Saturday, June 29, 2019

Court Of Last Resort

An opinion of the Florida Judicial Ethics Advisory Committee

Opinion Number: 2019-19
Date of Issue: June 25, 2019

ISSUES

May a judge accept a friend's offer of a free stay in a suite at a resort property, which suite has been provided to the friend by an attorneys' association holding a conference at the resort.

ANSWER: Yes.

FACTS

The inquiring judge and the judge's family have been offered the opportunity to join a friend, free of charge, for a stay at a popular resort. The friend is sufficiently close to the judge that Canon 3E of the Code of Judicial Conduct would disqualify the judge from hearing any cases in which the friend might be interested.

The judge's friend is the president of an association of attorneys who represent governmental entities. The association is holding a conference at an upscale resort property and the friend has been given a suite of rooms during the conference. He has invited the judge and the judge's family to stay with him and his family in the suite.

Reasoning

a  judge may accept a gift, bequest, favor or loan, pursuant to Canon 5D(5)(h) of the Code of Judicial Conduct, only if:

1. the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge;

2. its value exceed (sic) $100, the judge reports it in the same manner as the judge reports compensation in Section 6B; and

3. the donor makes the presentation to an individual judge, rather that (sic) all the judges in the same area or court.

After analysis of all of the above factors, and consideration of who should be deemed the source of the gift, a majority of the committee concluded that, despite the involvement of the organization, the gift proposed is one from the judge's friend. The close relationship of the friend would prohibit him from appearing before the judge, bringing the gift within the exception contained in Canon 5D(5)(e), allowing the judge to accept the offer.

Even though the gift may properly be accepted, a number of the committee members felt that the judge should be reminded that some gifts, though acceptable, should perhaps be graciously declined. Present in a suite with the president of a partisan attorney's group, the judge could find himself or herself in the middle of a conversation that led to discussion of a case pending before the judge or about interests that might come before the judge. The possibility for such situations always exists, of course, but may be amplified in the setting in which the judge would be found. Other unanticipated situations could arise that would place the judge in an uncomfortable position. Further, the judge's presence at an exclusive resort, at no cost to the judge, could raise questions in the minds of parties unaware of the true nature of the gift and could provide ammunition for those seeking grounds to criticize the judge. The title of Canon 2 of the Code of Judicial Conduct states that a judge shall avoid the appearance of impropriety in all of the judge's activities. While a reasonable person with full knowledge of the details of the proposed gift would not find any appearance of impropriety in the gift, those without full knowledge or those with malicious intentions might state otherwise. Only the judge can make the final decision about whether the gift is worth the complications it might entail.

(Mike Frisch)

June 29, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, June 28, 2019

"A Pattern Of Discourtesy And Uncontrollable Incivility"

The Maryland Court of Appeals has suspended a judge for misconduct described in the court's headnote

Having reviewed the record, the Court of Appeals held that, under the circumstances, the Maryland Commission on Judicial Disabilities’ conclusion that the Honorable Devy Patterson Russell committed sanctionable conduct was supported by clear and convincing evidence. From 2007-2015, Judge Russell failed to handle and process search warrant materials in a manner consistent with Maryland Rule 4-601 and internal courthouse procedures. Moreover, Judge Russell instructed a law clerk to destroy the warrant materials. In addition, she repeatedly yelled at court clerks and judges. She subjected court clerks to lineups when clerical mistakes were made, and on one occasion physically pushed a clerk. Judge Russell also repeatedly attempted to undermine the authority of the administrative judge of her court and judges delegated administrative duties.

Her conduct occurred in the courthouse and often in the public view. Furthermore, her conduct had sweeping effects on the courthouse to which she was assigned, fostering an uncomfortable, unprofessional, and tense work environment. Her conduct exhibited a pattern of discourtesy and uncontrollable incivility that had pervasive effects on the administration of justice in the District Court of Maryland located in Baltimore City. As demonstrated herein, a judge may be disciplined if he or she engages in a pattern of inappropriate and discourteous behavior. Here, the appropriate sanction for Judge Russell’s misconduct is a consecutive six-month suspension without pay, with her reinstatement conditioned upon her completion of remedial measures set forth by this Court.

The judge sought to suppress evidence seized in the courthouse

Here, according to Judge Waxman, Respondent’s search warrant materials were discovered in a courthouse where Respondent had not worked for approximately two  months. The boxes were labeled “Russell” and “Civil,” and they were found in an unsecure location. Judge Waxman explained, and neither party disputes, that “[t]he boxes were found in the law clerks’ office . . . not in a judge’s chambers.” The office was “the judges’ clerks’ office where there’s a little portion of the clerks’ office that’s been set aside for the law clerks, but it’s all one big area.” In that location, the boxes were accessible by individuals working inside and outside of the judiciary. In sum, Respondent stored her boxes of warrants unsecure and in a high-traffic area that was outside of her personal workspace and immediate attention. As a result, Respondent cannot claim a reasonable expectation of privacy in the boxes, as is necessary to prevail on her Motion to Suppress. Therefore, we conclude that Respondent’s Motion to Suppress was properly denied pursuant to the Fourth and Fourteenth Amendments to the United States Constitution, Articles 22 and 24 of the Maryland Declaration of Rights, and Md. Rule 4-601.

In a footnote, the court questioned whether the exclusionary rule would be available in judicial misconduct proceedings.

No basis to dismiss

We are unpersuaded that the host of legal theories that Respondent asserts warrant dismissing the charges against her. The Maryland Rules do not set forth a statute of limitations for when the Commission must commence disciplinary proceedings against a judge. Rather, the Rules afford the Commission broad discretion to discipline “sanctionable conduct,” defined as “misconduct while in office, the persistent failure by a judge to perform the duties of the judge’s office, or conduct prejudicial to the proper
administration of justice.” Md. Rule 18-401(k)(1). In addition, the allegations of judicial misconduct brought against Respondent have not been the subject of a prior action before any tribunal which resulted in a final judgment.

Furthermore, we cannot fathom, and Respondent does not articulate, how it is prejudicial or unfair to Respondent for the Commission to hold her accountable for conduct that she committed while serving as a judge, albeit before her reappointment in 2016. Given that Respondent is serving as a Maryland judge, she is subject to the authority of the Commission and this Court for disciplinary matters.

Before the court on the merits

In her Exceptions, Respondent objected to nearly all of the Commission’s findings of fact and conclusions of law. For purposes of organization, we have divided the Commission’s findings of fact and conclusions of law, and Respondent’s objections thereto, into two categories: (1) Search Warrant Issues; and (2) Interpersonal Issues.

A misconduct finding was warranted as to the warrants

Here, however, Respondent utterly failed to fulfill her duty under Md. Rule 4-601 to file executed warrants with the clerk’s office. She also admittedly failed to comply with the internal policy that prohibited a judge from signing a search warrant return for another judge unless the two judges were assigned to the same court when she handled a search warrant return for Judge Gordon. Moreover, her nomad boxes were kept in a public area, accessible to numerous individuals inside and outside of the judiciary. Her inattention demonstrates a disregard for the critical nature of search warrants and her duties under Md. Rule 4-601.

The court recites the evidence of discourteous interactions with staff and other judges

In essence, the Exceptions reflect that Respondent views herself as the victim and a problem solver. She asserts that members of the District Court’s administrative staff, including Ms. Brown and Ms. Walker, simply do not like her. Respondent characterizes her conduct as solving problems, ensuring competent, efficient service to the public, and engaging in “lively discussion.” Respondent maintains that her actions did not constitute sanctionable conduct.

Concluding

When handling clerical errors, Respondent failed to maintain an equanimous demeanor. Lacking a modicum of civility, Respondent was eruptive, disrespectful, and demeaning toward courthouse staff. Respondent yelled at, accused, and humiliated staff members. She physically shoved an employee of the judiciary, Ms. Brown. Respondent’s erratic behavior occurred in front of litigants and lawyers. Likewise, Respondent repeatedly yelled at her colleagues, and did so in front of other judges, court staff, and members of the public. She interrupted an ongoing trial presided over by another judge to address a scheduling matter, which not only violated internal operating procedures, but disturbed the ongoing proceedings in that court. On multiple occasions, Respondent defied the directives of administrators and supervisors, and even attempted to undermine their authority. On one occasion, Respondent accused her Chief Judge of threatening her without cause.

Respondent exhibited a pattern of divisive, combative, and volatile interpersonal issues. Her conduct is unbecoming of a member of the judiciary, and it fails to maintain the demeanor that our Rules require of judges...

We, therefore, uphold the Commission’s conclusions of law and overrule Respondent’s exceptions thereto.

