Wednesday, December 28, 2016

Out On Strikes

A new opinion from the Florida Judicial Ethics Advisory Committee

Opinion Number: 2016-22
Date of Issue: December 12, 2016


Whether a senior judge may work part time for an insurance adjusting company as an insurance umpire in any circuit in which the senior judge may preside.



The inquiring judge will be taking senior judge status in January of 2017, and is considering part time employment with an insurance adjusting company as an “insurance umpire.”  The inquiring judge states that the office the judge would work for is located in one county, but performs work in many other counties, and specifically asks whether it is permissible to work as an insurance umpire in any county in which the inquiring judge serves as a senior judge.


Senior judges subject to recall must comply with all provisions of the Code of Judicial Conduct, with limited exceptions. See Fla. Code Jud. Conduct, Application (stating that a senior judge “shall comply with all the provisions of this Code except Sections 5C(2), 5E, 5F(1), and 6A”); Fla. JEAC Op. 06-02. To that end, Florida Code of Judicial Conduct, Canon 5G provides that “[a] judge shall not practice law,” and Canon 5D(3) states that a judge “shall not serve as an officer, director, manager, general partner, advisor or employee of any business entity.”  Indeed, the restrictions contained in Canon 5D(3) are “one of the few per se proscriptions on lawful off-the-bench activities to be found in the Code.”  Fla. JEAC Op. 97-35. See also Fla. JEAC Op. 16-12.

Subject to clear restrictions and disclosure requirements, the Code does permit senior judges to engage in certain dual service roles, such as mediator, arbitrator, or voluntary trial resolution judge. Although the Florida Statutes do not contain a definition for “insurance umpire,” an umpire is sometimes judicially appointed and other times appointed by appraisers pursuant to the terms of an insurance policy during the appraisal process of a property insurance dispute. Unless the role of insurance umpire is sufficiently equivalent to that of a certified mediator, arbitrator, or voluntary trial resolution judge, employment would be prohibited by the Code and the inquiring judge may not engage in part time employment as an insurance umpire.

As noted, the Code permits senior judges to engage in certain dual services, in the role of mediator, arbitrator, and voluntary trial resolution judge, outside of any circuit in which the senior judge serves as a senior judge. See Fla. Code Jud. Conduct, Canon 5F(2); Fla. JEAC Op. 15-15. Even if the role of insurance umpire was substantially similar to those permitted dual service roles, the inquiring senior judge would be subject to the same restrictions and disclosure requirements set forth in the Code. Among other restrictions, senior judges providing a dual service, such as mediation, through an entity may only be associated with entities that are solely engaged in offering mediation or other alternative dispute resolution services. Fla. Code Jud. Conduct, Canon 5F(2). Here, the inquiring judge anticipates providing the insurance umpire services while affiliated with a company that describes itself as an all-line insurance adjusting service company that offers services such as claims adjusting, appraisals, scene investigations, umpire services, and mediation. Because that entity is not solely engaged in offering alternative dispute resolution services, the senior judge may not be affiliated with that company while providing any dual services if also serving as a senior judge.

Regardless of entity affiliation, a senior judge is prohibited from providing any dual services within any circuit in which the senior judge serves as a senior judge. In Opinion 16-18, we concluded that a senior judge serving as a court appointed, litigant-paid special master would be subject to the same geographical restriction. “A senior judge shall disclose if the judge is being utilized or has been utilized as a mediator, arbitrator, or voluntary trial resolution judge by any party, attorney, or law firm involved in the case pending before the senior judge.”  Fla. Code Jud. Conduct, Canon 5F(2). The senior judge must also disclose if there have been any negotiations or agreements between the judge and any of those same parties or attorneys for any such dual services. Furthermore, absent express consent from all parties, for a period of three years, a senior judge cannot preside over any case involving any attorney, party, or law firm that is utilizing or has utilized the judge as a mediator, arbitrator or voluntary trial resolution judge. Id.

For the reasons set forth above, we conclude that the inquiring judge must not serve as a senior judge and as an insurance umpire affiliated with an entity as described above. Nor does the information provided to us here indicate that serving as an insurance umpire is necessarily the equivalent of serving as a mediator, arbitrator, voluntary trial resolution judge, or litigant-paid special master; therefore, we find that it would not be permitted under the guidelines set forth in Canon 5F(2) for permissible several dual service roles.

(Mike Frisch)

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

Thursday, December 22, 2016

Florida Judges May Attend Inauguration

An opinion from the Florida Judicial Ethics Advisory Committee


1. May a judge attend the 2017 Presidential Inauguration?

ANSWER: Yes, as long as no funds are paid to a partisan political organization.

2. May a judge attend the Florida Inaugural Ball being hosted by the Florida State Society?

ANSWER: Yes, as long as no funds are paid to a partisan political organization and attendance is not limited to members of one partisan political party.

The Committee believes that mere attendance at any particular presidential inauguration does not violate Canon 7. Attendance at a presidential inauguration does not amount to a public endorsement or an implicit statement of support for a candidate for public office or a particular political party. Nor does it constitute attendance at a political party function. Rather, a presidential inauguration is open to members of all political persuasions; it is a national celebration for the entire country. See Fla.JEAC Op. 12-03 n.3. Indeed, it is implicit in the intended peaceful transition of power in this country that citizens of all political persuasions accept the election of the prevailing candidate. Celebration of the election of any presidential candidate should not therefore be deemed to be inappropriate political activity, even after a campaign season marked by robust and divisive partisan political activity.

In making arrangements for and attending the inauguration, however, the judge should be careful not to otherwise violate Canon 7 or any other provision of the Code. For example, the judge may not make payments to a political organization in order to obtain premium seating at the inauguration. Simply put, the judge must at all times avoid inappropriate political activity or the appearance of impropriety, and shall uphold the integrity and independence of the judiciary. Fla. Code. Jud. Conduct, Canons 1, 2, and 7.

With respect to attendance at the Florida Inaugural Ball, the same prohibitions apply. The judge states that the Florida Inaugural Ball is being hosted by the Florida State Society. The Committee has no reason to believe that the Florida State Society is a partisan political organization or that the Florida Inaugural Ball is a political party function. Ultimately however, it is the responsibility of the judge to make reasonable and sufficient inquiry to assure that any payment being made, either by the judge or on the judge’s behalf, to attend the Florida Inaugural Ball involves no funds being paid to a partisan political organization, and that attendance at the Ball is not limited to members of one partisan political party.

(Mike Frisch)

December 22, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, December 21, 2016

Hot Stove League

The Herald-Tribune (Elizabeth Johnson) reports

Formal complaints are being filed against a former circuit judge and an attorney in Manatee County after The Florida Bar found probable cause of misconduct. The cases will be filed with the state's Supreme Court for additional review and disciplinary proceedings.

John Lakin retired from the bench in March after self-reporting that he had accepted baseball tickets from attorneys appearing in his courtroom. He'd served as a judge for three years and considered that "the highlight of my 26-year legal career," Lakin stated in his retirement letter to Gov. Rick Scott.

