Wednesday, July 9, 2014

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)

Monday, June 16, 2014

Urgent Need A Mitigating Factor

The Pennsylvania Court of Judicial Discipline rejected the proposed sanction of removal from office of a magisterial district  judge and ordered a suspension without pay and probation for misconduct relating to dismissed parking tickets.

The judge presided over a busy court and suffers from Crohn's Disease, which caused urgent bathroom needs.

She received a number of parking citations, three of which she had dismissed.

The court found mitigation

The offending conduct here was an isolated incident which we believe would never have happened save for the coming together of a number of events and circumstances, as

- Respondent’s affliction with Crohn’s disease,

- the onset of an urgent need to use a restroom,

- the inadequacy of the restroom in the court office,

- the need to use the restroom at her home,

- the non-existence of a legal parking space near her home at the time,

- the issuance of the tickets while she used the restroom at home,

- the onset of a painful medical condition requiring treatment including hospitalization and surgery during the critical 15-day period when she would, ordinarily, have paid the tickets.

The misconduct was deemed to be an isolated incident by an outstanding magisterial district judge who presides over a busy court in an exemplary manner.

Further, the judge had self-reported. (Mike Frisch)

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

Tuesday, June 10, 2014

Judicial Investigation Powers Upheld

The New York Court of Appeals held that the Commission on Judicial Conduct is authorized to obtain sealed records in aid of an ongoing investigation into alleged judicial misconduct.

The appeal was brought by an attorney who was criminally prosecuted for campaign violations along with a judge. The charges were either dismissed or led to a jury acquittal.

The commission sought the records after the criminal charges were resolved. (Mike Frisch)

June 10, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, June 5, 2014

Judge Disbarred For Relationship With Prosecutor In Death Case

The Florida Supreme Court has disbarred former Broward County Circuit Court Judge Ana Gardiner for misconduct involving her relationship with the prosecutor in a death penalty case in which she presided

The relevant facts in this case are essentially undisputed. While serving as the presiding judge in a capital first-degree murder case, Gardiner commenced a significant emotional relationship with the lead prosecutor in the case. During a five-month period, Gardiner and Scheinberg exchanged 949 cell phone calls and 471 text messages, including 44 phone and text communications on the day before,the day of, and the day after Gardiner imposed the death sentence. Gardiner intentionally chose not to disclose this relationship to the defense. She also did not disclose the true nature of the relationship to the JQC during its investigation in November 2008.
The conviction was vacated on motion of the prosecutor's office as a result. The defendant eventually received a life sentence.
 The Prosecutor received a two-year suspension. The court here rejected rejected the referee's proposed one-year suspension for the judge.
 Earlier coverage from the Sun Sentinel is linked here. (Mike Frisch)

June 5, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, June 2, 2014

Riding In Cars With Defendants

A town court justice was censured by the New York Commission on Judicial Conduct for, among other things, his involvement with a DUI defendant

In sum, respondent's handling of the Matus case was inconsistent with numerous fundamental ethical principles. Viewed objectively, the totality of his conduct chatting with a defendant about his case during a ride in a police car, recommending that the defendant retain a lawyer with whom the judge had a business relationship, and granting the relief requested by the defendant even after respondent had indicated he could not handle the case breached the appropriate boundaries between a judge and a litigant and thereby created "a very public appearance of impropriety" (Referee's report 13), which adversely affects public confidence in the judiciary as a whole.

He also imposed fines in excess of the allowable maximum and made improper political contributions. (Mike Frisch)

June 2, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Two Friendly Judges

The New York State Commission on Judicial Conduct removed a judge of the Albany Surrogate's Court as a result of findings summarized in a press release

The New York State Commission on Judicial Conduct has determined that Cathryn M. Doyle, a Judge of the Surrogate’s Court, Albany County, should be removed for presiding over matters involving her close friend, her personal attorney, and a lawyer who acted as her campaign manager. The judge was publicly censured by the Commission in 2007 for giving testimony that among other things was "evasive and deceptive," "misleading and obstructionist."

