In several recent judicial discipline cases, part-time judges were sanctioned for their conduct as attorneys.

In In the Matter of Senzer, 150 N.E.3d 21 (New York 2020), the New York Court of Appeals removed a part-time judge from office for repeatedly using language in 9 emails to 2 clients that was degrading, profane, vulgar, and sexist and that insulted their daughter, opposing counsel, and the presiding court attorney referee, including “an extremely crude gender-based slur to describe opposing counsel.”  The Court’s opinion does not specifically describe the language the judge used but accepted the determination of the State Commission on Judicial Conduct, which has detailed findings.  The judge sent the emails to 2 parents he was representing in a family court matter against their daughter in which they were seeking visitation rights to their grandchild.

The Court held that the judge’s “statements were manifestly vulgar and offensive, and his repeated use of such language in written communications to insult and demean others involved in the legal process showed a pervasive disrespect for the system, conveyed a perception of disdain for the legal system, and indicated that he is unable to maintain the high standard of conduct we demand of judges.”  It emphasized that the judge was “acting as an officer of the court representing clients in an ongoing litigation—a professional function integral to our legal system.”  The Court also explained that the judge’s “derogatory comments impugned not just the particular referee involved in this case but all judges, and with it, the judiciary.  In this context, petitioner’s conduct undermined the dignity and integrity of the judicial system.”

“Especially disturbing,” the Court stated, was the judge’s “use of an intensely degrading and ‘vile’ gendered slur to describe a female attorney” and his “demeaning reference to her as ‘eyelashes.’”  The Court noted that “it is critical to our judicial system that judges ‘conduct themselves in such a way that the public can perceive and continue to rely upon the impartiality of those who have been chosen to pass judgment on legal matters involving their lives, liberty and property.’”  The Court found that the judge’s misconduct was not “an isolated or spontaneous slip of the tongue, as the statements—repeated multiple times—were included in deliberative, written communications petitioner made to these clients relating to their legal representation.”

The Court also concluded that the judge’s belief that the emails would not be shared did not excuse his conduct, explaining, “because judges carry the esteemed office with them wherever they go, they must always consider how members of the public, including clients or colleagues, will perceive their actions and statements . . . .  Petitioner’s clients with whom he had a professional relationship are indisputably members of the public despite any personal relationship he had with them.”  The Court also emphasized that the judge’s “derogatory statements directly targeted the legal system and its participants writ large, and, thus, cannot be divorced from his judicial role, notwithstanding that petitioner communicated them when off the bench. . . .  A judge’s role is to cultivate respect for the judicial process and its participants—petitioner did just the opposite.”

In 2002, the Commission had issued the judge a letter of dismissal and caution for making sarcastic, disrespectful comments during a court proceeding.

The Court concluded:  “Such a pattern of conduct, engaged in over several months and combined with a prior caution by the Commission . . . constitutes an unacceptable and egregious pattern of injudicious behavior that warrants removal.”

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Accepting an agreed statement of facts and recommendation, the New York Commission publicly censured a part-time judge for, in addition to other misconduct, while acting as a private attorney in a civil case, making an insensitive remark about a co-defendant’s ethnicity and asserting his judicial office when confronted about the remark.  In the Matter of Tawil, Determination (New York State Commission on Judicial Conduct December 12, 2019).

The judge appeared as a private defense attorney in the liability phase of a bifurcated trial in a personal injury case involving a car accident.  The judge represented 2 defendants; a co-defendant was of Hispanic descent.  Judge Genine Edwards presided over the trial.

On March 8, during his summation, the judge stated:

On the other hand, you have Mr. Batista.  He’s on the phone talking to his female girlfriend or someone.  He’s selling cell phones to his passenger, he’s listening to the radio, he said they’re having a good time in the car.  They’re having a good time and he’s paying attention to the passenger, to his girlfriend, probably to the radio.  For all we know, he could be frying up some platanos in the front seat [emphasis added].  We don’t know.  But he’s not paying attention to the road, what’s going on around him, okay.

The next day, before the jury was charged, Judge Edwards conducted an off-the-record conference with the judge and his client’s insurance adjuster in chambers.  During the conference, Judge Edwards told the judge that his summation remark about “platanos” was “racist” and said, “What’s going to happen now is your client is going to pay $25,000 to settle this case right now or I am going to report you to the Appellate Division Second Department.  That’s your license counselor.”  The judge replied that he was “a current Part-Time Town Justice” and that he would never “intentionally make a racist comment.”  The judge would testify that he was fearful of the threat and nervous when he said this.

The judge subsequently asked the Advisory Committee on Judicial Ethics whether he was required to report Judge Edwards to the Commission; the Committee advised that he was.  In filing a complaint against Judge Edwards, the judge described his own conduct to the Commission, and the Commission also authorized an investigation of Judge Tawil’s own conduct.

The Commission found that Judge Tawil’s summation included “a demeaning remark” that “showed an insensitivity to the special ethical obligations of judges and detracted from the dignity of judicial office.”  The Commission acknowledged that “all attorneys (including those who are judges) have wide latitude in presenting argument to the jury,” but emphasized that “the tone of the comment and the assertion of his judicial office warrant a finding of misconduct.”

(In a separate proceeding, the Commission also publicly censured Judge Edwards, based on a stipulation, finding that her “explicit threat to complain to disciplinary authorities regarding Tawil’s summation comment in an effort to induce Tawil’s client to settle the matter pending before her for a specific amount was coercive and improper” and “weaponize[ed] her obligation to take appropriate action regarding substantial attorney misconduct . . . .”  In the Matter of Edwards, Determination (New York State Commission on Judicial Conduct October 23, 2019).)