 Lakin accepted Tampa Bay Rays tickets from several attorneys, including Melton Little, of the Kallins, Little, Delgado firm in Palmetto.

A day after requesting and getting tickets from Little's firm, Lakin overturned a jury's verdict that had ruled in favor of Walmart and against Little's client in a slip-and-fall case. Lakin later accepted more tickets while Walmart appealed his order for a new trial.

Lakin told Chief Judge Charles Williams in October 2015 that he had accepted the gift. Williams advised Lakin to report that information to the Judicial Qualifications Commission, which launched an ethics probe.

The JQC stopped pursuing the case when Lakin stepped down from office, but said it would revisit the issue if he attempted to return to the bench.

Lakin's attorney, Jack Weiss, previously attributed Lakin's actions to "a serious lapse of judgment."

The Florida Bar continued its review.

A grievance committee found that probable cause of misconduct by Lakin and Little, including violating rules of professional conduct and engaging in actions prejudicial to the administration of justice. In addition, probable cause was found that Little disrupted impartiality and decorum of court proceedings.

 The grievance committee met in September, but letters of notice were sent Tuesday to attorneys representing Lakin and Little.

A letter of advice was sent to Gregory Hagopian, an attorney who also gave Lakin baseball tickets. While the grievance committee stated it does not condone Hagopian's actions, it acknowledged that Hagopian gave Lakin the tickets because of their friendship and not to influence his courtroom decisions. Hagopian completed ethics training and was advised by the grievance committee to avoid acts that may appear to show impropriety.

The Florida Bar previously dismissed a complaint filed against Bradenton attorney Ed Sobel, also relating to baseball tickets. Sobel provided documentation showing that Lakin paid fair market value for the tickets and a parking pass.

Discipline by the Florida Supreme Court can range from a reprimand to revocation of the license needed to practice law in the state.

(Mike Frisch)

December 21, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Eddie From Ohio

A stayed suspension of one year was imposed on a Massillon judge by the Ohio Supreme Court.

It was not his first rodeo

In October 2012, we found that he violated the Code of Judicial Conduct and the Rules of Professional Conduct for, among other things, unnecessarily injecting himself into an internal police-department investigation, using vulgar and intemperate language toward a probationer in his courtroom, and conducting that individual’s probation review without the presence of his counsel or the prosecutor. Disciplinary Counsel v. Elum, 133 Ohio St.3d 500, 2012-Ohio-4700, 979 N.E.2d 289. We sanctioned Judge Elum with a stayed six-month suspension for this misconduct. 

Charges here were filed in November 2015

On May 11, 2015, Antonio Pettis approached Judge Elum in the Massillon Municipal Court parking lot and requested the judge’s legal assistance regarding a dispute with his landlord, Susan Beatty. Pettis told Judge Elum that although he had money to pay his rent, Beatty would not accept it. Judge Elum recognized Pettis because the day before, the judge’s wife, a former school teacher, had invited Pettis into the judge’s home to assist him with a scholarship application. In the parking lot, Judge Elum agreed to help Pettis and took him into his chambers.

Judge Elum then called Beatty and, according to the judge, identified himself as “Eddie Elum from the Massillon Court.” Judge Elum urged Beatty to accept Pettis’s late rent payment. After Beatty told the judge that Pettis had violated his lease and that she had already given him a three-day notice to vacate, the judge proceeded to discuss with Beatty the amount of Pettis’s security deposit and inquired whether she would give him two additional days to remove his belongings from the property. During the nine-minute phone call, Judge Elum openly, and within Beatty’s hearing, consulted with Pettis. At one point, Beatty told Judge Elum that she may have already changed the locks on the property, and the judge responded that she could not do that without a writ of restitution. The judge also asked that she have her lawyer contact him. 

Pettis moved out of the rental property the following day, and according to Beatty, he left furniture and trash on the lawn, which required her to rent a dumpster. Judge Elum later called Beatty on two occasions—purportedly to inquire whether the matter was resolved and to inform her that he had not heard from her lawyer. Beatty, however, did not return the judge’s phone calls. Beatty was surprised and intimidated by Judge Elum’s initial phone call and felt bullied in light of the fact that he was a judge. She later filed the grievance that initiated this disciplinary action.

Since then, Judge Elum has admitted that calling Beatty was a mistake, that he should not have injected himself into a dispute that was not on his docket, and that he was not an appropriate person to mediate the disagreement between Pettis and Beatty. At his disciplinary hearing, the judge also testified that he understood how Beatty could have perceived his phone call as advocating on behalf of Pettis and against her. The judge stated:

As a lawyer, I have been trained to resolve disputes. As a judge, I know I’ve got to step back and can’t get involved. Unfortunately, I let my heart do my thinking for me. And I went and tried to put two people together to resolve a rental dispute that got way out of hand because there was a lot of facts that I was not privy to. And I got myself in quicksand and I made a terrible mistake. 


Having considered Judge Elum’s ethical infractions, the aggravating and mitigating factors, and the sanctions imposed in comparable cases, we adopt the board’s recommended sanction. Judge Edward Joseph Elum is hereby suspended from the practice of law for one year, with the entire suspension stayed on the condition that he commit no further misconduct. If Judge Elum fails to comply with this condition, the stay will be lifted and he shall serve the entire oneyear suspension. Costs are taxed to Judge Elum.

The earlier disciplinary case - with its colorful language recited in full - is linked here. (Mike Frisch)

December 21, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, December 17, 2016

OK To Serve Food And Beverages But Not To Serve On Host Committee

The Florida Judicial Ethics Advisory Committee has an opinion

Opinion Number: 2016-20
Date of Issue: November 28, 2016


1. May the inquiring judge serve on a local bar association committee formed to host a golf tournament, which is a fundraising event for the Guardian Ad Litem Foundation, an entity that appears in every dependency case coming before the judge?


2. May the inquiring judge attend the golf tournament and assist with organizational tasks such as setting up the silent auction, serving food and beverages, setting up hole sponsor signs, taking pictures, and other non-fundraising tasks?



Canon 5A(1) requires that a judge conduct all extra-judicial activities so that they do not “cast reasonable doubt on the judge’s capacity to act impartially as a judge.”  Canon 5C(3) permits a judge to serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, sororal or civic organization not conducted for profit, subject to the limitations and the other requirements of the Code of Judicial Conduct.” However, Canon 5C(3)(a) provides that “[a] judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization (i) will be engaged in proceedings that would ordinarily come before the judge, or (ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.”

Service on the committee charged with the responsibility of raising funds for an entity that appears in every dependency case coming before the inquiring judge “casts reasonable doubt on the judge’s capacity to act impartially as a judge” as prohibited by Canon 5A(1), even if the inquiring judge is engaged in non-fundraising activities as a member of the committee.