More than a personality clash

Respondent, indeed, has exhibited a pattern of incivility that has had demonstrated adverse effects on the District Court where she sits. The Commission has pointed to 15 judges and several members of the courthouse staff who came forth to testify in this proceeding about Respondent’s behavior from 2007-2015. Her colleagues identified no less than 13 instances in three years (2014-2017) where Respondent exhibited disrespectful and demeaning behavior, many instances of which were in public. Her conduct resulted in a toxic environment. Collectively, her colleagues described that, when working in the same courthouse as Respondent, the atmosphere was hostile, tense, dysfunctional, stressful, and unpleasant. They explained that when Respondent is in the vicinity, judges tend to keep to themselves, close their doors, and “[e]verybody is walking on eggshells.” Her conduct, according to her District Court colleagues, “has created . . . a division and divide among [their] bench.”

The supervisors who serve on Respondent’s court have attempted to remedy administratively the situation. Chief Judge Morrissey met with Respondent in April 2015 and asked her to work to get along with her colleagues. Respondent failed to adjust her behavior. Chief Judge Morrissey also sought recourse with the human resources department, and eventually he arranged for mediation to be held between Respondent and one of her colleagues. Again, Respondent failed to adjust her behavior. Despite his efforts,  Chief Judge Morrissey received information from more than a dozen District Court judges who indicated that they were in contentious relationships with Respondent. Respondent has demonstrated a pattern of violating the Maryland Rules. Her misconduct has fostered an uncomfortable work environment in the District Court, yet Respondent has maintained an unwillingness to alter her conduct. The widespread effects that her misbehavior has had on the administration of justice warrants this Court’s sanction...

We set as conditions precedent to Respondent’s reinstatement of her duties as a judge that Respondent shall: (1) submit to a health care evaluation, to be performed by a qualified health care professional or professionals who are acceptable to the Commission and, ultimately, this Court, for a complete emotional and behavioral assessment; (2) fully cooperate in the health care evaluation and comply with the recommended course of treatment, including counselling, if any; and (3) if and when Respondent applies for reinstatement, she shall provide, to the Commission and ultimately this Court, a written report from the evaluating health care professional or professionals as to her current medical condition, including any reason for which she should not be reinstated as a judge of the District Court. In addition, Respondent’s reinstatement is conditioned upon her satisfactory completion of an approved course on judicial ethics as recommended by the Commission.

Oral argument video linked here. 

The Baltimore Sun recently reported on new allegations against the judge.

District Court Judge Devy Patterson Russell is accused of violating the state’s rules of judicial conduct. The commission’s investigative attorneys allege she used her influence as a judge to try to embarrass a colleague, Judge Catherine “Katie” Curran O’Malley.

Russell, a district judge since 2006, has long disliked O’Malley, two other judges testified on Monday.

Russell faces a six-month suspension from an earlier case, in which the commission found she yelled at other judges and staffers, pushed a courthouse employee and neglected search-warrant paperwork.

The commission recommended the suspension in November, finding that her behavior and comments “were undignified, uncooperative, discourteous, demeaning, and clearly demonstrate a pattern of serious violations of the Maryland Code.” But it’s up to the Maryland Court of Appeals to decide whether to impose the suspension — and the court has not yet ruled.

At issue this time is an incident that happened in O’Malley’s courtroom in January 2015.

Investigative attorneys say Russell spread a rumor that that O’Malley had used profanity toward a citizen in the courtroom, telling others at the courthouse that O’Malley used “the F-bomb.” They alleged that Russell tried to influence bailiffs to change a report about the incident.

Russell’s alleged conduct, investigative attorney Tanya C. Bernstein said at the hearing, “demonstrates a lack of respect for the office she holds.” Russell is accused of breaking rules about promoting confidence in the judiciary, cooperating with other judges and avoiding using the prestige of office for personal interest.

Russell’s attorney, William C. Brennan, Jr., emphasized she never leaked any information to the news media about the incident and said there would be no testimony that Russell instructed a bailiff what to write in the report. ­

(Mike Frisch)

June 28, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, June 27, 2019

What 25 Years On The Bench Gets You

The New Jersey Appellate Court held that ex parte communication with a judge required recusal and merits relief in a civil case involving an alleged breach of a promise to hire the plaintiff

The judge disclosed the ex parte communication in chambers, and confirmed it on the record. In summary, one of the judge's former law clerks,  who was an associate at the defense firm, contacted the judge by text to inquire if she was available to preside over the trial. The judge apparently had no prior connection to the case, which involved significant pre-trial motion practice. The former clerk identified the senior attorney at her firm who would try the case. The judge understood that the attorney liked to appear before her. The judge then spoke to the presiding judge and, relying on her seniority, secured assignment of the case.

When plaintiff's counsel learned that the judge's assignment of the case resulted from an ex parte contact with defense counsel, he sought the judge's recusal.

The judge explained

[Defense counsel's] firm had hired a prior law clerk of mine . . . I think that was five years ago . . . I told both counsel that [she] had texted me this morning saying that [defense counsel] was waiting around for a judge and I said well I'll be in and I'd love to take the case.

In the course of the on-the-record colloquy, the judge later added that she requested the assignment from the presiding judge:

I'll go further. I stopped in this morning and said, "You got a case around here, because I'm a senior Judge, I don't like doing car accident cases." So in some ways I get my pick. . . . Because that's what 25 years on the bench will get you.

It may get you an appearance of impropriety

Judge-shopping – an attorney's attempt to have a particular judge try his or her case – may undermine public confidence in the impartial administration of justice...

Our Supreme Court has expressed its disapproval of defendants' manipulation of the system to secure the removal of a judge they dislike. See, e.g., State v. Dalal, 221 N.J. 601, 607-08 (2015). It is just as damaging to the integrity of the judicial process when parties secure, without the opposition's knowledge or consent, the assignment of a judge they prefer. When the judge affirmatively facilitates his or her selection by that one party, public confidence and the appearance of impartiality are further undermined.

The repair

We conclude that public confidence will be restored by our leaving in place the jury's findings; vacating the trial judge's rulings challenged on appeal and cross-appeal; deciding those issues de novo or in the exercise of original jurisdiction; and remanding for a new trial on damages.

The unidentified judge has retired. (Mike Frisch)

June 27, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, June 26, 2019

Prohibition Yes Mandamus No

The Ohio Supreme Court has granted a writ of prohibition but denied a writ of mandamus in a matter that flowed from a judge's arrest

This is an original action by relator, WBNS 10-TV, Inc., for writs of prohibition and mandamus against respondent, Franklin County Common Pleas Domestic Relations Court Judge Monica Hawkins. Judge Hawkins agrees that a writ of prohibition should issue, and we hereby grant a writ of prohibition. We deny the request for a writ of mandamus in Count One of 10-TV’s complaint as moot, deny the requests in 10-TV’s emergency motion for peremptory writs of prohibition and mandamus as moot, and grant the parties’ stipulated application to dismiss Count Two.

On Thursday, January 31, 2019, Judge Hawkins was arrested for driving under the influence. On February 4, a reporter for 10-TV made a written request for media access to the proceedings in Judge Hawkins’s courtroom scheduled for that same day. Judge Hawkins denied the request without conducting the requisite closure hearing. Her entry denying 10-TV’s request was based on the ground that 10-TV did not give court personnel sufficient advance notice. However, when 10-TV asked Judge Hawkins’s bailiff for a copy of the court’s docket for the next day so that it could make a more timely request for media access, the court refused.

On February 6, 2019, 10-TV commenced an original action seeking writs of prohibition and mandamus. Specifically, in Count One of the complaint, 10-TV sought a writ of prohibition, a writ of mandamus, or both to prevent Judge Hawkins from closing her courtroom unless and until she complied with the procedural requirements for doing so. And in Count Two, 10-TV sought a writ of mandamus to compel Judge Hawkins to produce the requested docket in compliance with Ohio’s Public Records Act. At the same time that 10-TV filed the complaint, 10-TV also filed a motion for a peremptory writ of prohibition or mandamus.

In accordance with an order from this court, on February 12, Judge Hawkins filed an expedited response to 10-TV’s complaint and emergency-relief motion. In her response to Count One of 10-TV’s complaint, she wrote that she “agrees to the issuance of a peremptory writ of prohibition requiring compliance with Sup.R. 12 and associated case law.” In response to 10-TV’s demands for writs of mandamus to compel the release of public records, Judge Hawkins affirmed that “all public records requested by [10-TV] have been provided” and that it was her understanding that the mandamus requests would be dismissed as moot.

...we grant a writ of prohibition, deny the request for a writ of mandamus in Count One as moot, deny the motion for peremptory writs as moot, and grant the application to dismiss Count Two.

