Category Archives: Diligence

Repeated failure to address and decide issues

Posted on by

For the second time in 2019, a judge, or in the second case a former judge, has been disciplined for mishandling an estate case.  The first sanction was imposed on a judge who appointed an unqualified friend as a trustee and personal representative in a case without disclosing their friendship and financial relationship and failed to respond promptly to evidence of his friend’s mismanagement and embezzlement.  In the Matter of Freese, 123 N.E.3d 683 (Indiana 2019).  That case was discussed in the post, “Willful ignorance, unreasonable credulity, and misappropriation” published on July 2.

More recently, based on stipulated facts and conclusions of law, the Vermont Judicial Conduct Board publicly reprimanded a former judge for failing in a probate case to complete all hearings as noticed, to follow-up and enforce orders, or to hold the guardian accountable.  In re Lewis, Public reprimand (Vermont Judicial Conduct Board September 6, 2019).

In February 2010, the judge appointed 1 of 5 siblings as the financial and medical guardian for their mother, who had dementia.  The estate was valued at $2,433,058, with significant real estate holdings, personal property, and accounts in 10 financial institutions.

The guardian filed each annual accounting late, and 3 of his siblings objected to each accounting, noting that the guardian was paying himself prior to filing.

In September 2016, following numerous hearings, 3 of the siblings filed a 67(b) notice and a motion for contempt.  (Rule 67(b) provides for proceedings “when it appears to the court that a fiduciary has failed to comply with procedures required by law or court rule, or that the estate is not being promptly and properly administered . . . .”)  In a hearing, the judge stated that he may have “been too permissive about allowing things to go on” and expressed his displeasure and frustration with the guardian’s failure to comply with his orders and apparent inability do what he told him to do.  However, the judge did not take any action but encouraged the parties to engage in mediation.

In March 2018, the parties reported that the mediation had not been successful.  The judge entered an order “taken in large part” from a document submitted by the attorney for the 3 siblings in September 2016.  The judge had had all of the evidence about the guardian’s failures by August 25, 2016, at which time there had already been over 5 years of complaints about the guardian’s accounting and behavior.  By 2018, the guardian had paid himself over $250,000.

The stipulation concluded that the judge had not done “everything a Judge should and could have done to dispose of the matters before the Court promptly, efficiently, and fairly.”  The reprimand stated that the judge’s “repeated failure to address and decide issues” related to the guardian’s conduct caused the other siblings “to incur significant attorney fees and resulted in inefficient use of both parties’ and the Court’s resources . . . .”  The Board emphasized the judge’s “chronic failure to hold the guardian accountable for his actions . . . while allowing him to pay himself enormous amounts of money over 7½ years, despite repeated filings that brought such issues to the Court’s attention . . . .”  The Board noted that the facts suggest, although not conclusively, that the judge’s failure to dispose of the matter “promptly, efficiently and fairly may have also resulted in the unnecessary depletion of assets to the detriment of [the siblings].”

To hear and decide

Posted on by

Recently, the California Commission on Judicial Performance publicly admonished a judge for delegating his responsibility to conduct case management conferences to his court clerk.  Public Admonishment of Hiroshige (California Commission on Judicial Performance October 24, 2018).

Case management conferences are scheduled to address items such as what discovery issues are anticipated, whether discovery is complete, the nature of the injuries, the amount of damages, and any additional relief sought, as well as ministerial issues, such as the setting of a jury trial date.  Counsel for represented parties and each self-represented party must appear by telephone or personally and must be prepared to discuss and commit to the party’s position on the issues unless a judge issues a case management order based on the parties’ written submissions after determining that a conference is not necessary and notifying the parties.

In contrast, the judge’s practice was to review the parties’ written submissions and provide his notes to the court clerk for use during the conference at which the parties were still required to appear.  In 2010, the Commission privately admonished the judge for this practice.

The judge continued the practice despite the private admonishment.  In response to the Commission, the judge explained that, after the private admonishment, he posted a notice in his courtroom advising counsel and parties that he had reviewed all submitted case management conference statements and indicated to the clerk the range of dates that should be scheduled in each case, that “[t]he clerk will meet & confer with counsel/parties and attempt to schedule dates in court that are agreeable to all parties,” and that, if there is any disagreement, “please request to discuss the issue with the court.”

The Commission found that, as noted in the private admonishment, the judge’s practice violates the requirement that a judge “hear and decide all matters assigned to the judge except those in which he or she is disqualified.”  The Commission stated that the judge’s “[i]mproper delegation of judicial responsibilities to the court clerk constitutes misconduct” and “dereliction of duty.”

The Commission explained that the judge’s “practice of having his clerk meet with parties and counsel and convey his decisions in court gives the appearance that the clerk, rather than the judge, is running the court.”  Further, it stated, discussions between the judge and parties or counsel can effectively resolve issues that may not have been apparent from the written submissions, and, therefore, “an appearance before a judge at a case management conference can be more efficient and effective in terms of the disposition and management of a case than issuing an order without an appearance before a judge.”

The fall 2016 issue of the Judicial Conduct Reporter has an article analyzing previous discipline cases involving improper delegation of adjudicative responsibilities.