Mere attendance at a fundraising event does not violate the Canons. Specifically, Canon 5C(3)(b) permits the inquiring judge to attend the golf tournament and assist with organizational tasks such as setting up the silent auction, serving food and beverages, setting up hole sponsor signs, taking pictures, and other non-fundraising tasks.

Play on! (Mike Frisch)

December 17, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, December 5, 2016

A Question Of Authority In Judicial Ethics Opinions

The Georgia Supreme Court has ordered reconsideration of an opinion of the Judicial Qualifications Commission that deals with excluding children from a courtroom and the ability of security personnel to inquire of court visitors

On August 28, 2013, the Judicial Qualifications Commission rendered Formal Advisory Opinion No. 239, which concerns Canon 2 (A) of the former Code of Judicial Conduct. In pertinent part, Canon 2 (A) provides that “[j]udges shall respect and comply with the law,” and Opinion No. 239 concerns the obligation of judges to respect and comply with the constitutional guarantee of the right of public access to judicial proceedings. Concerned that Opinion No. 239 reflects some misunderstandings about the scope of that right and the extent to which it is clear and settled in the decisional law, the Council of State Court Judges asked the Commission to reconsider portions of Opinion No. 239. The Commission, however, declined to reconsider, and so, on July 10, 2015, the Council filed a petition with this Court, seeking a review of Opinion No. 239. In its response to the petition, the Commission conceded our authority to review its formal advisory opinions, but the Commission urged us to deny review of Opinion No. 239 on the merits.

On September 8, 2015, we granted the petition for review, and we directed the Commission and the Council to file briefs addressing the extent to which Opinion No. 239 rests upon clear and settled principles of constitutional law. The Commission and the Council filed briefs, but the Commission also filed a motion to dismiss, repudiating its earlier position, and contending for the first time that this Court is without authority to review the Commission’s formal advisory opinions. We heard oral argument on November 2, 2015. Having carefully considered the arguments of the Commission and the Council, we now conclude that this Court has authority to review formal advisory opinions rendered by the Commission, and we conclude as well that Opinion No. 239 reflects some misunderstandings about the extent to which the scope of the right of public access to judicial proceedings is clear and settled in the decisional law. Accordingly, pursuant to JQC Rule 22 (b), we direct the Commission to reconsider Opinion No. 239 consistent with the opinion of this Court.

Holding on authority

Our authority to review formal advisory opinions rendered by the Commission is necessarily implied by JQC Rule 22, and to the extent that JQC Rule 22 itself is constitutional — it is, and the Commission concedes that it is — our exercise of that implied authority in no way impairs the constitutional prerogative of the Commission to discipline judges. This Court has the authority to review Opinion No. 239 upon the petition of the Council, and the motion of the Commission to dismiss this matter is denied.

On the merits

To the extent, however, that Opinion No. 239 endeavors to extrapolate broader principles of law from these precedents, it raises the worrisome prospect that the Commission has wandered into a field of law that is unclear and unsettled, something that is beyond its purview. The Council contends that the Commission has done exactly that by its identification of certain acts and practices as constitutionally intolerable...

The Council asserts that the law is not clear and settled that the constitutional guarantee of the right of public access extends to children, and the Council likewise contends that the law is not clear and settled that inquiries by security personnel amount to a closure in violation of the constitutional guarantee. With respect to these aspects of Opinion No. 239, we agree that the Commission has gone beyond a mere interpretation of Canon 2 (A) and has wandered into unclear and unsettled areas of constitutional law.

According to Opinion No. 239, a practice of excluding children as a class from judicial proceedings is unconstitutional. We note, however, that none of the precedents cited in Opinion No. 239 concerns the admission of children of tender years to a courtroom, and whether children are constitutionally entitled to the same extent as adults to attend court seems to be an open and debatable question...

Given the current state of the law, fair-minded jurists may reasonably disagree about the extent to which the constitutional guarantee of the right of public access to judicial proceedings requires the admittance of children of tender years, and decisions to admit or exclude children do not, without more, implicate Canon 2 (A).


Opinion No. 239 says that it is unconstitutional for court staff or security personnel to inquire of a courthouse visitor about the reasons for his visit. The law, however, is not clear and settled on this point. Certainly, a court has an obligation “to take reasonable measures to accommodate public attendance” at least with respect to the public’s right to attend criminal trials...

Neither this Court nor the United States Supreme Court has decided that no questions ever may be asked of persons seeking admittance to the courthouse or a courtroom, and we note that a number of federal courts have held that requiring such persons to produce photo identification prior to their admittance does not violate the constitutional guarantee of the right of public access...So long as court staff and security personnel understand that a member of the public is entitled to attend court whether or not he has a case pending therein, no clear and settled law prohibits court staff and security personnel from inquiring of persons seeking admittance about what has brought them to the courthouse.

In an apparent effort to limit its scope, Opinion No. 239 says that the practices that it identifies as unconstitutional are only “generally” improper. That offers little comfort, however, to judges who must address these issues every day. If a judge were to carefully consider the law and honestly determine that she ought to do what the Commission has deemed constitutionally intolerable, she then would have to choose between following the law as she understands it or yielding to the contrary understanding of the Commission. In those circumstances, following the law as she understands it would expose the judge to disciplinary proceedings, even if those proceedings ultimately would vindicate the judge. To permit the Commission to put a judge in that position would compromise the independence of the judiciary. Until it is clear and settled in the decisional law whether and to what extent the practices at issue are unconstitutional, it is not for the Commission to opine about what the Constitution means. Accordingly, we direct the Commission to reconsider Opinion No. 239 consistent with the opinion of this Court.

(Mike Frisch)

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

Thursday, November 17, 2016

Facebooking Judge Suspended

A judge's Facebook proclivity has led to a six-month suspension by the South Carolina Supreme Court.

An estate was opened in Oconee County for the estate of Z.H. Z.H.'s parents had filed a wrongful death suit on behalf of the estate against the Seneca Police Department. The case was settled with the family for the sum of $2,150,000. Due to the public nature of the case, the settlement received extensive press coverage. 

Despite the matter being before the probate court for administration of the estate, respondent expressed his opinion about the settlement on Facebook posting: "In the end it's all about the money. Always. Unfortunately, I see it EVERYDAY." Respondent later added: "Once ck is in hand, they'll disappear."

A review of respondent's Facebook account revealed that he has made extensive political posts, including ones in which he appears to endorse the presidential candidacy of one candidate. A review of respondent's Facebook account further revealed a post in which he engaged in fundraising for a local church. Respondent's Facebook account identifies himself as the probate court judge for Oconee County and the account, along with all of respondent's posts, were accessible to all members of Facebook.

Respondent greatly regrets his conduct with regard to the estate of Z.H. matter and is sorry for any distress that it may have caused Z.H.'s family. Respondent recognizes that, while he did not mention the estate of Z.H. by name on Facebook, it was inappropriate for him to make the statements as it would be clear in the community to what he was referring. Respondent also recognizes that it was inappropriate for him to make political posts and to post information about a fundraiser for a local church.