(Mike Frisch)

June 26, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, June 17, 2019

No Stay Of Judicial Misconduct Proceedings For Indicted Judge

The Kentucky Supreme Court rejected a judge's appeal of three motions denied by the state Judicial Conduct Commission

We recognize from the outset that the burden is upon Judge Maze to prove that her circumstances require that the JCC proceedings against her be deferred during her criminal prosecution. Unquestionably, the facts underlying the criminal prosecution appear to overlap with the facts underlying the misconduct charges against her in the JCC proceedings. So far in the criminal prosecution, Judge Maze has been indicted, arraigned on all charges, and pleaded not guilty. A pretrial conference is now set for September 17, 2019, and a trial date for November 12, 2019.

Justification for moving forward

As of now, Judge Maze has been on paid suspension from her duties as circuit judge since October 2, 2018.

The JCC’s interests in proceeding without impediment include: (1) maintaining the integrity of the state’s judicial system by the faithful discharge of its constitutional mandate to regulate the conduct of persons responsible for the administration of justice in this Commonwealth; and (2) disposing expeditiously of all pending matters before the JCC within the time constraints imposed by SCR 4.000, et seq. The JCC’s interests correspond with the public’s interest in the prompt resolution of the misconduct charges against Judge Maze. The public’s interest further demands: (1) minimizing disruption of routine court business to the citizens of the 21st Judicial Circuit and the Commonwealth; (2) reducing the additional expenditure of state funds for special judges deployed to the 21 st Judicial Circuit to continue the work of the court while Judge Maze remains suspended; and (3) reducing length of time Judge Maze receives a full judicial salary and benefits while incapable of performing any judicial duties.

Judge Maze argues that she will suffer increased difficulties because of the parallel criminal charges and disciplinary charges: (1) the quandary of asserting her Fifth Amendment right against self-incrimination and defending herself fully in both proceedings; (2) the financial strain of defending two suits; and (3) the overlap of evidence from the disciplinary proceeding allowing its use in the criminal case and vice versa. These difficulties are no greater for Judge Maze than for any judge confronting parallel disciplinary and criminal charges. And any financial burden on Judge Maze does not appear to increase if the JCC proceedings proceed without further delay.

Holding

In sum, the balance of equities in this case favors allowing the JCC to move ahead with its disciplinary proceedings. The overarching public interest in an expedited resolution of disciplinary proceedings against a sitting judge furthers the goal of maintaining the public’s trust and confidence in the judiciary while, at the same time, minimizing expense and inconvenience to the public. These interests outweigh the burden of parallel proceedings suffered by Judge Maze. Upon full review of the record, we hold that the JCC did not err in denying Maze’s motion for a stay.

Justice Keller dissented

Here, not only have criminal indictments been returned against Judge Maze, but her criminal trial has been scheduled for November of this year. A stay would therefore delay the JCC proceeding for only a few months. The brevity of this delay weighs in favor of entering the stay.

As did Justice Lambert

Because the public and the judiciary are fully protected by the temporary measures taken by the JCC and the Chief Justice, there is no compelling state interest, thus the stay pending her criminal case should be granted.

Her criminal charges, which overlap the JCC charges, are two counts of Second-Degree Forgery and one count of Tampering with Public Records. These charges are the result of her signing two orders for a drug test on her ex-husband for two different hospitals.

Justice Wright dissented on the court's jurisdiction to entertain the appeal.

WKYT reported on the criminal charges.

The judge has filed suit against the JCC and its actors in federal court.

The facts of this case, while somewhat complicated, have exposed a path which the Defendants have chosen to follow in their quest to remove Judge Beth Lewis Maze from her position as Circuit Judge for the 21st Judicial Circuit, a path which is intended to benefit others involved in a conspiracy. The conduct of the Defendants, Defendants who have acted in concert with each to violate Judge Maze’s rights, is conduct which should be rejected, conduct which should never be tolerated by a civil society, especially when individuals acting under the color of law choose to abuse their positions of trust for the sole purpose of destroying the reputation of a public servant, and to do so simply to achieve goals which the Defendants could not accomplish at the ballot box.

The facts of this case should shock the conscious of all those who believe in the integrity of the legal system. The facts of this case should for once act as a means to pull back the curtain on the secret proceedings of the Kentucky Court of Justice, Judicial Conduct Commission, and finally expose the unregulated power of those who hide behind the impenetrable curtain of the Judicial Conduct Commission. The facts of this case will finally expose the secret proceedings to the light of day and allow the public to have a voice, and more importantly, to allow those who find themselves in the crosshairs of the Judicial Conduct Commission which will permit them to avail themselves to a public trial envisioned by the Founding Fathers.

 (Mike Frisch)

June 17, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, June 10, 2019

"The Whole System, Quite Frankly, Sucks"

The New York Commission on Judicial Conduct has accepted the resignation of a town and village court justice for injudicious remarks at a village board meeting.

From the stipulation

On or about October 13, 2015, Respondent attended a Wolcott Village Board meeting at which public concerns regarding crime in the village were discussed. Village Mayor Christopher J. Henner, Village Police Officer-in-Charge Tom Ryan, two village trustees and several village residents were present during the meeting.

Respondent, who was introduced at the meeting as "Judge Stone," made the following public statements about the judicial system:

A. "To start with, the whole system, quite frankly, sucks."

B. "If they are a minor, I'm never going to see them because they are going to family court."

C. "After five days, if the county decides not to do [a] preliminary hearing, I have to release them. It doesn 't matter, it's not my choice. It's a lawyers' world."

D. "Most of these individuals, ifl had my way, you'd see them probably swinging outside the door, okay? That's the way I was brought up."

E. "But thanks to lawyers, everybody has rights."

On or about October 21 , 2015, a local newspaper, The Lakeshore News, quoted Respondent's public statements at the Wolcott Village Board meeting.

(Mike Frisch)

June 10, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, June 9, 2019

I Could Write A Book

A recent opinion of the Florida Judicial Ethics Advisory Committee

Opinion Number: 2019-18
Date of Issue: May 28, 2019

ISSUES

1. May a judge write a book that touches on matters related to family court, mental health and warning signs?

ANSWER: 

Yes. So long as the book does not cast reasonable doubt on the judge's capacity to act impartially as a judge; demean the judicial office; or interfere with the proper performance of judicial duties.

2. May a judge actively promote the book?

ANSWER: 

Yes. So long as the judge does not use the prestige of office to promote the book and neither the judge, the judicial assistant, nor a member of the judge’s family sells the book to any member of the Bar.

FACTS

The inquiring judge has for years sat on the family law bench and for years prior to that practiced in the area of family law. The judge recently closely observed a sensational criminal case that grew out of divorce proceedings in the judge’s jurisdiction. The case called into question the mental health of the defendant who was accused of a violent attack on a spouse. The judge believes mental health issues contributed to the criminal episode. The judge is interested in writing a book about family law courts and the sometimes-associated mental health issues. Specifically, the judge wants to discuss the “warning signs” that judges and litigants should be concerned about.

Cautionary tale

When writing or promoting a book, a judge must take precautions to make certain the judge does not intermingle the writing, promotion or sale of the book with court related obligations. We offer, as a cautionary tale, In re Hawkins, 151 So.3d 1200 (Fla. 2014). In In re Hawkins, Judge Hawkins operated a private business from which she sold religious themed items among them a book she authored. Id. at 1203. The supreme court found violations of several of the Canons because “clear and convincing evidence demonstrated that [Judge Hawkins] regularly used court resources, including the services of her judicial assistant, [to conduct the judge’s private] business at work and during working hours.” Id. at 1212. The evidence included lawyers and other court personnel purchasing the book at the courthouse. Id. Additionally,speaking engagements for the private business were coordinated using the judge’s work phone, work computer and were handled by her judicial assistant. Id. Judge Hawkins linked the sale of her business products to her judicial office by appearing on the business website wearing the judge’s judicial robe, exploiting the judge’s judicial position for personal gain. Id.

In sum, we agree the judge may promote and sell the judge’s book. However, the judge must not allow the promotion of the book to demean the judge’s office or call into question the judge’s impartiality. Additionally, neither the judge, the judge’s assistant, nor any member of the judge’s family may sell the book to members of the bar.2 The form of advertisement or promotion chosen by the judge or the judge’s publisher must not be presented in ways that: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) undermine the judge’s independence, integrity, or impartiality; (3) demean the judicial office; (4) interfere with the proper performance of judicial duties; (5) lead to frequent disqualification of the judge; or (6) appear to a reasonable person to be coercive. Fla. Code Jud. Conduct, Canons 4A, 5A.

(Mike Frisch)

June 9, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, June 5, 2019

Judge Was Bad Judge Of Character

The Indiana Supreme Court accepted a 45-day suspension of a judge who appointed a friend who turned out to be a untrustworthy trustee

We find that Respondent, the Honorable Robert W. Freese, Judge of the Hendricks Superior Court 1, engaged in judicial misconduct by appointing an unqualified friend as trustee of a trust and personal representative of a related estate, failing to disclose the friendship or a financial relationship with the friend, and failing to act promptly when faced with mounting evidence of the friend’s mismanagement and embezzlement of the funds entrusted to him.

