Thursday, July 17, 2014

Split Ohio Supreme Court Indefinitely Suspends Convicted Judge

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

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

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

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

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

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

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

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

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

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

The dissenters would have  disbarred McCafferty.

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

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

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

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

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

(Mike Frisch)

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


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

The Finger Lake Times reported on the charges

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

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

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

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

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

The suspension is with pay. (Mike Frisch)

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

Wednesday, July 16, 2014

Pennsylvania Judge Faces Misconduct Charges

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

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

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

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

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

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

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

Wednesday, July 9, 2014

Driving Judge Oldfield

From the web page of the Ohio Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Scene and Heard had this report. (Mike Frisch)

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

Apparent Conflict

A recent judicial ethics opinion from South Carolina

  OPINION NO. 10 - 2014

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


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


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


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

(Mike Frisch)

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

Thursday, June 26, 2014

A Fine Line

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

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

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

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

(Mike Frisch)

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

Judge Removal From Office Upheld

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

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

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

The court

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

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

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

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

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

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

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

Monday, June 23, 2014

Dead Wrong

The Florida Judicial Ethics Advisory Committee opines


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



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

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

(Mike Frisch)

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

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)