Respondent has now removed reference to himself as a judge on his Facebook page. He submits that he is deeply embarrassed about the matter and seeks to assure the Court that, in the future, he will not make reference to anything involving his court and will refrain from making political posts or posting fundraising information on Facebook or any other social media. Respondent is extremely proud of the Oconee County Probate Court and wants to assure the Supreme Court that he will do nothing further that could damage the reputation of the probate court.


We find respondent's misconduct warrants a six (6) month suspension from judicial duties, retroactive to April 12, 2016, the date of his interim suspension. We therefore accept the Agreement for Discipline by Consent and suspend respondent from office for six (6) months.

(Mike Frisch)

November 17, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, November 13, 2016

Facebook And Judicial Ethics

A recent decision of the Texas State Commission on Judicial Conduct orders a reprimand and education requirements of a justice of the peace.

Two of the counts involve misconduct in cases in which the judge presided. 

The third charge is more interesting

Judge Uresti has a public Facebook page that identifies her as: “Yolanda Acuna Uresti – Judge Elect for JP Pct. 4 Pl. 2.”

The page includes her photo and identifies her as a “politician.”

Judge Uresti has not utilized available privacy settings that would prevent members of the public from accessing and viewing her Facebook page.

On June 4, 2014 and July 1, 2014, while a candidate for judicial office, Judge Uresti’s Facebook page included links, photos, and posts promoting the real estate business of Jennifer Uresti, the judge’s daughter-in-law.

On March 3, 2014, while a candidate for judicial office, Judge Uresti’s Facebook page included a link, photo, and post promoting a former judge’s business as a wedding officiate.

In her written responses to the Commission’s inquiry, Judge Uresti acknowledged that she had a Facebook page, but denied that she was identified on that page as a “politician,” despite the fact that her Facebook page expressly included the description of her as a “politician.”

Further, Judge Uresti denied responsibility for the Facebook posts promoting the businesses of Jennifer Uresti and the former judge, claiming the posts were “illegal,” “unauthorized,” and the result of someone “hack[ing]” her Facebook page.

According to Judge Uresti, none of the posts promoting these businesses were ever accessible to the general public.

Although Judge Uresti claimed to have deleted her Facebook account, as of the date of this sanction it remains accessible.

When asked if she reported the “hacking” of her Facebook account to the appropriate authorities, Judge Uresti stated that she had not.

Judges and Facebook

With regard to the Facebook posts that promoted the financial interests of her relative and a former judge, the Commission notes that at the time of the original posts, Judge Uresti was a judicial candidate and not yet a judge. While the Commission does not have jurisdiction over the pre-bench conduct of a judicial candidate, Judge Uresti’s failure to remove the posts from her public Facebook page after she assumed the bench in 2015, and the fact that these posts continue to be visible to the public sixteen months into her term as judge, even after the Commission brought the concerns to the judge’s attention, constitutes a continuing violation of the canons. Viewers of Judge Uresti’s public Facebook page would continue to perceive that Judge Uresti has lent the prestige of her judicial position to advance the private financial interests of these individuals and has conveyed or permitted others to convey the impression that they were in a special position to influence the judge.


In condemnation of the conduct described above that violated Canons 2A, 2B, and 3B(2) of the Texas Code of Judicial Conduct, and Article V, §1-a(6)A of the Texas Constitution, it is the Commission’s decision to issue a PUBLIC REPRIMAND AND ORDER OF ADDITIONAL EDUCATION to the Honorable Yolanda Uresti, Justice of the Peace, Precinct 4, Place 2, San Antonio, Bexar County, Texas.

Pursuant to this Order, Judge Uresti must obtain eighty (80) hours of instruction by repeating the curriculum provided by the Texas Justice Court Training Center for new judges, in addition to her required judicial education for Fiscal Year 2017. Such training may be obtained at the judge’s own expense or at the expense of Bexar County if so approved.

Judge Uresti shall complete the additional eighty (80) hours of instruction by May 1, 2017. It is Judge Uresti’s responsibility to contact the Texas Justice Court Training Center and schedule her attendance at each of the programs designated for new judges, starting with the Stage I seminar scheduled for December 11-15, 2016, in Austin, Texas.

Upon the completion of the eighty (80) hours of instruction described herein, Judge Uresti shall provide the Commission with a certificate of completion from the Texas Justice Court Training Center, along with the completed Respondent Judge Survey indicating compliance with this Order. Failure to complete, or report the completion of, the required additional education in a timely manner may result in further Commission action.

Pursuant to the authority contained in Article V, §1-a(8) of the Texas Constitution, it is ordered that the actions described above be made the subject of a PUBLIC REPRIMAND AND ORDER OF ADDITIONAL EDUCATION by the Commission.

Failure to cooperate with the investigation was treated as an aggravating factor. (Mike Frisch)

November 13, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, November 10, 2016

Lies From The Pit Of Hell

The Florida Supreme Court has approved sanctions against a judge

In this case, we review the Findings and Recommendations of the Florida Judicial Qualifications Commission (JQC). The JQC recommends that Judge John P. Contini receive the sanction of a public reprimand plus the conditions that he hand deliver a written apology letter, continue active judicial mentoring for three years, set up and complete a stress management program, and be assessed the costs of these proceedings. We have jurisdiction. See art. V, § 12, Fla. Const. For the reasons that follow, we approve the JQC’s findings and recommended discipline.

The judge assumed office in January 20155

the[] violations manifested themselves threefold: (1) sending an ex parte e-mail to the Broward Public Defenders Office; (2) failing to seek a recusal or transfer when an appeal effectively froze his division; and (3) making impertinent and belittling remarks in open court about a pending matter.

The ex parte email was sent while the judge was attending judicial college. As a result

...on April 9, 2015, the State, through the Attorney General’s Office, petitioned the Fourth District Court of Appeal for a writ of prohibition seeking to disqualify Judge Contini from a list of 962 cases. On June 10, 2015, the Fourth District issued an order to show cause concerning the writ, which stayed further proceedings in the cases to which it applied. Although there was no formal stay in effect until the show cause order was issued, all parties acted as though a stay was in effect between March 26 and June 10. Judge Contini’s division—the criminal division—was essentially frozen, yet he neither recused himself sua sponte nor sought an administrative transfer. Instead, he remained within the division hoping for personal vindication.

While the judicial conduct charges relating to the email were pending

It appears that Judge Contini became increasingly frustrated until he lost his temper in open court during August 11 and 12, 2015, hearings. In one instance, he said, “And if a prosecutor, someone with the AG’s office, wants to put that person’s case on their disingenuous list of cases that are pending sentencing, that’s  a lie from the pit of hell, and that is a fraud on the Fourth [District].” He wished that the Fourth District would “spank the person who put [a case on the] disingenuous list” and “ream out the idiot who put [that case] on the list.” The assistant attorney general who signed the initial list, Heidi Bettendorf, was not present. However, Judge Contini chastised her by name for “misleading” and committing “fraud on the Fourth [District].” In another instance, Judge Contini threatened a state attorney with contempt while raising his voice and accusing him of inappropriate behavior. Judge Contini demanded that the state attorney admit to assisting Bettendorf with the creation of the list and ordered bailiffs to escort the attorney from the courtroom after the exchange.