The story

In 2004, Scott needed $122,400 to buy a home but had poor credit after a bankruptcy. Judge Freese used his line of credit to lend Scott the funds. On January 13, 2005, they executed and recorded a mortgage in that amount, and Scott gave the Judge a promissory note.

Seventeen days later, Judge Freese appointed Scott as trustee over the Herbert Hochreiter Living Trust in Trust of Herbert Hochreiter, No. 32D01- 9710-TR-000003. None of the parties objected, but the Judge never disclosed his financial arrangement with Scott.

Later in 2005, Herbert Hochreiter died, and an estate was opened with an estimated $2.3 million in real and personal property. Judge Freese took the matter under advisement after a hearing, and on October 24 appointed Scott as personal representative of the Estate. As before, none of the parties objected, nor did the Judge disclose his financial arrangement with Scott.

Over a period of years

the Judge had multiple indications of Scott’s poor performance: Summonses sent to Scott were returned to sender. Scott’s counsel requested the court’s guidance and intervention, reporting that Scott was unresponsive and that the Trust checking account contained only $8.27 and its savings account had been closed for over 6 months—when counsel estimated it should have $50,000 to $60,000 in cash. And one of the beneficiaries filed a detailed objection and multiple rules to show cause or contempt citations against Scott. Judge Freese “took no action or minimal action” on those reports. But while the cases were pending and Scott was living in Florida, he left Scott a phone message stating he was concerned that Scott was behaving bizarrely, and that he “would never have thought [Scott] would have stolen anything.”

The less than great Scott had run off with nearly $600,000 and the judge entered a judgment against him but

Judge Freese never referred those findings to the local prosecutor or to the United States Attorney. But Scott pleaded guilty in 2017 to federal charges stemming from his embezzlement, which took place from August 2007 through July 2011. The stolen funds remain unrecovered.

Level of culpability

Unlike typical violations of Rule 2.4(B), the Judge’s misconduct was mostly negligent, not willful...

But the Judge’s misconduct ultimately enabled a massive theft. First, appointing Scott violated Rule 2.13(A)(1)’s duty to make “appointments . . . impartially and on the basis of merit”—he lacked fiduciary experience and had been bankrupt recently enough to have poor credit. Subjectively, the Judge trusted Scott, as his loan shows. But objectively, Scott was utterly unqualified to be entrusted with a third party’s money; appointing him seems to have been driven by friendship, not merit. Then, that friendship clouded the Judge’s objectivity through seven years of warning signs— making him unreasonably credulous of, and lenient towards, Scott in the face of growing evidence of serious financial misconduct. If not for the Judge’s inaction, Scott’s theft likely could have been largely prevented.

After review of the precedents

The parties here have agreed to a 45-day suspension—squarely between the above guideposts. “The purpose of judicial discipline is not primarily to punish a judge, but rather to preserve the integrity of and public confidence in the judicial system and, when necessary, safeguard the bench and public from those who are unfit.” Hawkins, 902 N.E.2d at 244 (Ind. 2009). The sanction must be designed to deter similar misconduct and assure the public that judicial misconduct will not be condoned. Id. As the above cases illustrate, a 45-day suspension from office without pay is a very serious sanction, but we agree it is warranted here, in view of the serious harm to the Trust and Estate that were enabled by the Judge’s misconduct.

(Mike Frisch)

June 5, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, May 23, 2019

Anti-Trump Posts And Other Misconduct Get Judge Suspended In Utah

The Utah Supreme Court has suspended a judge for six months without pay

This judicial discipline proceeding requires us to decide the appropriate sanction for a judge who has engaged in repeated misconduct. Judge Michael Kwan acknowledges that he violated the Utah Code of Judicial Conduct when he made seemingly shirty and politically charged comments to a defendant in his courtroom. Judge Kwan similarly admits that he violated the code of conduct when he lost his temper with a member of the court’s staff and improperly used his judicial authority to seek that individual’s removal from the premises. Moreover, in response to questions at oral argument, Judge Kwan conceded that an online post critical of then-presidential candidate Donald Trump also violated the code of conduct. But Judge Kwan argues that the six-month suspension the Judicial Conduct Commission (JCC) recommends is inappropriate. He claims  that sanction rests, in part, on an unlawful attempt to regulate his  constitutionally protected speech, and he asserts that a less severe penalty is all that is warranted.

Judge Kwan raises important First Amendment questions, but he fails to address our case law holding that a judicial disciplinary proceeding is an improper venue to press those constitutional claims. Bound by our precedent, we therefore do not address the constitutional questions, and we limit our consideration to that portion of Judge Kwan’s online speech that he concedes we can permissibly sanction. That statement, coupled with the other misconduct before us, as well as Judge Kwan’s history of prior discipline, convinces us that a six-month suspension without pay is the appropriate sanction.

There were prior matters addressing the judge's behavior

Judge Kwan has served as a justice court judge for the City of Taylorsville for the past two decades. On multiple occasions, the JCC has reviewed allegations that Judge Kwan violated various provisions of the Utah Code of Judicial Conduct. As a result of the JCC’s investigations into those allegations, Judge Kwan has received two letters of education from the JCC and two public reprimands from this court. The Utah State Bar Ethics Advisory Opinion Committee has also issued two opinions relating to Judge Kwan— one not expressly naming him but directed to his conduct, and another issued in response to his questions regarding, among other things, rules limiting judicial commentary on statements made by a candidate for political office. See Utah State Bar Ethics Advisory Committee, Informal Opinion 16-02 (2016); Utah State Bar Ethics Advisory Committee, Informal Opinion 15–01 (2015).

This guidance has been animated by two general concerns regarding Judge Kwan’s behavior: his improper use of judicial authority and his inappropriate political commentary. The JCC’s letters of education addressed Judge Kwan’s abuse of judicial authority, which manifested in improperly revoking probation, imposing jail in absentia, and ordering excessive bail...

Our first public reprimand addressed Judge Kwan’s crass incourt reference to sexual conduct and a former president of the United States. During the underlying proceeding before the JCC concerning that comment, Judge Kwan acknowledged that the Utah Code of Judicial Conduct requires judges to be patient, dignified, and courteous to those with whom the judge deals in an official capacity. See UTAH CODE JUD. CONDUCT R. 2.8(B). He also acknowledged that his comments violated that requirement and constituted conduct prejudicial to the administration of justice.

Our second public reprimand addressed political activities associated with Judge Kwan’s service as president of a nonprofit organization. The organization took public positions on a range of issues, criticized candidates for political office, and posted articles and press releases online that included Judge Kwan’s name and
judicial title.

The November 2016 reprimand is linked here. 

Now

After the Utah State Bar issued these opinions, and shortly after we handed down our second public reprimand, the JCC began investigating additional potential misconduct. Specifically, the JCC investigated allegations that Judge Kwan: (1) made political statements in court, (2) handled a dispute with court personnel inappropriately, and (3) posted political comments online. During the investigation, Judge Kwan conceded that he had engaged in the behavior underlying the allegations.

An in-court comment on the tax cut drew judicial rebuke 

Judge Kwan contends that this was intended to be funny, not rude. It is an immutable and universal rule that judges are not as funny as they think they are. If someone laughs at a judge’s joke, there is a decent chance that the laughter was dictated by the courtroom’s power dynamic and not by a genuine belief that the joke was funny.

So true!

Also true with respect to work supervisors. 

As to current politics

With respect to Donald Trump, Judge Kwan’s postings were laden with blunt, and sometimes indelicate, criticism. In July 2016, for example, Judge Kwan posted an article entitled “Ghazala Khan: Trump criticized my silence. He knows nothing about true sacrifice.” Above the article’s headline, Judge Kwan added, “Checkmate.”

Examples

On November 11, 2016, three days after the presidential election, Judge Kwan remarked, “Think I’ll go to the shelter to adopt a cat before the President-Elect grabs them all . . . .”

On January 20, 2017, the day President Trump was inaugurated, Judge Kwan commented, “Welcome to governing. Will you dig your heels in and spend the next four years undermining our country’s reputation and standing in the world? . . . Will you continue to demonstrate your inability to govern and political incompetence?”

On February 13, 2017, Judge Kwan posted, “Welcome to the beginning of the fascist takeover.” He continued, “[W]e need to. . . be diligent in questioning Congressional Republicans if they are going to be the American Reichstag and refuse to stand up for the Constitution, refuse to uphold their oath of office and enable the tyrants to consolidate their power.”

