge Removal From Office Upheld

 The New York Court of Appeals has upheld an order removing a surrogate's court judge from office.

The judge had presided over matters involving a very close friend (and former judge) as well as a matter in which her personal attorney was counsel.

The judge claimed that the matters were uncontested and thus no harm, no foul.

The court

The Rules Governing Judicial Conduct create no distinction between contested and uncontested/ministerial matters. The perception that these attorneys were in a position to be accorded preferential treatment is based on their relationships to the judge, not the type of proceedings. As the Commission pointed out, assuming that petitioner actually believed recusal was unnecessary under existing precedent and that there could be no appearance of impropriety or favoritism in her presiding over the matters involving these three individuals, her behavior reflects "exceedingly poor judgment and an inability to recognize impropriety."

A dissent notes the judge's "remarkable" career and would impose censure

Judge Doyle's tenure is remarkable. She served for 20 years as Chief Clerk of the Albany County Surrogate's Court. She was an Adjunct Professor of Law at Albany Law School teaching courses on trusts and estates and Surrogate Court procedure. She has been a frequent lecturer for the New York State Bar Association, Surrogate Judges Association and the Office of Court Administration. She also served as an Acting Supreme Court Justice by designation of the Office of Court Administration. The voters of Albany County elected her Surrogate twice.

Judge Doyle was first elected Surrogate in 2000 and reelected in 2010. She presided over a Court that has processed over 3,500 cases annually. The charges here are few and minor and involve only an "appearance of impropriety" and concededly involved no impropriety in fact.

The judge had previously been censured for giving misleading and evasive testimony. 

The determination of the Commission on Judicial Conduct is linked here. (Mike Frisch)

June 26, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, June 23, 2014

Dead Wrong

The Florida Judicial Ethics Advisory Committee opines


May a judge who  is a candidate for re-election use in the judge’s campaign literature and  electronic media a picture of the judge being sworn in at the judge’s  investiture by a now deceased former judge?



Regardless of whether the judge in the  photograph is deceased or alive, it appears the use of this photograph could  “imply” to the voting public that the judge pictured with the candidate judge previously  endorsed or would have endorsed the candidate judge.  It must be recognized that the  audience to whom the campaign materials are directed may or may not realize the  pictured judge is deceased, but this realization arguably does not change the  outcome of the inquiry.  For example, if  the voting public knows the judge pictured with the candidate judge is  deceased, the picture still potentially implies the deceased judge previously endorsed  or would have endorsed the candidate judge.   If the voting public does not know the judge pictured is deceased, the  picture potentially implies the pictured judge endorses the candidate  judge.  These implications, and potential  misrepresentations, are the very type of conduct addressed in Fla. JEAC Op.  10-18 and prohibited by Canon 7A(3)(e)(ii).

Therefore, given this Committee’s prior  opinions prohibiting the use of photographs depicting other judges, both in  campaign literature and on any website, and given candidates have an obligation  under Canon 7A(3)(e)(ii) to not knowingly misrepresent a fact concerning their  candidacy, and given that use of the photograph in question could imply and  give to the voting public the perception of endorsement of the inquiring candidate  judge by the deceased judge pictured in the photograph, the Committee believes  the inquiring judge should avoid use of the photograph in question in the  judge’s campaign materials and electronic media.

(Mike Frisch)

June 23, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)