From 2007 to 2011 Judge Doyle failed to disqualify herself from, and took judicial action in, nine matters involving attorneys with whom she had close professional and personal relationships: four matters involving her close friend and personal attorney, Thomas J. Spargo; four matters involving attorney Matthew J. Kelly, the judge’s de facto campaign manager in her 2007 failed campaign for a nomination to the state Supreme Court and later the campaign manager in her 2010 campaign for reelection as Surrogate; and one matter involving William Cade, the attorney who had represented her in an earlier Commission proceeding that resulted in her censure in 2007. (Mr. Spargo was himself removed from judicial office after a Commission proceeding in 2006 and, in related proceedings, was disbarred by the Appellate Division and convicted of a felony in federal court.)

 Among the judicial actions Judge Doyle took in these matters was admitting wills to probate, issuing letters of administration, signing decrees granting administration after probate, conducting conferences and issuing various orders, appointing guardians ad litem for infants named in a will, and determining that particular infants were intended trust beneficiaries of a will.

As to removal

In imposing the sanction of removal, the Commission underscored that the misconduct began soon after she was censured by the Commission in 2007 for giving "evasive" testimony in a proceeding inquiring into her actions in connection with a legal defense trust fund for Mr. Spargo, who was then a Supreme Court Justice. The Commission stated that, "if not for her disciplinary history, [Judge Doyle] may have had a more credible argument to retain her judgeship." The Commission concluded: "Under the circumstances, we are constrained to view [Judge Doyle’s] misconduct with particular severity since, in view of her censure in 2007, she should have been especially sensitive to her ethical obligations, including her duty to avoid even the appearance of impropriety."

The Commission's web page notes

Judge Doyle has requested review of the determination in the Court of Appeals, which has scheduled oral argument for June 5, 2014.

The Court of Appeals suspended Judge Doyle from office, with pay, pending review of the Commission's determination. The Court's order is available at Doyle Suspension.

The judge was on the Albany Law adjunct faculty. (Mike Frisch) 

June 2, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 27, 2014

Safe At Home

A judicial ethics opinion from South Carolina addresses this question

A full-time Magistrate  judge inquires into the propriety of serving  as the head baseball coach for a high school or an American Legion team.   The high school team is funded by the school  district which also pays the coach’s salary.   The high school team is also supported by a booster club that has  fund-raising projects.  The American  Legion team is funded by donations and  sponsors, and the judge’s coaching position is an unpaid, volunteer position.  The judge does not solicit sponsors or  donations.  The team’s general manager handles  all donations, sponsors, and bookkeeping.   However, the team does hold several fund-raisers, for which the judge  participates in planning and operations.   One fund-raiser was a golf tournament for which a flyer was produced  asking for hole sponsorship; the judge’s name (with no reference to judicial  office) was one of several others listed as persons to contact regarding the  tournament. 

It's OK with a caveat

Here, if the judge  does continue employment with the high school, the judge should not actively  solicit funds on behalf of the booster club, though the judge may assist the  booster club in planning fund-raisers.  If the judge observes the Canons on  fund-raising, there is no violation against employment as a high school  baseball coach.

  As the coach for the American Legion  team, it appears that the judge would only be involved in planning the  fund-raisers, and not in any active solicitation. Moreover, the flyer listing  the judge as one of the tournament organizers for the legion team is akin to  the use of letterhead for fund-raising and, since the judge’s office is not  included on the flyer, there is no violation of the Canons.  Therefore, the judge may serve as an unpaid  volunteer coach for an American Legion baseball team, provided that the judge  continue to observe the limitations on fund-raising.

(Mike Frisch)

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

Thursday, May 15, 2014

Double The Legal Limit

The Florida Supreme Court has ordered that a circuit court judge be publicly reprimanded for a conviction for driving under the influence of alcohol.

The breath test results were double the legal limit.

The court called the conduct "reprehensible."