The court

But the problem here is not primarily a concern that Judge Kwan has voiced his views on a range of political issues via his criticisms of Donald Trump. Far more importantly, Judge Kwan has implicitly used the esteem associated with his judicial office as a platform from which to criticize a candidate for elected office. Fulfillment of judicial duties does not come without personal sacrifice of some opportunities and privileges available to the public at large. And as a person the public entrusts to decide issues with utmost fairness, independence, and impartiality, a judge must at times set aside the power of his or her voice—which becomes inextricably tied to his or her position—as a tool to publicly influence the results of a local, regional, or national election.

Judge Kwan’s postings continue a pattern of inappropriate political commentary, as previously addressed in our second public reprimand, following Judge Kwan’s service as president of a national organization that, among other things, criticized candidates for political office. What’s more, the Utah State Bar Ethics Advisory Opinion Committee offered substantial guidance to Judge Kwan on this topic. Judge Kwan nevertheless engaged in behavior that violates our code of conduct, despite the prior attempts to dissuade him from that path.

We thus conclude, as did the JCC, that Judge Kwan has violated several rules of the Utah Code of Judicial Conduct. And he has engaged in conduct prejudicial to the administration of justice which brings a judicial office into disrepute. See UTAH CONST. art. VIII, § 13.

Sanction

We give significant weight to the fact that Judge Kwan has been the subject of prior discipline and the recipient of prior guidance. We note that previous endeavors to help Judge Kwan correct this behavior have not been successful. And we regretfully conclude that a sanction less severe than suspension without pay will suffer the same fate as our prior attempts. Repeated instances of misconduct are serious matters, which may render a judge not only subject to suspension, but also to removal from office. Judge Kwan’s
behavior denigrates his reputation as an impartial, independent, dignified, and courteous jurist who takes no advantage of the office in which he serves. And it diminishes the reputation of our entire judiciary. For these reasons, we implement the JCC’s order without modification.

Had to look up "shirty." It is in fact a word. (Mike Frisch)

May 23, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, May 19, 2019

Docket Clerk's Relationship Not Imputed To Judge

The South Carolina Advisory Committee on Standards of Judicial Conduct opines

A municipal court judge’s docket clerk is in a relationship with a law enforcement officer for the same municipality. The docket clerk is responsible for scheduling cases and documenting events that occur in cases while in open court. The docket clerk is also responsible for case management, including recording final dispositions in Municipal Court cases and following instructions from the municipal judge(s). The docket clerk appears in court regularly and may be present at the same time that the law enforcement officer the clerk is dating appears to prosecute traffic cases. The municipal court judge inquires as to whether he or she must disclose to all parties the relationship between the docket clerk and the law enforcement officer, or if the docket  clerk should be recused from handling those cases.

Negative

In this case, the judge is not actually involved in a relationship with the law enforcement officer, and there is no cause to question the judge’s impartiality. Furthermore, the docket clerk merely performs ministerial duties regarding case scheduling and management. Thus, there is no need to recuse the docket clerk from cases in which the law enforcement officer appears. Likewise, there is no need for the judge to disclose the relationship of the docket clerk and the law enforcement officer to all parties.

(Mike Frisch)

May 19, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, May 16, 2019

A Judge's (Ap)parent Conflicts

The Florida Judicial Ethics Advisory Committee opines

ISSUES

1. Whether a judge whose lawyer-parent is no longer associated with former law firm must continue recusing from the law firm’s cases.

ANSWER: No.

2. Whether judge whose parent owns building leased to a law firm must enter automatic recusal when the firm has a case before the judge.

ANSWER: Yes, unless the parent’s interest can be classified as de minimis.

FACTS

The inquiring judge has issued a blanket recusal on all cases involving the law firm where the judge worked before joining the bench because, until recently, one of the judge’s parents is a lawyer associated with the law firm. However, with the judge’s parent soon retiring, the judge asks whether the judge should continue to issue a blanket recusal on all of the firm’s cases. Additionally, the judge’s parent will continue to own the building where the law firm is a tenant. The inquiring judge asks whether that remaining economic relationship between the judge’s parent and the law firm mandates recusal.

Reasoning

The first question posed by the inquiring judge requires little discussion. The judge is no longer required to maintain the previously entered blanket recusal when the judge’s parent is no longer associated with the law firm, so long as there is no other reason that the judge’s impartiality could be reasonably questioned.

The answer to the second question posed by the inquiring judge is more nuanced, and one which this Committee has not previously addressed in the same context. The Committee has previously opined that a judge in an economic relationship, such as landlord-tenant, with a lawyer or law firm should issue an automatic recusal. See, e.g.,Fla. JEAC Op. 85-08 (in inquiry from judge with mortgage held by lawyer, who is now tenant in the building he sold to judge, JEAC opined that “in view of the extent of this relationship, both tenant/landlord and creditor/debtor, you should recuse yourself and not sit on cases involving this attorney”); Fla. JEAC Op. 97-33 (blind trust does not remove conflict of interest where judge rents space to a lawyer who appears before the judge); Fla. JEAC Op. 01-11 (judge who owns lakeside trailer used for fishing trips with elected State Attorney must disqualify himself from all cases involving the state attorney’s office).

The Committee has also addressed situations where the judge’s spouse or child has an economic relationship with a law firm. See, e.g., Fla. JEAC Op. 18-26 (“Numerous opinions of this Committee have indicated that disqualification is required when a spouse or child of the judge is a member of a law firm practicing before the judge. See, e.g., Fla. JEAC Ops. 97-0808-06. These holdings are based on the Committee’s conclusion that when a judge’s spouse or child is employed by a law firm appearing before the judge, the judge’s spouse or child has more than a de minimus economic interest that could be substantially affected by the proceeding. Fla. JEAC Ops. 08-0607-1606-2698-20.”). The analysis is markedly different, however, when the judge’s relative is employed by governmental agencies. See Fla. JEAC Op. 18-26 (“A different conclusion has been consistently reached by this Committee when faced with inquiries related to relatives employed by a state attorney, a public defender, or a legal aid office . . . [A] spouse or relative in a governmental position does not have a substantial interest in the outcome of the proceeding as might be the case if the spouse were employed in a private law firm where law partners or associates who share good will, profits, and losses are engaged in one another’s cases regardless of the identity of the attorney of record.”).

We have consistently noted that inquiries such as the one presented here must be decided on a case-by-case basis. See Fla. JEAC Op. 07-16 (“[I]ssues of disqualification involving law firms employing relatives of a judge should be resolved on a case-by-case basis with careful consideration given to the relationship between the relative and the law firm. If the relationship suggests that the judge’s impartiality might reasonably be questioned, or that the relative is known by the judge to have an interest in the law firm that could be substantially affected by the outcome of the proceeding, then the judge is disqualified. The present inquiry concerns a relative who is a student, non-lawyer, working part-time on an hourly basis, and has a de minimis interest in the firm and the proceeding. Under those circumstances, it is unlikely that the impartiality of the judge might reasonably be questioned.”).

Therefore, we advise the inquiring judge that recusal from cases involving the law firm which leases its office space from the judge’s parent is required unless the judge concludes that the judge’s parent’s interest in the economic well-being of the law firm is de minimis. The Committee believes that such a situation would be exceedingly rare. For example, if the law firm is not obligated to pay rent to the judge’s parent, then the judge could conclude that the parent’s interest in the firm is de minimis.

(Mike Frisch)

May 16, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, May 14, 2019

Oath Sworn Answers Not Required

The Nevada Supreme Court granted in part a judge's motion by holding that she need not respond to questions under oath in a pre-charges investigation

To be clear, a judge owes an ethical duty to "cooperate and be candid and honest" with the Commission. NCJC Rule 2.16(A). A judge must also "respond to [a] complaint in accordance with procedural rules adopted by the Commission." NRS 1.4667(3). But nothing in our statutes or the Commission's procedural rules authorize the Commission to demand that a judge answer questions under oath during the investigative phase, before a formal statement of charges has issued. We therefore grant Andress-Tobiasson's request for a writ of prohibition to prevent the Commission from requiring her to answer questions under oath at this preadjudicative stage of the disciplinary process.

To the extent Andress-Tobiasson asks that we forbid the Commission from asking her questions before a formal statement of charges, regardless of an oath requirement, we deny her petition. The Commission concedes that a response to its questions is voluntary and that it will not apply Procedural Rule 12(3)'s penalty of default to AndressTobiasson for failure to answer the written questions. See Commission Procedural Rule 12(3) ("Failure of the [judge] to answer the complaint shall be deemed an admission that the facts alleged in the complaint are true and establish grounds for discipline."). While Andress-Tobiasson still has ethical duties of honesty and cooperation, the lack of adjudicative consequences as to the charges under consideration for failing to respond to the questions alleviates the due process concerns amicus curiae suggest. See Jones, 130 Nev. at 105-06, 318 P.3d at 1083 (recognizing that there is an investigatory stage and an adjudicatory stage of judicial discipline proceedings and that "due process rights generally do not attach during the investigatory phase"). Furthermore, the complaint and the questions the Commission sent Andress-Tobiasson are not in the record and AndressTobiasson has not raised any other issues regarding the propriety of the specific questions posed to her. On this record, Andress-Tobiasson has not demonstrated that extraordinary relief is warranted to prevent the Commission from sending her written questions and asking her to voluntarily answer them during this stage of the disciplinary process.