The judge must appear before the court to be reprimanded. (Mike Frisch)

November 10, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, November 5, 2016

Is A Judicial Reprimand Reviewable?

The Maryland Court of Appeals heard oral argument last week on an interesting issue relating to judicial discipline - whether the Court has review authority of a reprimand issued by the Commission on Judicial Disabilities. 

The video of the argument is linked here.

The reprimand involves findings of rude, disrespectful and unprofessional behavior toward an attorney. The Commission further found that the judge had failed to recuse herself from the case after admitting bias against the litigant.

The judge's answer to the allegations is linked here. 

The judge was named Judge of the Year  by the Maryland Access to Justice Commission in 2014.

The commission clearly has the authority to impose a reprimand. The question is whether the Court may review the exercise of that authority.

In D.C. bar discipline matters, the Board on Professional Responsibility has that same reprimand power.

My fading memory does not recall any instance of an attempt by either Bar Counsel or a respondent to appeal a Board reprimand. However (and unlike here), the court has by rule empowered itself to review any disposition in a bar discipline matter.

It would be a discretionary review rather than an appeal of right. (Mike Frisch)

November 5, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)

Monday, October 31, 2016

Bail Call Gets Judge Reprimanded

The Tennessee Board of Judicial Conduct has imposed a public letter of reprimand of a General Sessions Court Judge.

The judge learned that "an acquaintance had been arrested and placed in the Bartlett, Tennessee jail." The judge made multiple calls to learn if bond had been set. He informed the jailer that he was a judge and was setting bail to release the acquaintance on personal recognizance.

The jailer declined to accept the judge's authority and bond was set at $10,000. The Bartlett judge kept the bond as set despite the efforts of the reprimanded judge.

The story from the Memphis Daily News.

The reprimand describes “an acquaintance” of Anderson who was arrested and jailed Dec. 19 in Bartlett. The report does not identify the person or what they were charged with.

Anderson made several telephone calls to learn if bond had been set or would be set, but had obtained no information. The next morning Anderson went to the Bartlett jail and learned that bail would be set the next day – a Monday. Anderson asked for the telephone number of a Bartlett judge, but jailers said they didn’t have the number. That’s when Anderson “informed the jailer in charge that as a General Sessions Judge with Shelby County jurisdiction, you were setting bail for the acquaintance and the acquaintance was to be released on his own recognizance,” the reprimand reads.

The jailer refused to release the person and Anderson left. Later that day, a Bartlett judge set the bond at $10,000.

Anderson then called the judge “and asked if the Bartlett judge had knowledge that you have previously directed a release on recognizance,” the reprimand reads. “The Bartlett judge declined to reduce the bond he had set.”

Anderson’s conduct, the board concluded, violated the judicial canon that “a judge shall uphold and promote the independence, integrity and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.” Anderson also violated the canons that “a judge shall perform the duties of judicial office impartially, competently and diligently,” and “a judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.”

The reprimand also notes that once he was notified of the complaint, Anderson “promptly and with candor responded” and cooperated in the investigation.

(Mike Frisch)

October 31, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, October 26, 2016

Judge Admonished For Threats Of Contempt, Mistrial

The New York Commission on Judicial Conduct has admonished a judge who

without basis in law, threatened to:

( 1) hold an assistant district attorney in contempt of court if the defendant was arrested for threatening a witness in the case, (2) declare a mistrial with prejudice if the defendant was arrested, and (3) impose financial sanctions upon the District Attorney's Office if a mistrial was declared because of the arrest. Respondent also yelled and acted in a discourteous manner toward the assistant district attorney.

The misconduct took place during the trial of a man accused of raping his daughter.

After testifying, the defendant's ex-girlfriend alleged

Ms. Joseph completed her testimony before court was recessed for lunch. Toward the end of the luncheon recess, and before trial resumed, there was an off-the- record conference during which ADA Nugent informed respondent that the defendant, who was free on bail, had allegedly approached Ms. Joseph as she was leaving the courthouse during the lunch break and said to her, "You're dead." ADA Nugent also informed respondent that Ms. Joseph had been taken to the g4th Precinct stationhouse to make a complaint against the defendant.

The judge threatened the ADA over the possibility of a mid-trial arrest of the defendant

Let's make something crystal clear, People. Today is Friday. We are going to finish the People's case now with this last witness. The defense case is supposed to start on Monday. If you were to have .. . Mr. Bartholomew arrested any time between now and Monday ... Mr. Bartholomew ... would not be in a position to prepare his defense.

If there is a mistrial, if this case has to be delayed because you have unnecessarily and unjustifiably prevented the defendant from seeing his attorney and preparing his defense and this matter has to be adjourned, I will consider, one, financial sanctions against your office. And number two, I will certainly consider a mistrial with prejudice.

As a result

Although the police intended and were prepared to arrest the defendant promptly for threatening Ms. Joseph's life, they delayed doing so because of respondent's statements. Respondent sentenced the defendant to 15 years in prison and 20 years of post-release supervision. After sentence was imposed, the police arrested and charged the defendant with menacing, a B misdemeanor, having a maximum possible sentence of 90 days in jail. However, the Kings County District Attorney's Office chose not to prosecute the defendant on the menacing charge and it was dismissed for failure to prosecute. Notably, the prosecution had never requested an Order of Protection on behalf of Joleane Joseph in the three years this case had been pending trial, nor did they do so at the time they represented she had been allegedly threatened by the defendant Mr. Bartholomew.

The commission

regardless of whether [the judge]  intended to follow through on the threats he made, the threats were inappropriate since he had no lawful basis to act on them. Such statements to a prosecutor - especially by a judge who "yelled" and spoke in "a raised voice" - are highly intimidating and could only be perceived as a serious warning of very significant consequences, including a mistrial with prejudice in a case involving a serious crime. As respondent has acknowledged, his discourteous conduct was inconsistent with the required standards of judicial behavior.

The agreed statement of facts is linked here. (Mike Frisch)

October 26, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, October 24, 2016

This Bud's For You

A story from last week's Charlotte News & Observer

A Superior Court judge was convicted Friday on charges that he tried to bribe a federal agent with two cases of Bud Light to get copies of text messages from the phones of the judge’s wife and another man.

A defense attorney announced immediate plans to appeal the verdict against Wayne County Judge Arnold O. Jones II. The verdict came after jurors deliberated for less than an hour.

Sentencing is set for Jan. 23. But before then, the defense team will get one more opportunity to argue to U.S. District Judge James C. Fox that the case should not have gone to the jury because prosecutors failed to bring enough evidence.

Jones – the senior resident Superior Court judge in Wayne County – is on administrative leave from his post but campaigning for re-election in November.

He was convicted of three felonies – paying a bribe to a public official, promising and paying a gratuity to a public official, and corruptly attempting to influence an official proceeding.