In Florida, a public censure requires the judge to appear in court to be reprimanded. The published opinion is  not sufficient. (Mike Frisch)

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

Tuesday, May 6, 2014

The Model Judge

A recent opinion from the Florida's Judicial Ethics Advisory Committee

Whether a Judge, who is a member of a  regional Association for Women Lawyers, may participate as a model as a part of  an event described as a “cocktail party and fashion show,” where the event’s  proceeds “primarily benefit…a free childcare facility located inside  the…courthouse” but also help fund the association’s “assistance to deserving  law students in need of financial support.”



The  inquiring judge is a member of a regional Association for Women Lawyers (“the  Association”) in the judge’s circuit. The Association is presenting its “annual  spring cocktail party and fashion show.” In addition to a spring fashion runway  show produced by a local department store, the event will offer to attendees  “exclusive storewide discounts, door prizes, a silent auction, and special VIP  offerings.” According to the Association’s event chair, “This stylish event  supports the growth of [the area’s] professional women and women-owned  businesses, while raising money for two important causes: [a free childcare  facility located inside the courthouse] and [the Association’s] Bar Scholarship  [which provides assistance to deserving law students in need of financial  support].” The Association’s solicitation letter for event sponsors states in  part, “As a sponsor, you will have the unique opportunity to showcase your  business to the stars of [the local area’s] legal, business and executive  communities.”

The event chair explains that the free  childcare facility serves children who are brought to court by their caregivers  when the caregivers have no safe place to leave them during the caregivers’  required attendance in court. She states it “spares these children from  witnessing adult interactions that could be painful or frightening for them.” The  childcare program in the courthouse therefore provides a supervised drop-in  childcare facility for litigants, jurors and witnesses when childcare issues  might otherwise create an obstacle for court participants to attend court  proceedings. The facility “also provides their caregivers with referrals to  resources like full-time child care or career counseling so they can return to  work, financial assistance for crisis situations, counseling for children who  have experienced trauma, and even beds for their homes.”

The inquiring judge asks whether a judge is  permitted to participate in the Association’s fundraising event by modeling  some of the fashions in the spring fashion show.


Canon 2B provides, “A judge shall not lend the prestige of judicial  office to advance the private interests of the judge or others….”  The Commentary to Canon 2B states in part:

Respect for the judicial office  facilitates the orderly conduct of legitimate judicial functions. Judges should  distinguish between proper and improper use of the prestige of office in all of  their activities. A judge must avoid lending the prestige of judicial office  for the advancement of the private interests of others.

In 2008, the Florida Supreme Court in In  re Amendments to the Code of Judicial Conduct-Limitations on Judges’  Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008)  amended Canons 4 and 5 of the Florida Code of Judicial Conduct to allow for  judicial participation in fundraising in the context of “quasi-judicial  activities” and “extrajudicial activities” concerning the law, the legal  system, and the administration of justice. Canon 4D(2) was amended to permit a  judge to participate in a fundraising event if the event met two criteria: (1)  the event is sponsored by an organization or governmental entity that is  devoted to the improvement of the law, the legal system, the judicial branch or  the administration of justice, and (2) the event concerns the law, the legal  system, or the administration of justice and the funds raised will be used for  a law-related purpose. If these two criteria are met, then a judge may “speak  at, receive an award or other recognition at, be featured on the program of and  permit the judge’s title to be used in conjunction with [a fundraising]  event….” Fla. Code Jud. Conduct, Canon 4D(2)(b).  But even if these  criteria are met, Canon 4D(2)(a) prohibits judges from personally or directly  participating in the solicitation of funds from anyone except from other judges  over whom the judge does not exercise supervisory or appellate authority.