The case is ANDRESS-TOBIASSON (MELANIE) VS. NEV. COMM'N ON JUDICIAL DISCIPLINE, decide May 10, 2019. (Mike Frisch)

May 14, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, May 7, 2019

'So is a romantic friend qualitatively different from an “ordinary” friend for purposes of judicial ethics? Perhaps so."

A recent opinion of the Florida Judicial Ethics Advisory Committee

ISSUES

WHETHER A JUDGE WHO IS INVOLVED ROMANTICALLY WITH AN ATTORNEY MUST DISCLOSE THAT RELATIONSHIP IN CASES WHERE ONE SIDE IS REPRESENTED BY THE FIRM THAT HAS A PROFESSIONAL RELATIONSHIP WITH THE ATTORNEY.

ANSWER: Yes.

WHETHER THE JUDGE MUST ALSO AUTOMATICALLY RECUSE FROM CASES INVOLVING THE FIRM WITH WHOM THE ATTORNEY IS ASSOCIATED.

ANSWER: No, but only so long as it is clearly established that the attorney derives no personal benefit from cases handled by other members of the firm and the judge is careful to observe strict objectivity in ruling on any motions to disqualify that may stem from revealing the relationship.

FACTS

The inquiring judge, who presides over a civil division, has developed a romantic relationship with an attorney who is associated with a law firm that regularly litigates in the judge’s division. We are given to understand that this relationship is of fairly recent commencement. The judge recognizes that recusal is mandatory in any cases handled by the attorney personally, but asks for guidance regarding cases handled solely by other lawyers from the same firm.

The inquiry provides the following additional information regarding the attorney’s relationship with the firm. The attorney is neither a partner nor a shareholder and does not share in the general proceeds of the firm’s revenue. Instead, the attorney keeps the revenue earned from the attorney’s own cases and then reimburses the firm for such expenses as support salaries. The judge acknowledges that circumstances could change whereby the attorney’s compensation could be handled in a different fashion, such as receiving bonuses or becoming a partner or shareholder, but such is not presently the case and we confine our analysis to the status quo.

DISCUSSION (a) Introduction

The recent controversy over “friending” on the social website Facebook has highlighted the potential for an appearance of bias, even where none may actually exist, on the part of judges who have personal relationships with attorneys who practice before them. See Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Association, -So. 3d -, 43 Fla. Law Weekly S565 (Fla. Nov. 15, 2018).1 This and other opinions, including many issued by this Committee, emphasize that a perception of bias must be viewed from the standpoint of a reasonable person regardless of how strongly a judge may believe in his or her own impartiality. Fla. Code of Jud. Conduct, Canon 2B cautions that a judge “shall not allow family, social . . . or other relationships to influence the judge’s judicial conduct or judgment,” and Canon 3E(1), after announcing the general principle that a judge should not hear cases “in which the judge’s impartiality might reasonably be questioned,” provides a number of examples of potential conflicts which may call for disclosure at least and possibly disqualification as well. Further, even where disqualification may not be called for across the board, Canon 3E(1) directs judges to disclose on the record any information that the judge believes the parties or their lawyers might consider relevant even if the judge personally does not believe there is a real basis for disqualification.

The law is quite clear with respect to a judge’s duties when a family member is the source of the potential conflict, and while a romantic companion is not a family member as defined in the Code, we choose to touch on the entire panoply of personal relationships that could affect a judge’s objectivity. As will be seen there is also decisional authority regarding intimate friends who are not related to the judge. This second area is perhaps not as clearly defined as one might wish for, but this unfortunate fact is more understandable when one accepts how different each personal friendship is, whereas familial relationships are clearly described in the Code.2 Speaking generally, all forms of close personal relationships impact a judge’s ethical duties in two ways. First, if the family member or close friend has “more than a de minimis interest” in the outcome of a case, the judge must recuse from that case unless the parties request remittal of disqualification. See Fla. Code of Jud. Conduct,Canon 3F. If, however, the person has no interest in the case, disclosure of the relationship is nevertheless appropriate.

(b) Cases Involving a Judge’s Family Members

The inquiring judge has read several opinions by this Committee, while acknowledging differences between those judges’ situations and the inquiring judge’s own. The opinions referenced in the judge’s query involve spouses and close relatives. Because the relevant Canons do not extend to persons whom a judge is merely dating, even exclusively, exhaustive analysis is not necessary. However, one never knows how a relationship may develop, and we think it wise to touch on some of those opinions if only for future guidance.

As noted, a judge’s responsibilities, when family members are in the picture, vary depending upon the circumstances. Even when the relative’s interest in a case is de minimis or nonexistent, disclosure of the familial connection is nevertheless encouraged.3 In addition, several opinions from this Committee have looked to the nexus between what the spouse or relative actually does and what kinds of cases the judge will be hearing. For example, in Fla. JEAC Op. 12-33, the judge’s spouse was legal counsel to the local Sheriff and the judge sat in a criminal division. The spouse mostly handled employment issues, which would have at most a tangential relationship to criminal cases.4 While we did not view recusal as necessary the opinion did note that the spouse was occasionally consulted on other legal matters as well. Understanding that one may not always be fully aware of what one’s spouse does at work, we advised the judge to disclose the relationship in all cases stemming from the Sheriff’s department, in case the spouse might have done work on a particular case. By contrast, in Fla. JEAC Op. 93-21, where the judge’s spouse was a managerial-level attorney for the state agency that prosecutes dependency petitions, we indicated that the judge should not consider going into a dependency division even though the spouse rarely if ever appeared in court, because the spouse’s work would still be inextricably intertwined with the judge’s. Cf. Fla. JEAC Op. 18-26, which stated that a judge did not have to leave a criminal division simply because the judge’s child was an Assistant Public Defender, so long as the child was assigned to a different criminal division.

Fla. JEAC Op. 18-26 adopted a common-sense approach that does not resurface when the judge is assigned to a civil division. Although, for purposes of conflict of interest, the Public Defender’s and State Attorney’s offices may be viewed as a “law firm”; see, e.g., Ward v. State, 753 So. 2d 705 (Fla. 1st DCA 2000); a government attorney generally has no personal stake in the outcome of a case. A judge’s handling of cases presented by other attorneys from the same agency should not affect the career standing of the judge’s relative. Further, in the case where the judge’s relative is involved in criminal defense, that relationship will be well known to the “firm” (i.e., the State Attorney) responsible for prosecuting all or most cases before the judge.

By contrast, civil cases tend to be randomly assigned if a given county or judicial circuit has multiple civil divisions, and these cases can draw attorneys from a much wider geographical area, some of whom may be unfamiliar with the judges with whom they will be dealing. Nearly all the attorneys practicing civil law will be private practitioners, and working for profit. As noted, the firm employing or associated with the inquiring judge’s new “significant other” is a civil firm regularly handling cases before the judge. The attorney whom the judge is dating will naturally have more than a de minimis interest in the cases the attorney handles personally and the inquiring judge has no intention of presiding over any such cases. From the judge’s description of how the attorney is compensated, it may be that the attorney does not directly benefit from whatever successes others in the firm may enjoy, even as it seems obvious that their business arrangement would not exist if both the lawyer and the firm did not consider it mutually beneficial.

(c) Cases Involving a Judge’s Personal Friends

The fact remains the inquiring judge and the attorney do not currently abide in a legal relationship - at least not yet. Instead, we must consider the ethical standards that apply when a judge and a lawyer are close friends. Fla. JEAC Op. 04-35 addressed the situation wherein the inquiring judge and the attorney were sufficiently close that the attorney voluntarily did not appear before the judge. The judge asked whether disclosure of the relationship was still required in cases where the attorney’s associate made an appearance. Our discussion opened with a reference to Fla. JEAC Op. 93-56: “The question of when a judge must reveal his close personal relationship with an attorney is very difficult to address. Judges are by definition attorneys and are not expected to remain socially apart from other attorneys.” We suggested the inquiring judge “evaluate whether the friendship with this particular attorney consists merely of socializing or whether, possibly, the attorney has also conferred or will confer gifts or other benefits on the judge.” If the latter, “the argument in favor of disclosure is certainly stronger” - if not outright disqualification. Further, the Committee perceived no difference when appearances before the judge were limited to other members of the friend’s firm. “This is in keeping with the general rule that a conflict of interest with one attorney extends to all members of that attorney’s firm.” Fla. JEAC Op. 89-08.

