Relationship disclosure

Although a judge is not automatically disqualified from a case involving a social acquaintance, a judge’s duty to disclose a relationship is triggered by ties far short of blood or marriage and far more often than some judges may think, as several recent judicial discipline cases illustrate.

In In re Brennan, 929 N.W.2d 290  (Michigan 2019), the Michigan Supreme Court removed a judge for, in addition to other misconduct, failing to disclose her close, personal relationships (1) with a police detective who was a witness in a murder case over which she was presiding; and (2) with an attorney when the attorney or her law firm appeared in cases over which the judge presided.

In the discipline proceeding, the master had concluded that the judge had a romantic relationship with the detective before and during a murder trial in which he was a witness.  The Court adopted the Judicial Tenure Commission’s conclusion that, regardless whether the judge’s relationship with the detective was romantic, it was “a very close, personal relationship” that required the judge “at a minimum” to disclose the facts so that the parties could determine whether to move for disqualification.  The judge had failed to disclose that:

  • She had socialized with the detective, allowed him to use her cottage, and had him as a guest at her home for dinner,
  • Her husband sometimes gave the detective his University of Michigan football season tickets at her urging,
  • She had told a member of her staff that the detective had persuaded her of the defendant’s guilt before the case was assigned to her in March 2009,
  • She and the detective had had more than 1500 social telephone calls between July 2008 and the start of the trial in January 2013,
  • She had talked on the phone with the detective for 1-2 hours every month in the year or so before the trial, and
  • She had exchanged approximately 400 texts with the detective from 2010 until the start of the trial.

In addition, the judge failed to disclose her close, personal relationship with Shari Pollesch in 5 cases in which Pollesch appeared as counsel and 5 cases in which attorneys from Pollesch’s firm appeared; the judge also denied 2 motions for disqualification based on her relationship with Pollesch.  The judge had failed to disclose that:

  • She considered Pollesch one of her best friends, and they had known each other for about 25 years,
  • She and Pollesch took ski trips together, participated in a book club, took walks during lunch, and were guests at each other’s cottages,
  • She provided her home for Pollesch’s wedding,
  • Pollesch provided legal services to the judge’s husband’s business, to the judge’s husband personally, and to the judge’s sister, and
  • Pollesch was one of 3 friends who had submitted statements to the Commission on the judge’s behalf in 2009.

* * *
In Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019), the California Commission on Judicial Performance publicly censured a former judge and barred him from holding judicial office for, in addition to other misconduct, (1) ordering defendants to use an alcohol monitoring service without disclosing that his son worked for the company and that the owner was a friend and (2) appointing an attorney as a special master without disclosing that the attorney was a personal friend.

In 5 cases, the judge released a defendant charged with an alcohol-related crime on the defendant’s own recognizance on the condition that the defendant participate in a monitoring program; in all of the cases, the judge failed to disclose that his son worked at CHI Monitoring, LLC, the only local provider of the service.  The judge’s son installed the device, monitored for violations, wrote reports for the court, and set up payments, receiving a commission for every participant he worked with.  The Commission concluded that the judge’s son’s employment was reasonably relevant to the question of the judge’s impartiality and, thus, that he was required to disclose the relationship before ordering a defendant to participate in the program.

In addition, the Commission concluded that the judge should have disclosed his relationship with the owner of CHI, Charles Holland.  The Commission accepted the judge’s characterization of the relationship as “more professional than social,” but concluded the relationship “went further than being members of the same professional organization or having contacts at professional events.”  The judge had failed to disclose that:

  • Prior to taking the bench, the judge had represented Holland, and Holland had referred clients to him,
  • Holland had been to his home and attended strategy meetings his judicial campaign, and
  • The judge as one of Holland’s Facebook friends.

Disclosure was required by “the totality of these circumstances,” the Commission concluded, even if each fact taken alone did not require disqualification.

In addition, the judge appointed Bradley Clark as a special master in a matter concerning easements for a development without disclosing that:

  • He and “Clark were friends who socialized together, at times with their spouses,”
  • He had received gifts from Clark,
  • His nephew was employed by Clark, and
  • He had officiated over Clark’s wedding.

The Commission concluded that “knowing these facts, a party might have thought the judge would be more inclined to approve Clark’s findings and recommendations,” and, therefore, the judge had, at minimum, a duty to disclose the relationship before appointing Clark.

The judge sat in a “small legal community,” where most of its members, “are likely to have known about the social relationship between the judge and Clark,” but none of the parties had objected to the appointment.  The Commission concluded, however, that “in determining the need to disclose, the same standard applies regardless of the size of the community.”  It explained:

By their terms, the canons impose uniform statewide standards.  Whenever an assigned case involves a party the judge “knows,” the judge must be particularly vigilant to ensure the appearance and reality of independence and impartiality.  The situation may arise more frequently in a small town than a major metropolitan area, but the judge’s ethical duties are the same irrespective of population statistics.

The risk of applying a different disclosure standard in a small community based on the assumption that the parties and the attorneys know the judge’s relationships “is that there may be someone involved in the proceeding who, in fact, does not know about the relationships.” . . .  Moreover, the purpose of disclosure is not only to inform the attorneys and parties of information that may be relevant to disqualification but to uphold the integrity and impartiality of the judiciary.

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In In the Matter of Kaminski, Final judgment (Alabama Court of the Judiciary August 6, 2019), the judge stipulated that, while he was involved in a romantic relationship with an attorney, he had appointed the attorney to cases, taken judicial action in cases in which she was attorney of record, and entered attorney’s fee declaration orders for her benefit, in addition to other misconduct.  The judge had resigned after the formal complaint was filed and agreed never to seek judicial office in the state again and to pay $2,346.60 in costs.

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