Canon 4 states, “A Judge Is  Encouraged to Engage in Activities to Improve the Law, the Legal System, and  the Administration of Justice.” Canon 4A provides, in pertinent part:

A.  A judge  shall conduct all of the judge’s quasi-judicial activities so that they do not:     *        *        *     (2)  undermine  the judge’s independence, integrity, or impartiality; [or]     (3)  demean the judicial office;

The Commentary to Canon 4B states, “This canon was clarified in order to  encourage judges to engage in activities to improve the law, the legal system,  and the administration of justice.”  Canon  4D(2)(b), dealing with a judge’s participation in an organization devoted to the improvement of the law, the  legal system, the judicial branch, or the administration of justice, now provides:

(2) A judge as  an officer, director, trustee or non-legal advisor, or as a member or  otherwise:     *        *        * (b)  may appear or speak at, receive an award or other  recognition at, be featured on the program of, and permit the judge’s  title to be used in conjunction with an event of such an organization or  entity, but if the event serves a fund-raising purpose, the judge may  participate only if the event concerns the law, the legal system, or the  administration of justice and the funds raised will be used for a law related  purpose(s);

    (Emphasis  supplied.)

The  majority opinion in In Re Amendments, supra, observed that the amendment to Canon 4 “is intended to allow  judges to participate in a law-related organization’s fundraiser only where the  particular event serves a law-related purpose and the funds raised will be used  for a law-related purpose.” 983 So. 2d, at 552.  The opinion placed the  responsibility on a judge who wants to participate in a fundraising event to  determine if the event meets the criteria of Canon 4D(2). Id.   Justice Peggy Quince, in her dissent cautioned that a judge who wants to  participate in a fundraising event permitted by Canon 4D(2) “will have to make  a  judgment call on whether or not a particular organization or event  falls within the ambit of the amendment.”  In re Amendments to the Code  of Judicial Conduct-Limitations on Judges’ Participation in Fundraising  Activities, 983 So. 2d 550, 553 (Fla. 2008) (Quince, J.,  dissenting).

The Committee is of the opinion that the  Association is an organization devoted to the improvement of the law, the legal  system, the judicial branch, or the administration of justice. The courthouse  childcare program improves the administration of justice by decreasing  continuances due to childcare issues and by making the courts more accessible  to parents who would not otherwise be able to attend required court proceedings  because of a lack of childcare options. The  Committee further believes the free childcare program in the courthouse  contributes to the administration of justice by helping childcare providers to  honor their required court appearances and by providing a safe and convenient  childcare service for their children during such appearances.

Thus, the Committee advises the inquiring  judge, who is a member of a regional Association for Women Lawyers, that the  judge may participate as a model as a part of an event described as a “cocktail  party and fashion show,” where the event’s proceeds “primarily benefit…a free  childcare facility located inside the…courthouse” but also help fund the  association’s “assistance to deserving law students in need of financial  support.” Cf., Fla. JEAC OP. 11-06 (Judge  may not speak and be featured on a program and permit the Judge’s title to be  used for a fundraiser for a program which provides supervised childcare to  parents and guardians who are attending court-related matters, because, although  the program is law-related, it is under the umbrella of the YWCA, an  organization that is not solely devoted to the law, the legal system, or the  administration of justice.)

(Mike Frisch)

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

Monday, May 5, 2014

The Recollections Of Schnitzer

Over a pointed dissent by Justice Harris, the New Jersey Appellate Division has affirmed a criminal conviction.

The court squarely rejected the principal challenge of the defendant -- that he could not be tried before a judge who had been mandatorily retired when he reached the age of 70.

The 73-year-old judge was recalled from retirement to hear the case.

The court noted regular practice that has long permitted retired judges to be recalled to preside over cases and responded to the dissent

Stripped of its plumage, the dissent's contrary construction boils down to this: the plain language of the Judicial Retirement paragraph creates an irrevocable alienation of pensioner from title, a kind of sequestration, worse yet quarantine, rendering the judicial retiree incognito, isolated and idle, relegated to some sort of professional limbo, yet imprisoned by all the ethical restraints of a status and an office that somehow no longer exists. Nothing in the language of the Judicial Article, or its intended purpose, however, compels this overly harsh result.