(d) Are Romantic Relationships Different From Friendships?

Our research has found only a few opinions touching on past and present romantic involvement between a judge and an attorney or frequent witness. Fla. JEAC Op. 08-03 involved a former fiancé of the inquiring judge. The judge asked whether recusal would be required in cases where the former fiancé serves as a forensic CPA expert (the judge was heading into a family division and the expert often testified in those cases). We decided in favor of recusal and, further, advised the judge also to disclose that the ex-fiancé’s CPA firm leased space from a partnership in which the judge was a general partner. In so stating we distinguished these facts from Fla. JEAC Op. 03-14, in which the judge was assigned to a criminal division and the judge’s former fiancé performed psychological evaluations for criminal defendants. While the romantic relationship had ended over ten years before the inquiry was sent, the judge and the psychologist remained friends. It is the length of time that the Committee found most significant in Fla. JEAC Op. 03-14. “[B]ecause of the passage of time . . . and their subsequent remarriages, there [is] no reasonable basis to assume the judge would be influenced to appoint the psychologist because of the prior . . . engagement.” Even so, the Committee believed then, and believes now, that the advisability of disclosing that prior relationship should be ascertained by “whether an objective, disinterested person, knowing all the circumstances, would reasonably question the judge’s impartiality.” By contrast, in Fla. JEAC Op. 08-03, the engagement had ended less than three years before the judge’s inquiry. Whether their relationship had ended badly was not discussed but should not have made any difference.

So is a romantic friend qualitatively different from an “ordinary” friend for purposes of judicial ethics? Perhaps so. Subtending the holding in Fla. JEAC Op. 08-03, if not expressly stated, is a recognition that romantic relationships can sometimes cloud one’s judgment or become volatile. Even if that never happens to this couple, we have taken note of In re Adams, 932 So. 2d 1025 (Fla. 2006), in which a judge was disciplined for having permitted an attorney to appear before the judge on a frequent basis despite being involved romantically with the judge. Such conduct, the Supreme Court wrote, “necessarily depletes the single most important source of his or her authority - the perception of the legal community and public that the judge is absolutely impartial in deciding cases” even if the judge in question was not found to have actually shown favoritism in the attorney’s cases and, in fact, had an otherwise “unblemished record.”

We are quick to repeat that the inquiring judge does not plan to hear cases in which the attorney with whom the judge shares a romantic relationship is personally involved. This is one of the reasons we have concluded that the circumstances provided by the inquiring judge demand disclosure of the relationship. We have also considered the description of the attorney’s business relationship with the firm, but the judge is strongly cautioned to ensure that the attorney does not personally benefit from cases handled exclusively by other members of the firm. Disqualification would be required if the facts were otherwise. Finally, we note that while the disclosure of the relationship may not automatically require disqualification, and thus that decision must be made on a case-by-case basis, the judge cannot lose sight of the laudatory goals these Canons are intended to accomplish. The judge should not be surprised if motions to disqualify are filed and must not take it personally when they are but instead strive always to view any motions objectively, and from the perspective of the clients whose interests are at stake.

(Mike Frisch)

May 7, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, April 30, 2019

Donate Yes, Auction No

Two new opinions of the Florida Judicial Ethics Advisory Committee

Opinion Number: 2019-15
Date of Issue: April 12, 2019

ISSUES

1. Whether a judge may participate in a Habitat for Humanity fund-raiser by donating baked goods that will be auctioned off during the event.

ANSWER: Yes, judges may donate items to a fund-raiser as long nothing reveals that the item was donated by a judge.

2. Whether a judge may participate in a Habitat for Humanity fund-raising event by serving as an auctioneer of the donated baked goods who will “get on stage to entertain the attendees in some fashion to encourage bids.”

ANSWER: No.

FACTS

The Inquiring Judge has been invited to provide baked goods that will be auctioned off during a fund-raising event for Habitat for Humanity. The non-law-related charity also asked that the Inquiring Judge act as an auctioneer who will “get on stage to entertain the attendees in some fashion to encourage bids” for the judge’s donated baked goods. All proceeds go to Habitat for Humanity.

Opinion Number: 2019-14
Date of Issue: April 10, 2019

ISSUES

Whether the inquiring judge has a duty to report an attorney to The Florida Bar in circumstances where representations made to the court by the attorney during a judicial proceeding were known by the inquiring judge to be false.

ANSWER: In the circumstances presented, Canon 3D(2) requires the inquiring judge to report the attorney for misconduct to The Florida Bar.

FACTS

A judge has inquired whether there is an ethical obligation under the Code of Judicial Conduct to report an attorney for misconduct to The Florida Bar based on the following facts. The inquiring judge was presiding over probation violation proceedings in which defense counsel, mid-way through a series of hearings, insisted that the client/defendant did not speak or understand English; could not proceed without the assistance of an interpreter; and could not have willfully violated the applicable probationary conditions because the defendant never understood those obligations as a result of the alleged language issue. The inquiring judge knows the lawyer’s representations are false. Specifically, the inquiring judge knows, based on record evidence, that the lawyer’s client/defendant previously acknowledged in open court that the client speaks English well enough to be comfortable conducting court matters in English, the defendant always spoke English with probation officers without apparent difficulty, the client never requested a translator before, and the lawyer knew when making the contrary allegations that the client/defendant speaks and understands English.

The inquiring judge is concerned that the lawyer’s breach of his duty of candor to the tribunal may have been so egregious as to call into question his honesty and trustworthiness as a lawyer.

(Mike Frisch)

April 30, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Judge Charged With Child Rape Suspended

The Tennessee Court of Judicial Conduct has imposed an interim suspension of a judge charged with a felony.

Clarksville Now reported

Judge Woodrow Adams was charged with three counts of rape of a child. Tennessee Ridge Mayor Stony Odom said Stewart County deputies took Adams into custody.

The Mayor said that while the judge serves in Tennessee Ridge, which is in Houston County, he lives in Stewart County. Prior to his move to Stewart County, he lived in Dickson County.

Mayor Odom says the town is in shock and that Judge Adams is very well known and liked in the area. Adams has served as a city judge and recorder for over 20 years.

(Mike Frisch)

April 30, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, April 25, 2019

Jesse's (Former) Girlfriend

The Mississippi Supreme Court has reprimanded a judge

On July 17, 2017, Jesse Burton—a justice court judge for the Southern District of  Coahoma County—filed an affidavit claiming his former girlfriend had stolen money and personal property from him. Based on this affidavit, another justice court judge issued an arrest warrant for Judge Burton’s girlfriend, Regina Burt. But before the warrant was served, Judge Burton changed his mind and instructed the clerk’s office to rescind the warrant that the other judge had issued. As directed, the deputy clerk replaced Judge Burton’s girlfriend’s name on the warrant with Jane Doe and instructed the sheriff’s office not to execute it.

He was cooperative

This was Judge Burton’s first disciplinary matter before the Commission in his twenty seven-year career as a justice court judge. And the Commission recommended he be publicly reprimanded and fined $500. After a hearing, the Commission adopted the agreed stipulation of facts and recommended sanction in a five-to-one vote. The Commission and Judge Burton filed a joint motion, asking this Court accept the Commission’s findings and recommended sanctions.

The court found willful misconduct

Judge Burton’s situation is unusual. He is both the complainant who filed an affidavit supporting an arrest warrant and the judge whose interference kept the warrant from being executed. Still, as this Court has pointed out many times, the justice courts are the public’s main—if not only—contact with the judicial system and if justice court judges do not act professionally, the public will not understand or respect the legal process...

When legal disputes arise, the public must have confidence they will be decided by an impartial jurist. By acting in an official capacity in a case in which he was a party and had a conflicting interest, Judge Burton acted improperly. Such conduct erodes the public perception of the judiciary. Judge Burton could have simply withdrawn his complaint, rather than using his judicial position to snuff out the arrest warrant. And in addition to the judicial canons, Judge Burton agreed he violated Mississippi Code Section 97-11-1, which prohibits falsifying or erasing public records.

(Mike Frisch)

April 25, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, April 18, 2019

It's My Party

A recently installed judge has been reprimanded by the Florida Supreme Court

In May of 2018, Judge Kollra and his opponent sat together for an interview with the Sun Sentinel newspaper editorial board. Judge Kollra was asked about his personal political affiliation, and he responded that he is a registered Republican. The same question was posed to Judge Kollra’s opponent, and he declined to answer. Although the newspaper did not ultimately publish information about Judge Kollra’s political affiliation, he understood that they could have. . . .

