The bar and prejudice to the administration of justice

In most states, a former judge remains subject to judicial discipline authorities for their conduct on the bench; approximately 8% of public sanctions in 2022 involved former judges.  However, a judicial conduct commission may sometimes decide not to exercise its jurisdiction over a former judge, and in some states, the commission’s jurisdiction ends when a judge’s time on the bench is over.  See Before and after the bench:  Part 2,” Judicial Conduct Reporter (NCSC fall 2015).

Former judges may be sanctioned in bar discipline proceedings for misconduct while they were judges.  Those cases usually cite the state’s equivalent of Rule 8.4(d) of the American Bar Association’s Model Rules of Professional Conduct:  “It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.”

4 public dispositions in 2022 were attorney discipline sanctions of former judges, and there have been 2 so far in 2023.

  • Based on an agreement, the Arizona Supreme Court Attorney Discipline Probable Cause Committee publicly admonished a former judge for contacting the county attorney’s office regarding potential employment while still a judge, failing to supervise court staff, and engaging in unprofessional communications with court staff.  In the Matter of Otis, Order of admonition and costs (Arizona Supreme Court Attorney Discipline Probable Cause Committee October 20, 2022).
  • Granting a petition for consensual license revocation, the Wisconsin Supreme Court revoked the license of a former judge based on his conviction, entered following a guilty plea, on 2 federal felony counts of distribution of child pornography.  In the Matter of Blomme, 982 N.W.2d 100 (Wisconsin 2022).  The judge had resigned shortly after pleading guilty.
  • Accepting a joint petition for consent discipline, the Louisiana Supreme Court suspended a former judge from the practice of law for 1 year and 1 day based on an investigation of allegations that, while he was a judge, he touched several women and acted inappropriately in the courtroom.  In re Williams, 341 So. 3d 527 (Louisiana 2022).  The Court noted that, in July 2018, it had disqualified the judge from performing judicial functions pending complaints made to the Judiciary Commission but that jurisdiction had “passed” to the Office of Disciplinary Counsel when the judge resigned in February 2020 before judicial discipline proceedings concluded.
  • Based on a decision by the Alabama Supreme Court, the State Bar publicly reprimanded a former judge and an attorney for engaging in an affair while the attorney was routinely appearing before the judge. Alabama Bar v. Kaminski (Alabama Supreme Court February 25, 2022). In 2019, the Judicial Inquiry Commission had filed a complaint against the judge based on the affair, but, after the judge resigned, the Court of the Judiciary accepted a stipulation in which the now-former judge agreed to never again seek judicial office in the state and the Commission agreed to dismiss its complaint.  In the Matter of Kaminski, Final judgment (Alabama Court of the Judiciary August 6, 2019).

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Based on a report and recommendation of the hearing board of the Attorney Registration and Disciplinary Commission, the Illinois Supreme Court disbarred a former judge for sexually harassing a police officer, a court reporter, and an assistant state’s attorney while he was a judge.  In re Araujo, Order (Illinois Supreme Court January 17, 2023).  In 2020, the judge had resigned after the Courts Commission found following a hearing that the judge had engaged in a pattern of inappropriate and harassing behavior toward the same three women referred to in the bar discipline case, but continued the question of sanction to allow more argument

While a female Chicago police officer was getting his signature on a search warrant, the then-judge had attempted to kiss her on the lips, grabbed her hand, and told her, “Touch my butt.”  On another occasion, he made lewd comments to the same officer when they met at her squad car about another search warrant.  On 2 occasions, the judge had suggestively approached a female court reporter when they were alone in a courthouse elevator and asked how much money it would take for her to have sex with him.  In addition, in a conversation with an assistant state’s attorney in his chambers, the judge had called another female assistant state’s attorney, who had been his law school classmate, a “bitch” because she had failed to congratulate him on his promotion to a new courtroom or to say hello to him.  He added:  “Maybe it’s because I didn’t have sex with her.  Or maybe it’s because I did have sex with her.”

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Following a hearing on charges filed by the Office of Chief Disciplinary Counsel, the Missouri Supreme Court suspended a former judge from the practice of law for 2 years for, during his unsuccessful 2018 re-election campaign, threatening to file an ethics complaint against a potential opponent if she decided to run against him and threatening to disclose a former client’s confidences.  In re Prewitt (Missouri Supreme Court January 31, 2023).  After he lost the election, the judge had resigned “to protect his judicial pension and save attorney fees” prior to a hearing on allegations filed by the Commission on Retirement, Removal and Discipline, although it is not clear whether those allegations were related to his conduct in the 2018 election.

In 2014, Kristen Burk ran against the judge, who was the incumbent.  Directly before the election, Burks distributed a flier with the heading:  “PREWITT…WORKING TO MISLEAD VOTERS.”  The judge won re-election.

In 2018, after deciding to run against the judge again, Burks had conversations with her pastor, her law partner, and a former police chief that caused her to believe that the judge planned to use her husband’s infidelities as an issue in the campaign.  For example, she was told that the judge had said that if she ran against him, “things were going to come out in this next election that maybe hadn’t before,” that the campaign would be “a bloodbath,” and that he did not believe Burks wanted her children to find out about her husband’s affairs.

Burks also found an anonymous letter addressed to her daughter that crudely described her husband’s infidelities.  Burks believed the judge was responsible for the letter.  After contacting authorities, she met with the judge at a restaurant and recorded their discussion with a device provided by the FBI.

Their conversation was heated.  The judge denied knowing about the letter, and there is no evidence that he was involved. 

But the Court found that the judge had attempted to coerce Burks not to run against him during their meeting.  It explained:

First, he threatened that Burks’ filing would result in him filing an ethics complaint against her based on the previous campaign.  Second, he threatened to give speeches and send out fliers in which he would call her husband a “predator.”  Intertwined in this threat was Prewitt’s intention of making a point that Burks’ children, who were unaware of the affair, would be certain to learn of it.

The judge had said to Burks, “You file against me, next day, [the flier] goes down to the ethics commission,” and the Court held that a judge’s “threat to file an ethics complaint against a lawyer, if and only if that lawyer decides to oppose him in an election, is impermissible.”  It stated:

Prewitt’s intention to file the complaint showed either (1) he believed Burks’ prior campaign information violated the Rules or (2) he meant to harass her with a complaint that did not rise to a Rules violation.  If Prewitt believed the prior campaign material warranted reporting . . . , he had an obligation to file the complaint.  Yet he held it in abeyance. . . .  A judge’s threat to file a required ethics complaint, at his discretion and for his benefit, destroys public confidence in the independence, integrity, and impartiality of the judiciary; is an abuse of the prestige of judicial office for personal benefit; and is prejudicial to the administration of justice.

The judge had told Burks at the restaurant “I know a lot of things” when referring to his representation of one of the women with whom her husband had had an affair.  The Court found that this was a threat to disclose a former client’s confidences to help his campaign and violated the rules of professional conduct.

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