Justice Harris

Warning: the elegantly pragmatic approach of the able and well-researched opinion of my colleagues may seduce the reader into undiscerning agreement. I urge caution and a willingness to disagree...

Notwithstanding its salutary purposes and practical success, N.J.S.A. 43:6A-13(b) cannot be justified when taking bearings from the Constitution. Historical acceptance cannot establish the statute's bona fides, see Henry, supra, 204 N.J. at 345 (Rabner, C.J., concurring) (noting that "historical practice alone rarely proves the correctness of a legal proposition"), and historical patterns cannot save an unconstitutional practice.

I take final comfort in the recollection of Morris M. Schnitzer, who was asked in 1995, "Was it contemplated that judges, once retired at age 70, could be recalled?" Conversations with Morris M. Schnitzer, supra, 47 Rutgers L. Rev. at 1401. Schnitzer —— who was present during the Constitution's conception, gestation, and birth —— unequivocally responded: "Certainly not, since that would have resurrected the example of Justice Parker and others who sat long after their peak." Ibid. If that is the way Schnitzer remembered it, who am I to disagree?

Mr. Schnitzer is remembered here. (Mike Frisch)

May 5, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, May 1, 2014

Fundraising Letter Gets Judicial Candidate Reprimanded

The Florida Supreme Court has issued a public reprimand of an attorney for an ethical violation during a campaign for judicial office.

In September 2009, the Respondent became a candidate for County Court Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, the Respondent signed a campaign fundraising letter, in which she personally solicited campaign contributions. The Respondent admitted to having reviewed and approved the letter. At the time she signed the letter, no other candidate for the judgeship had been announced. In addition to soliciting campaign contributions, the letter stated that the Respondent served the "community as Public Defender," though her correct title was "assistant public defender." The letter also included a link to the Respondent’s website, which correctly referenced her work history as an assistant public defender.

The court rejected a constitutional challenge to the code provision.

Under Canon 7C(1), the Respondent was not completely barred from soliciting campaign funds, but was simply required to utilize a separate campaign committee to engage in the task of fundraising. In other words, Canon 7C(1) is narrowly tailored because it seeks to "insulate judicial candidates from the solicitation and receipt of funds while leaving open, ample alternative means for candidates to raise the resources necessary to run their campaigns." Simes, 247 S.W.3d at 883. We conclude that Canon 7C(1) promotes the State’s compelling interests in preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary, and that it is narrowly tailored to effectuate those interests. Therefore, we hold that Canon 7C(1) is constitutional, and we approve the referee’s recommendation that the Respondent be found guilty of violating rule 4-8.2(b).

(Mike Frisch)

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

Friday, April 25, 2014

Hricik on Judges Having "Friends" and Other Tech Issues of Judicial Ethics

David Hricik (Mercer, Law) has posted to SSRN a useful paper for judges, but also for the rest of us interested in how their ethics are affected by new technologies (and how to deal with lawyer ethics of using tech). It is titled Technology and Judicial Ethics and its abstract is:

This paper was written for judges to assist them in understanding: their obligations concerning Facebook and other social networking sites, including "friending" lawyers; the confidentiality of email, texts, and other e-communications; the use of the Internet by lawyers to research jurors or potential jurors; the use of the Internet by judges to research the facts and law; and how to admonish jurors not to use the Internet to research the case before them or to discuss it prior to deliberations.

[Alan Childress]

April 25, 2014 in Abstracts Highlights - Academic Articles on the Legal Profession, Judicial Ethics and the Courts, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Saturday, April 19, 2014

A Friend On The Bench

A state district court judge who improperly interfered with a pending matter involving a friend has been publicly reprimanded  hy the Nebraska Supreme Court. is essentially no dispute that [Judge] Schatz used his judicial authority to order the release of Davlin without Davlin’s paying a bond. The record shows that Schatz’ actions were not in accord with how bonds were normally set in felony drunk driving cases. Specifically, the record shows that without Schatz’ intervention, Davlin would have remained in jail until his arraignment in county court, when presumably either he would have been released on his own recognizance or a monetary bond would have been set. In the latter and more probable circumstance, Davlin would have been held in jail until he posted bond.