A second incident occurred just a few weeks later, in June of 2018. On June 13, 2018, Judge Kollra attended a judicial candidate forum that was advertised as an “endorsement event” for the Dolphin Democrats. The Dolphin Democrats is a partisan political organization . . . . Judge Kollra was subsequently notified that he had received the official endorsement of the Dolphin Democrats. On June 24, while participating in a judicial candidate forum hosted by the Hills Democratic Club, Judge Kollra concluded his stump speech by telling the attendees that he had recently received the endorsement of the Dolphin Democrats.

The violation

The JQC explained that Canons 7C(3) and 7D “very clearly and unambiguously” prohibit partisan political conduct by judges or candidates for judicial office.

Sanction for partisanship

Judge Kollra is a relatively new judge, and having been first appointed in 2016, and this was his first ever foray into an election of any kind. He has no prior disciplinary record with the Commission.

He was admitted to [T]he Florida Bar in 1978, and has maintained an exemplary and, heretofore, unblemished record as a licensed attorney. Further, Judge Kollra admitted to his misconduct, and has cooperated with the Commission in all respects during this inquiry. He deeply regrets that his conduct could have degraded the public’s perception of the impartiality and nonpartisan nature of judicial elections. He hopes to rectify this, in part, by taking responsibility for his misconduct, and accepting the sanction.

(Mike Frisch)

April 18, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, April 14, 2019

Gods and Judges

The Florida Judicial Ethics Advisory Committee opines

Opinion Number: 2019-10
Date of Issue: March 28, 2019

ISSUES

1. May a judge who has become president of a religious organization meet with potential new members to solicit membership?

ANSWER: Yes, as long as the solicitation cannot reasonably be perceived as coercive, is not essentially a fundraising mechanism, and such potential new members or people with whom they are affiliated are not likely ever to appear before the Court for which the judge serves.

2. May the judge solicit direct donations to the religious organization?

ANSWER: No, unless the solicitation is limited to other judges over whom the judge does not exercise supervisory or appellate authority.

3. May the judge sell tickets to the religious organization’s fundraiser?

ANSWER: No, unless the sales are limited to other judges over whom the judge does not exercise supervisory or appellate authority.

4. May the judge thank donors at fundraisers and receptions for major donors?

ANSWER: No.

5. May the judge “urge” members of the religious organization to attend various organizational fundraisers and other functions?

ANSWER: Yes, for “other functions”, no for “fundraisers”. It is permissible for the judge to urge members to attend functions that are not fundraisers, however “urging” members to attend fundraising events may be reasonably perceived as coercive, utilizing the prestige of the judicial office for fundraising purposes.

6. May the judge announce to the members of the religious organization various upcoming events, including fundraisers occurring at the location of the organization.

ANSWER: Yes.

(Mike Frisch)

April 14, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, April 11, 2019

The One Lawyer Rule

After a lengthy hiatus the Florida Supreme Court is issuing opinions again.

One involves the public reprimand of a judge

During a felony criminal trial, Judge Dennis Daniel Bailey ordered his courtroom deputy, loudly and in front of the jury, to remove one of the defendant’s attorneys from a sidebar conference. He then improperly denied the defendant’s disqualification motion. Judge Bailey and the Judicial Qualifications Commission have stipulated that he violated the Code of Judicial Conduct and should be publicly reprimanded.  We approve the stipulation.

There were two defense attorneys

[w]hen one of the attorneys tried to help his colleague articulate a point during the sidebar, Judge Bailey repeatedly attempted to quiet him by saying, “One lawyer at a time,” “Only one lawyer argues,” followed shortly thereafter by, “You have a hard time understanding me? Two lawyers can’t argue one argument.”

There was no standing order that only one attorney per side was allowed to argue a point, and this was the first time Judge Bailey communicated such an order to counsel.

As the attorney who was trying to help his colleague started to say, “Judge I mean no disrespect,” Judge Bailey raised his voice over the “white noise” that he turned on during the sidebar conversation and ordered his courtroom deputy to approach the bench and “return this attorney to his table.” “The attorney immediately retreated away from the sidebar and back to counsel table as soon as he saw the deputy approaching.” Had the attorney not retreated to counsel table, Judge Bailey “would have allowed the deputy to use physical force, ‘if necessary.’ ” All of this was “in full view and hearing of the jury.”

Ms. Espejo’s non-removed attorney then moved for time to file a disqualification motion. Judge Bailey allowed a forty-five-minute break to draft and file the motion to disqualify, and then denied it as legally insufficient. Judge Bailey improperly denied the motion because he believed it was a “trial tactic” and he could be fair to the parties. He “did not consider the motion from the defendant’s perspective when considering whether or not to grant it.”

In the judicial misconduct proceeding, the judge admitted he had behaved intemperately.

A mitigator

Judge Bailey, on his own, signed up for stress management counseling “so that in the future, he is better equipped to handle stressful situations, and does not resort to knee-jerk reactions.” He has also apologized, in writing, to Ms. Espejo’s attorney for what happened during the trial.

He also had no prior record of judicial discipline. (Mike Frisch)

April 11, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, April 10, 2019

The Philadelphia (Judge) Story

The Legal Intelligencer reports on sanctions imposed on two former judges by the Pennsylvania Supreme Court

Former Philadelphia Court of Common Pleas Judge Angeles Roca and former Philadelphia Municipal Court Judge Dawn Segal have both had their law licenses suspended for one year and one day.

The Pennsylvania Supreme Court issued separate orders Tuesday adopting the recommendations of a three-member panel of the Disciplinary Board, which were based on joint petitions in support of discipline on consent filed by the Office of Disciplinary Counsel, the two ex-judges and their counsel.

A suspension of more than a year means both Segal and Roca will need to reapply to have their law licenses reinstated.

Roca and Segal were found in 2016 to have violated the state constitution and the Code of Judicial Conduct by engaging in ex parte contact with former Municipal Court Judge Joseph C. Waters Jr., who was later charged criminally and sentenced to 24 months in prison for fixing cases of political donors.

They were initially suspended from the bench before eventually being removed and barred from ever holding public office again by the Court of Judicial Discipline in December 2016.

The CJD determined that Segal violated four judicial canons and three articles of the state constitution, including prohibitions against engaging in ex parte communications, allowing others to believe they could influence her, failing to report the communications, failing to disqualify herself, and interfering with the normal operations of the court.

The charges focused on allegations that Waters contacted Segal four times, and asked for special consideration in the cases of Houdini Lock & Safe v. Donegal Investment Property Management ServicesCommonwealth v. Khoury and City of Philadelphia v. Rexach, a tax enforcement case against Roca’s son, Ian Rexach.

The CJD found that Roca’s actions brought her office into disrepute, prejudiced the proper administration of justice and failed to promote confidence in the integrity and impartiality of the judiciary.

Roca contacted Waters in 2012, seeking to enlist his aid in having the tax enforcement complaint issued against her son dismissed, according to the CJD’s October 2016 opinion. She asked Waters to intervene in the matter by contacting Segal, which he did. Segal later told Waters that she “took care of it,” and the case was ultimately withdrawn by another judge without prejudice.

Roca, Waters and Segal were unknowingly being recorded by the FBI during their phone calls.

The joint petitions in support of discipline on consent for both Roca and Segal noted that, unlike most Pennsylvania judges who have been removed from the bench in the past, neither were ever charged with or convicted of a crime, and neither engaged in criminal conduct.

Still, the board found their cases were most closely related to that of former Lancaster County Magisterial District Judge Kelly Ballentine, who was suspended on consent for one year for dismissing her own traffic tickets in 2010 and 2011.

The board said there were differences between Ballentine’s case and those of Segal and Roca. For one, Ballentine pleaded guilty to three counts of misdemeanor tampering charges. For another, Ballentine was suspended from the bench for 15 months and placed on probation for 18 months, while Segal and Roca were both removed and barred from office.

However, the petitions said, all three former judges engaged in misconduct that benefited themselves.

“While there are variance’s between Ballentine’s and respondent’s case,” both petitions said, “in looking at all the factors, and the sanctions imposed by the Court of Judicial Discipline, there is support that a one year and one day suspension is appropriate in respondent’s case, and will subject respondent to the requirements of reinstatement pursuant to Rule 218, Pa.R.D.E.”

Roca’s attorney, Samuel Stretton of West Chester, said his client and the Office of Disciplinary Counsel had initially agreed to a one-year suspension, but the Disciplinary Board rejected that agreement.

“I thought it was wrong but it wasn’t worth fighting,” Stretton said, noting that the license reinstatement process can begin as early as eight months before the final day of suspension. “I’ll start her reinstatement in four months and I don’t think there’s any question that she’ll be reinstated.”

Counsel for Segal, Stuart Haimowitz of Philadelphia, could not immediately be reached for comment.

(Mike Frisch)

April 10, 2019 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)