 The convictions are likely to bring an inquiry from the judicial standards commission and the N.C. State Bar, which could jeopardize Jones’ law license and his job. Judicial standards representatives were in the Wilmington courtroom during the trial.

Read more here:

(Mike Frisch)

Read more here:


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

Thursday, October 20, 2016

No Bully Pulpit: Removal Of Judge Upheld

The New York Court of Appeals has upheld the removal from office of a judge

The misconduct giving rise to [the judge's] concession "qualifies as 'truly egregious'" (Restaino, 10 NY3d at 590). The record reflects that, among other things, petitioner used a sanction -- a tool meant to "shield" from frivolous conduct -- as a "sword" to punish a legal services organization for a perceived slight in an inexcusable and patently improper way (see 22 NYCRR 130-1.1 [a] [authorizing the imposition of sanctions, but precluding town and village courts from applying such penalties]). The record is also replete with instances in which petitioner used his office and standing as a platform from which to bully and to intimidate. To that end, it is undisputed that petitioner engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament -- perhaps most significantly, by engaging in a physical altercation with a student worker.

Those actions are representative of an even more serious problem. Petitioner -- in what allegedly was a grossly misguided attempt to motivate -- repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process. Those threats "exceeded all measure of acceptable judicial conduct" (Matter of Blackburne [State Commn. on Jud. Conduct], 7 NY3d 213, 221 [2006]), and we are particularly troubled by the testimony of one court officer, who suggested that petitioner's threats were so common that they became "a joke." The matter may have been a laughing one to that officer, but it was not to others.

 Significantly, too, petitioner's hectoring extended beyond the courthouse. In what ostensibly was an attempt to undermine a former co-Judge and an apparent political adversary, petitioner willfully injected himself into the political process involving the election of an office other than his own. All of the foregoing actions reflect a pattern of calculated misconduct that militates against petitioner's assertion that the misbehavior complained of will not be repeated if he is allowed to remain on the bench.1 Petitioner's misconduct apparently was tempered only by the intervention of the Commission, and at the hearing held with respect to this matter he appeared unrepentant and evasive, testifying falsely on at least two occasions in an attempt to minimize his misconduct -- all of which renders suspect his guarantees of better behavior.

Details on the misconduct may be found here in the Determination of the Commission on Judicial Conduct. (Mike Frisch)

October 20, 2016 in Judicial Ethics and the Courts | Permalink | Comments (1)

Monday, October 17, 2016

Brother Against Brother

The New York Law Journal has a report on allegations against a judge

A Sullivan County Court judge has been placed on restricted status amid an investigation of whether the judge intentionally ran over his older brother with an all-terrain vehicle.

Peter Labuda, 70, is accusing his brother Judge Frank LaBuda, 66, of breaking his leg and his rib by intentionally knocking him over with an ATV on Sept. 25 on property Peter Labuda owns in Wurtsboro, which adjoins property owned by the judge. The brothers capitalize their name differently.

Sheriff's deputies responded to a call about the afternoon incident but did not arrest Frank LaBuda, as his brother requested. The next day, from his hospital bed at the Orange Regional Medical Center, Peter Labuda told the Middletown Times Herald-Record that he believes his brother drove over him "full throttle" without trying to avoid him, after he told the judge to get off his property.

 Relations between the brothers were known to have been strained prior to Sept. 25, with the Times Herald-Record reporting that Frank LaBuda refused to talk to his brother when the two ran into each other the previous week at a local coffee shop, according to Peter Labuda.

No charges had been filed in connection with the case as of Monday, state and county officials said.

Benjamin Ostrer, an attorney representing Frank LaBuda, said that while the brothers' relationship has been difficult at times, he believes the judge will be exonerated.

"I can't imagine Judge LaBuda having intentionally struck his brother," Ostrer, of Chester, said Sunday. "I am confident that the investigation will reveal that it was truly an accident."

After the Sullivan County Sheriff's Department initially investigated the incident last week, Sullivan County District Attorney James Farrell announced Friday that he was handing the case over to state Attorney General Eric Schneiderman's office, and that the sheriff's department would forward all information it had gathered to state police.

"While I believe that my office could have fairly and impartially handled this matter, out of an abundance of caution and to avoid even the appearance of impropriety, I have requested the attorney general take over this case," Farrell said in a statement. "All of the people involved in this incident, Peter Labuda, Frank LaBuda and the citizens of this county deserve a full, fair and independent evaluation of the facts of this case."

Farrell said he is certain that state authorities will handle the matter in a "thorough, comprehensive and professional" way.

Lucian Chalfen, a spokesman for the Office of Court Administration, said LaBuda was placed on "annual leave" effective Monday after the judge conferred with Thomas Breslin, the chief administrative judge for the state's Third Judicial District.

Chalfen said that under annual leave, a judge remains on the bench but takes vacation time for the interruption in service. He said LaBuda will not return until the investigation and any prosecution of the Sept. 25 stemming is resolved.

Chalfen said LaBuda began to handle only civil cases last week once it was clear the allegations by his brother were being handled as a criminal matter.

In LaBuda's absence, Chalfen said Sullivan County Supreme Court Justice Stephan Schick and County Court Judges Michael McGuire and Mark Meddaugh will handle his caseload.

(Mike Frisch)

October 17, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Attempted Judging While Armed

An admonition was imposed on a non-lawyer judge by the New York Commission on Judicial Conduct

On three separate occasions in July 2013, May 2015 and June 2015, as set forth below, respondent asserted the prestige of judicial office while attempting to enter an Otsego County-owned building in possession of a firearm, in violation of a local law prohibiting the possession of weapons in county buildings...

At all times relevant to the matters herein, a sign was posted by the exterior door to the public entrance of the Meadows, stating "No Weapons Permitted." Posted below this sign was a copy of County of Otsego Local Law No. 2 of 1995, titled "A Local Law Banning Possession of Firearms and Other Dangerous Weapons in Otsego County Buildings" (hereinafter "Local Law")...

respondent possessed a license to carry a concealed firearm and carried a .380-caliber Ruger pistol in his pants pocket.

In each instance he had asserted his authority as a judicial officer to security officers

While respondent now understands that his conduct in identifying himself as a judge during these three incidents was inappropriate and created at least the appearance that he was attempting to use the prestige of his judicial office to enter the building with his pistol, respondent avers that he did so because he believed at the time that his status as a judge exempted him from security procedures in county buildings...

Throughout the incidents, respondent repeatedly referred to his judicial status and asserted that his judicial position exempted him from security procedures and compliance with the local law prohibiting possession of a weapon in county buildings. Notwithstanding his professed belief that, as a judge, he was entitled to special treatment for security purposes, the local law, which was posted at the entrance to the building, exempts "law enforcement officials only." Since that law was enacted in 1995, it seems unlikely that respondent- as a judge for 35 years and a gun owner-would have been unfamiliar with it. It was specifically brought to his attention in the first two incidents. Indeed, the fact that in the first two incidents he did not reveal that he had a gun or produce it when he emptied his pockets suggests that he was attempting to conceal the gun because he knew that bringing it into the building was prohibited. Regardless of whether the security procedures were enforced on other occasions, he was obligated to comply with those requirements when they were properly enforced by security officials. Even if he was not abusive or discourteous in confronting the security officers, he should have recognized that his repeated insistence that his judicial status entitled him to special treatment would place them in a more difficult position in carrying out their assigned responsibilities.

