Tuesday, February 14, 2023

Nothing But Speculation And Innuendo

The Tennessee Court of Appeals affirmed the denial of a motion to recuse a judge who had engaged in an ex parte communication with an attorney who was his former judicial clerk

Following a hearing on the issue of attorney’s fees resulting from a discovery dispute, the trial judge or his office contacted an attorney for the defendants to obtain certain discovery responses that had not been filed with the court. The defendants’ attorney responded by email with the requested documents, carbon-copying plaintiffs’ counsel on the email. The trial court then entered an order awarding the plaintiffs attorney’s fees in which the fees awarded were only a small portion of those requested. The plaintiffs filed a motion to recuse, citing the communication between the defendants’ attorney and the trial judge. The trial court denied the motion for recusal. We agree with the trial court’s ultimate conclusion that recusal was not required.

The story

What occurred next is the central focus of this appeal. According to Appellants, between September 7 and September 12, 2022, the trial judge, Joe P. Binkley, Jr., contacted counsel for Appellees, Christopher B. Fowler, concerning the pending matter. There is no dispute that Attorney Fowler is the trial judge’s former law clerk. According to Appellants, the exact nature of the communication has never been disclosed.

What is known is that on September 12, 2022, Attorney Fowler sent an email to the trial judge’s judicial assistant attaching certain discovery documents that had apparently been requested by the trial judge.

Opposing counsel was copied on the response.

The court

The question in this case, however, is not whether the trial court committed a legal error when it relied on these discovery responses in its order awarding attorney’s fees to Appellants. See Duke, 398 S.W.3d at 668. Nor is the ultimate question whether the interaction between Appellees’ counsel and the trial judge constitutes an ex parte communication prohibited by our rules of judicial conduct...

Here, while the trial court’s action may have been myopic, as it led to the present recusal effort, Appellants have not presented anything that would cause us to depart from the reasoning employed by the Patterson and Runyon panels when faced with very similar fact patterns. Indeed, like in those cases, Appellants have presented nothing but speculation and innuendo to suggest a lack of impartiality on the part of the trial judge. In this case, the trial court did nothing more than ask to be supplied with discovery responses that, although they had not yet been filed with the court, all parties had been privy to and no party now disputes. This request was directly in response to Appellants’ efforts to obtain attorney’s fees related to the parties’ discovery dispute and was merely meant to confirm what was argued at the September 2022 hearing. Moreover, counsel for Appellees promptly and properly informed counsel for Appellants when it submitted the requested documents to the trial court. Under these circumstances, even if we assume that the trial court’s communication constituted an impermissible ex parte communication, we cannot conclude that the trial court’s action would cause a reasonable person to question its impartiality. We therefore affirm the trial court’s decision to deny Appellants’ recusal motion.

(Mike Frisch)


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