While the court did not condone the conduct, it concluded that a number a mitigating circumstances justified a reprimand. (Mike Frisch)

April 19, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 16, 2014

Judging Judges In New York

The New York State Commission on Judicial Conduct has released its annual report.

This press release summarizes the year in judging judges

The New York State Commission on Judicial Conduct has released its 2014 Annual Report, covering the Commission’s activities in 2013. The Commissionreports having received 1,770 complaints, conducting 654 preliminary inquiries and investigations, and issuing 17 public decisions in 2013. In addition, 10 judges resigned from office while complaints against them were pending.

The bottom line

17 public decisions were rendered:

   2 Removals from office

5 Public Censures

5 Public Admonitions

5 Public Stipulations in which judges resigned and agreed to never again hold judicial office

5 other judges resigned at a point before the proceedings against them became public.

A detailed, annual report from a body regulating lawyer and judicial discipline promotes transparency and is a necessary part of any reputable regulatory regime.

The District of Columbia disciplinary system has never issued such a publicly-available report. (Mike Frisch)

April 16, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 8, 2014

Former Justice Suspended For Profiting From Referrals

A town court justice who presided over traffic, minor drug and alcohol offenses and small claims matters was suspended from the practice of law for not less than five years without automatic reinstatement by the Indiana Supreme Court.

Defendants who faced first-time traffic charges would receive deferred prosecution "if they took a defensive driving course." Such courses were conducted in the justice's courtroom on a Saturday with the profits going to the driving school.

But things changed

 In October 2001, Respondent created her own business called Diversified Educational Services ("DES") which offered the defensive driving courses. Respondent's father contracted with W.S.1 to open a checking account in the name of DES, which Respondent and her father controlled. Respondent directed that the fees collected from defendants that she ordered to attend the driving school be deposited into the DES account. Between November 2001 and December 2003, people attending DES driving school paid fees totaling $29,600. W.S. was shown as the sole owner of the account to conceal Respondent's financial interest in DES. Respondent paid W.S. $3,800 from the DES account for his cooperation. Respondent did not disclose her financial interest in DES to the Town or to defendants charged with traffic offenses in her court.

In December 2001, Respondent stopped paying rent to the Town for DES's use of the courtroom for the driving classes. Between December 2001 and December 2003, DES conducted sixteen driving school classes for which no rent was paid to the Town.

The justice also used her position to profit from referral of young adults to a counseling program and concealed her financial interest in the referrals.

The justice was convicted of mail fraud and was suspended on an interim basis as a result. The court considered a number of mitigating factors. (Mike Frisch)

April 8, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2014


The North Dakota Supreme Court has ordered the suspension without pay for a month of an elected district court judge for sexually harassing his court reporter.

It statred with this

The Commission found that on May 24, 2010, Judge Corwin injured his hands while at work and his court reporter drove him to a hospital emergency room. Judge Corwin testified that "we came out of [the emergency room incident] with a connection we didn't have before." Because his hands were bandaged from the accident, Judge Corwin would ask the court reporter to come to his office and help him tie his necktie for court appearances. The court reporter did so and found the experiences "[u]ncomfortable but not alarming."

But the situation got worse

On July 15, 2010, Judge Corwin and the court reporter, along with other Cass County Courthouse personnel, went to a Fargo restaurant and bar for an after-work gathering where they consumed alcohol. Judge Corwin invited the court reporter to join him on a bicycle ride that evening. She did so, and after the bicycle ride, Judge Corwin invited her into his home where they each had a glass of wine. While in the home, Judge Corwin engaged the court reporter in a conversation which she reasonably construed as a proposition for a sexual relationship. The court reporter rejected the offer, telling him she had read an article advising "it was a mistake to get involved with your boss." Judge Corwin responded that not all office romances end badly and pointed to his own 20-plus year marriage to his former secretary. As the court reporter was leaving the home, Judge Corwin hugged and kissed her.