The Commission's news release is linked here. (Mike Frisch)

October 17, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, October 13, 2016

Judge Who Assaulted Mentally Disabled Person Removed From An Office He No Longer Holds

The Mississippi Supreme Court has removed from office and fined a judge

The Mississippi Commission on Judicial Performance recommends to this Court that former Madison County Justice Court Judge William “Bill” Weisenberger Sr. be removed from office after finding by clear and convincing evidence that Weisenberger physically and verbally assaulted a mentally disabled individual at the 2014 Canton Flea Market. Because of the egregious nature of Weisenberger’s actions, this Court agrees with the Commission’s recommendation and removes Weisenberger from office. Weisenberger is directed to pay a fine in the amount of $1,000 and costs of these proceedings in the amount of $5,918.46.

The ugly details

Weisenberger’s conduct clearly was willful. Weisenberger was not hired to provide security for the Canton Flea Market, yet he was dressed like a security officer and was carrying a gun and had a radio. Additionally, although Weisenberger knew he was not hired to provide security, he heard Deputy Sullivan’s transmission over the radio and purposefully injected himself into the situation instead of waiting for hired security officers. Weisenberger took it upon himself to initiate contact and unreasonably inflict physical injury upon Rivers. In addition, Weisenberger yelled a racial slur at Rivers, a completely inappropriate and intentional action that heightened the injury that Weisenberger inflicted. And instead of calling for security when Rivers did not walk in the direction in which Weisenberger had no authority to direct him, Weisenberger repeatedly made contact with Rivers and forced him to comply to Weisenberger’s wishes. Moreover, throughout the interaction, Weisenberger was wearing a shirt that said “Madison County Justice Court.” Thus, Weisenberger’s actions clearly were willful.

Justice Coleman concurred

Justice Dickinson makes an excellent point – that we cannot remove a person who is not a judge from the judicial office. However, our precedent in judicial performance cases requires us, in part, when we consider the proper sanctions for judicial misconduct to examine prior cases that are on point. See Miss. Comm’n on Judicial Performance v. Thompson, 169 So. 3d 857, 869 (Miss. 2015); Miss. Comm’n on Judicial Performance v. Skinner, 119 So. 3d 294, 300 (Miss. 2013). Should a future case arise as to which today’s case would be “on point,” today’s opinion would support removing the judge in question from office. If we omit the sanction from today’s opinion, then should the above-described case arise it would not be so readily apparent that removal is proper, despite the severity of the misconduct. Because including the sanction will better inform the Court’s decisions in the future, I concur with the majority’s decision to do so – despite the reality that Bill Weisenberger already has left office.

Presiding Justice Dickinson

I agree with the majority’s findings of misconduct, and most of the sanction imposed. But the notion that we can remove Bill Weisenberger from office after the voters already have done so is pure fiction. Justice Coleman understandably is concerned that the bench, bar, and public should be on notice that Weisenberger’s conduct merits removal from office.

But his concern would be eliminated by simply declaring that if Weisenberger still were in office, he would be removed from it. This approach would comport more closely with logic and the truth.

(Mike Frisch)

October 13, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, October 12, 2016


A former Buffalo judge has been disbarred as a result of a felony bribery conviction.

The Buffalo News reported on the conviction and the judge's background

For the first time in 21 years, no one rose to their feet when John A. Michalek walked into a courtroom on Wednesday.

For the first time since he began serving as a State Supreme Court judge in 1995, Michalek’s role in the courtroom was as an admitted criminal, one who pleaded guilty to felony crimes of bribe-receiving and offering a false instrument for filing in a court case. Both of the crimes involved Michalek’s dealings with longtime political power broker G. Steven Pigeon.

Looking thin, pale, tired, dejected and broken, the 65-year-old Michalek told the court that he was resigning from his $193,000-a-year judgeship, and agreeing to cooperate as a witness in the ongoing probe into Pigeon’s political activities. He faces a possible prison term of up to seven years when he is sentenced on Sept. 21.

As a convicted felon, the former judge also will lose his right to practice as an attorney. It’s a painful fall from grace for a man who was selected as the Outstanding Jurist in 2005 by the Erie County Bar Association’s Matrimonial and Family Law Committee. And many of the people who knew and worked with Michalek over the years seem genuinely surprised.

“Would I ever have expected Judge Michalek to get into any kind of trouble? Absolutely not,” said former Erie County District Attorney Frank J. Clark, who worked with Michalek from 1977 to 1985. “John was a very conservative, very reserved, very careful guy … a public servant. I was extremely surprised to hear he was in any kind of trouble. It just doesn’t add up.”

Until now, many people in legal circles would say Michalek lived a charmed life. A State Supreme Court judgeship is one of the most coveted jobs for any lawyer in New York State. It is a 14-year position that, in addition to a salary far beyond that made by most lawyers, provides a generous pension and other benefits.

Michalek never had to run in a contested election for his judgeship. A registered Democrat, he was selected by political party leaders to be “cross-endorsed” by both Democrats and Republicans in 1994 and again in 2008.

Every judge has his or her critics, but legal experts say most of the lawyers who practiced in front of Michalek considered him to be fair, honest and hardworking.

“I’ve practiced in front of him a number of times over a period of 20 years. Even when he’s ruled against me, I’ve never seen a decision from him that seemed to be tainted by politics or anything else,” said Amherst lawyer Steven M. Cohen.

It is sad, said Cohen and several other Buffalo attorneys, that Michalek has become the second brother in his family to wind up in serious trouble with the law.

Not like his brother

His older brother, the late James J. Michalek, was a flashy guy – an attorney and investment scam artist who lived in an extravagant home in Orchard Park, wore a full-length fur coat, drove an expensive sports car and went to prison in the 1990s for cheating banks out of millions of dollars and dozens of senior citizens out of their retirement savings.

To most people in Buffalo’s legal community, John Michalek seemed to be cut from a much different cloth. He earned a reputation as an earnest, quietly efficient attorney who served as a top prosecutor in the Erie County district attorney’s office before political party leaders chose him to become a State Supreme Court judge in 1994. He began serving in 1995.

“John was not only embarrassed by the actions of his brother, he felt terrible about it,” said a close family friend of Michalek. “Some of Jim’s victims were old family friends, old neighbors and retired steelworkers … John wanted people to know that he wasn’t like that.”

“John and his brother Jim were such different personalities. Jim was flamboyant, a riverboat gambler,” Clark said. “John seemed to be a much different guy.”

The former judge grew up in a well respected family in Lackawanna. His late father, Leo Sr., was a physician. His late mother, Louise, was a nurse widely involved in charity and volunteer activities. The couple raised five children – three lawyers, a physician and a psychiatrist.

“I’ve known this family going back to the 1950s, and they were one of the most respected families in Lackawanna,” said former Erie County DA Edward C. Cosgrove, still practicing law at age 81. “They were good, solid people, deeply religious, hardworking, very good students.”

John Michalek graduated from St. Francis High School, Canisius College and the University at Albany Law School before he was hired by the district attorney’s office in 1977.  Cosgrove gave him his first job.

“John was a marvelous young man who worked very hard for us,” Cosgrove recalled.

A notorious client

In 1985, after serving four years as chief of the Justice Courts Bureau, Michalek left the DA’s office and established a Hamburg law firm with two partners, Daniel J. Henry and Robert M. Vallarini, who later would win election as an Erie County legislator. Michalek handled some criminal defense work with the law firm, and his most famous – or infamous – client was the late Richard W. Matt.

Michalek represented Matt in a number of criminal matters in the early 1990s. Matt jumped into the national headlines last summer when he and another inmate escaped from the Clinton Correctional Facility in Dannemora. After nearly three weeks on the run, Matt was shot and killed by police last June.

Michalek became active in Town of Hamburg politics, and he was named assistant town attorney in 1988. Hamburg political figures say Michalek was an invaluable aide to Vincent J. Sorrentino, who was the town attorney and also the chairman of the Erie County Democratic Party. After Hamburg’s town supervisor, Jack Quinn, was elected to Congress, Michalek was appointed to take his place as interim supervisor for the year of 1993.

In 1994 – with a big push from Sorrentino – Michalek was selected by party leaders to get both the Democratic and Republican Party endorsements for State Supreme Court judge. With no actual competition, he won election for his first 14-year term in November 1994.

He has not been a controversial figure as a judge, but has handled some high-profile cases. In a 2012 ruling, he awarded more than $2.7 million – or more than $230,000 each – to 12 white Buffalo firefighters who alleged they were passed over for promotions because of their race. City officials vehemently disagreed with the ruling, which was later overturned by an appeals court.

In April of this year, Michalek made a ruling that barred former Buffalo School Board James M. Sampson from the ballot for this year’s election. Michalek agreed with opponents of Sampson who said he did not have enough legitimate signatures on his nominating petition.

One local attorney, Arthur Giacalone, said he had a bad experience with Michalek and felt he treated him and his client unfairly during a 2014 trial. But most attorneys and court officials interviewed by The News in recent weeks said Michalek had a solid reputation.

Allegations shock peers

“I always considered him to be a decent guy, hardworking and diligent,” said one former colleague, Salvatore R. Martoche, a former state appellate judge now in private practice. “I honestly can’t say anything negative about him because I don’t know anything bad about him.”

“I practiced before him on several different lawsuits, and I thought he was fair and very careful,” said Cosgrove, Michalek’s former boss. “As far as I am concerned, his past and present reputations are marvelous. I don’t know of anything contrary to that. I’d have to understand every part of what happened before I made any judgments on him.”

Acting Erie County District Attorney Michael J. Flaherty Jr. was not involved in the Michalek probe, but he held a press conference after Wednesday’s court session to talk about the importance of prosecuting judges and other government officials who violate the public trust.

Flaherty called Michalek’s case “a sad and intolerable ... disheartening” situation.

[Investigators zero in on email exchanges between Pigeon and Michalek]

The acting DA said he cannot recall another instance of a State Supreme Court judge in Western New York being accused or convicted of bribery-related charges.

A tall man who enjoyed playing pickup basketball with local attorneys, Michalek is described by friends as a devoted husband and father who has donated his time to St. Francis High School and other charitable and not-for-profit organizations.

One longtime Hamburg politician, who spoke on the condition that he or she would not be identified, expressed shock after learning of Michalek’s close relationship with a controversial political power broker like Pigeon.

“Knowing John as I do, I cannot fathom him doing anything illegal,” said the politician, a friend of Michalek’s for more than three decades. “I’ve known unsavory people in politics, but I can’t imagine John being one of them.”

When asked if he ever imagined that Michalek would take bribes or do anything else that was illegal, Cosgrove exclaimed: “Goodness, gracious no!”



The order was entered by the New York Appellate Division for the Fourth Judicial Department. (Mike Frisch)

October 12, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, October 5, 2016

No Shawshank Redemption

A recent opinion of the Florida Judicial Ethics Advisory Committee


Whether a judge may directly solicit donations of used books for use by inmates at the local jail library?



 The inquiring judge has been taking used paperback books to a local jail for use in the inmate library. The judge would like to step up this effort by asking for donations of used books from the local bar association membership and asking attorneys to drop the used books off at the judge’s office for the judge to deliver to the jail. The judge would also like to post on the judge’s Facebook page that the judge wants to collect people’s used books to take to the jail.


Soliciting donations from groups or persons who appear before the judge, such as members of the local bar association, and requesting that the donations be delivered to the judge or the judge’s office may convey the impression that the judge will favor those who donate. Likewise, soliciting donations from groups or persons on the judge’s Facebook page, regardless of whether those groups or persons appear before the judge, also may appear to be coercive to those who are not inclined to donate but who fear the judge’s disfavor if they do not donate, particularly when the judge is requesting that the donations be delivered to the judge or the judge’s office.

(Mike Frisch)

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

Friday, September 30, 2016

Judge Being Judged

Disciplinary argument involving a judge who refused to perform same-sex marriages has been scheduled, according to a recent report by the Statesman Journal.

The Oregon Supreme Court has scheduled oral arguments regarding the judicial fitness of Marion County Circuit Judge Vance Day. The hearings are set to begin March 22, 2017, and the court will consider whether to sanction Day for ethics violations.

Earlier this year, Oregon's nine-member judicial fitness commission held a two week trial of Day, who was accused of a litany of ethics violations. Prosecutors said he refused to marry same-sex couples; created improper relationships with defendants; allowed a convicted felon to handle a gun; and took money from attorneys that appeared before him, among other accusations.

Day denied the accusations. His attorneys argued that if he did violate any ethics rules, his conduct was protected by the free speech and religion protections of the First Amendment. Day has said his Christian beliefs prevent him from performing marriages for same-sex couples.

The commission — which is comprised of sitting judges, attorneys and members of the public — ultimately said Day violated his oath of office and engaged in criminal conduct. They unanimously recommended that Day be removed from the bench.

Day has said if he's sanctioned, he will appeal to the U.S. Supreme Court, the only venue for appeal of state supreme court decisions.

A former head of the Oregon Republican Party, Day was appointed to the Marion County bench in 2011 by Gov. John Kitzhaber. He was elected to a full six-year term in 2012.

Day continues to sit on the Marion County bench, but has been relocated from the downtown courthouse to the annex building on Aumsville Highway.

(Mike Frisch)

September 30, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)