On the evening of Sunday, July 18, 2010, Judge Corwin called the court reporter at her home and requested she bring a blind she had taken to wash to the courthouse so he could hang it in a bathroom there. The court reporter told Judge Corwin she would not get involved in a relationship with him. On July 21, 2010, Judge Corwin called the court reporter while traveling to a court appearance in Hillsboro and asked if she would go on a bike ride with him the following evening. The court reporter declined the invitation and reiterated her belief that it was a bad idea for the two of them to become intimate. Judge Corwin became angry. While on an extended lunch break on August 3, 2010, the court reporter received a text message from a coworker telling her Judge Corwin had been in the court reporter's office for 45 minutes with his feet on the desk reading a transcript. This was something Judge Corwin had not done before. He was still there when she returned to her office. The court reporter felt intimidated by the experience.

The court reporter continued to make efforts to rebuff the advances of the judge, who was responsible for conducting her performance review. The review had salary implications.

The court concluded

The evidence establishes that Judge Corwin sought to have an inappropriate relationship with the court reporter after she rebuffed his efforts to do so. Judge Corwin treated the court reporter differently than her coworker on the team. After finally realizing a sexual relationship would not materialize, Judge Corwin suggested the court reporter be switched to another team and told her "'[i]f this were still the law firm, I'd have taken care of the problem a long time ago, but since you work for the state it's going to be a little tougher.'" Judge Corwin then began complaining about the court reporter's work performance to court administrators before and during her biennial performance review. Judge Corwin relies on the testimony of the presiding judge, who recollected that Judge Corwin did not want any disciplinary actions taken against the court reporter. However, the presiding judge did not become involved in this matter until much of Judge Corwin's inappropriate conduct had already occurred.

The judge has announced that he will not seek reelection when his term expires at the end of 2014.

The Forum of Fargo-Moorhead had the story. (Mike Frisch)

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

Friday, March 7, 2014

No Writ For Las Vegas Judge

The Nevada Supreme Court denied a writ sought by a Las Vegas family court judge to derail an ongoing investigation into a host of allegations of misconduct involving, among other things, a federal fraud investigation, sex with an extern, domestic violence and taking marijuana that had been seized as evidence.

The Las Vegas Review-Journal reported on a recent three-month suspension of the judge last month as a result of an inappropriate relationship with a now-deceased prosecutor:

Following a week-long hearing in December, the judicial commission found that special prosecutors proved eight of 12 charges filed against Jones related to his relationship with Willardson, who still appeared before him.

Jones discovered Willardson’s body in the bathroom of her Henderson home on Dec. 26, the same day the commission’s decision on the charges was made public.

There were no signs of foul play, and the coroner is waiting for toxicology results before ruling on the cause of her death.

Commission prosecutors had accused Jones of violating rules of the Nevada Code of Judicial Conduct that require judges to avoid the appearance of impropriety and conduct themselves in a manner that promotes public confidence in the integrity of the judiciary.

The commission ruled prosecutors proved three counts that were tied directly to the judge’s affair with Willardson between October and December 2011.

Two of the counts alleged Jones improperly maintained the relationship while Willardson litigated child welfare cases before him and then did not disqualify himself from the cases. He issued a ruling in her favor in December, long after they had begun to date.

The other count accused Jones of interfering with Roger’s decision to remove Willardson from a child welfare unit that prosecuted cases in the judge’s courtroom.

The commission also found that prosecutors presented strong evidence to sustain three counts accusing Jones of using his judicial office to help Willardson prepare a response to a State Bar complaint against her stemming from their romantic relationship.

In this article on emails produced at the hearing, the prosecutor reportedly described the judge as "smoking hot."

In its opinion, the court held that a judge under investigation has more limited rights than after charges are brought.

The opinion in Jones v. Nevada Commission on Judicial Discipline can be found at this link. (Mike Frisch)

March 7, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)