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The Arizona Commission on Judicial Conduct publicly reprimanded a pro tem judge for providing false information to law enforcement investigating her client.  Gillis, Order (Arizona Commission on Judicial Conduct January 11, 2020).

In a family law matter, the judge was representing an individual who was subject to an order of protection that prohibited third-party contact.  Law enforcement investigated the judge’s client for an alleged violation of the order with respect to a phone call to the opposing party’s real estate agent.  The client told law enforcement that his attorney had also been on the line during the call, and, when initially contacted by law enforcement, the judge stated that she had been on the call.  Shortly thereafter, she notified the officer that her statement was false.  The judge was charged with providing false information to law enforcement.  The charges were dismissed after she successfully completed a diversion program.  She self-reported to the Commission and the State Bar.  The State Bar has also publicly reprimanded her.

In several recent judicial discipline cases, judges were sanctioned for failing to be truthful and forthcoming with law enforcement.

The Illinois Courts Commission removed a judge from office for making false and misleading statements to detectives investigating the discharge of a firearm in his apartment, in addition to other misconduct.  In re O’Shea, Order (Illinois Courts Commission September 27, 2019).

In September 2017, the judge’s neighbors found a bullet inside their apartment and contacted the police.  When detectives went to the judge’s apartment, he initially told them that a hole in his wall had been caused by a screwdriver.  After the detectives told him that his neighbors had found a bullet, the judge suggested that his son may have accidentally fired a bullet through the wall.  On further questioning, the judge admitted that he had accidentally discharged a firearm and that the bullet had gone through the wall.

At the hearing before the Commission, the detectives testified that the judge’s admission came after they had interviewed him for at least 15 minutes.  The judge initially claimed that he had immediately told the detectives that the hole was from a bullet and denied blaming a screwdriver or his son.  The judge then testified that, although a screwdriver had been his first explanation, he had admitted only a few seconds later that he had fired a bullet through the wall.

The Commission found that the detectives were “credible, believable, and . . . had no basis for any bias,” and that the judge’s “testimony was not credible, not believable, and not truthful.”  The Commission emphasized that, although firing the bullet through the wall was not related to the judge’s duties, his “response to the incident was unacceptable for an officer of the court.”

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The Illinois Commission removed a second judge for failing to disclose information relevant to the investigation of a homicide and providing false statements when questioned by police detectives.  In re Duebbert, Order (Illinois Courts Commission January 10, 2020).

Duebbert met David Fields in 2013, before he was a judge, and they developed and maintained a close personal relationship.  In 2015, Fields pled guilty to aggravated assault on a pregnant person and was incarcerated.  While Fields was incarcerated, Duebbert and Fields remained in contact through telephone calls, written correspondence, and the judge’s personal and attorney visits.

On October 24, 2016, Fields was released on mandatory supervision.  On November 4, Fields moved into the judge’s home.  On November 8, Duebbert was elected judge.  On December 2, Fields moved back to his mother’s home.  On December 5, Duebbert was sworn in as a judge.

On December 29, the judge and Fields exchanged texts; Fields used a cell phone with a 650 area code that was in the judge’s name and that the judge had given him to use several times, including earlier that day.

Early the next morning, December 30, Carl Silas was murdered.

Later that morning, Fields called the judge; their conversation lasted just over 3 minutes.  By noon, the judge knew that Field was a suspect in Silas’s murder.

That afternoon, 2 state police officers investigating the murder interviewed the judge at his home.  The officers asked the judge about his firearms and the 650 phone.  The interview was recorded.

In the discipline proceedings, the officers testified that, when they asked who had the 650 phone, the judge said that Fields had given it back to him in late November or early December and did not tell them that he had returned the phone to Fields the night before, that Fields had used that phone to text him the night before, or that he had received a phone call from Fields earlier that day.  The judge told the officers more than once that “if” he heard from Fields, he would tell Fields to turn himself in to the police.

The Commission found that the detectives’ testimony was credible, believable, and without bias.  The Commission rejected the judge’s testimony that he had told the detectives about his texts and phone call with Fields during an alleged off-camera interview and found that his testimony was “seriously wanting and unworthy of any belief” and that his arguments were “insulting and disturbing” from a former defense attorney and elected judicial officer.

The Commission concluded that the judge “intentionally led the police officers astray.  Rather than being forthcoming about his contact with Fields, respondent purposely deceived the investigators by failing to provide significant information he knew was relevant to the investigation.”  The Commission also found that the judge’s false and misleading statements had effectively misdirected the police investigation and “wasted significant police time and the use of personnel during the critical investigation of a homicide.”

Noting that the judge “tried to explain these false and misleading statements by suggesting that he was petrified when speaking with the officers,” the Commission stated that his “perceived fear does not excuse lying to the police during a homicide investigation” or “absolve his subsequent lies and misstatements in attempting to explain his actions in deceiving and misleading the investigations.”  The Commission found that “the more likely reason for the judge’s implausible testimony” was that he had reviewed his recorded statement to the officers, realized he had lied, and “crafted a new explanation to somehow explain that he was not lying during the police interview.”  It also concluded that, although his false and misleading statements were made outside the courtroom and in his private life, his “repeated falsehoods are intolerable for a sworn officer of the court.”  Finally, the Commission noted that the judge had “exploited his position to satisfy is personal desires” and “to shift the focus away from his involvement with Fields,” valuing “his reputation and position as a judge over providing truthful statements to the police.”

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Finding that she had given priority to personal considerations over law enforcement’s public safety concerns, the New Jersey Supreme Court suspended a former judge for 3 months without pay for withholding from the police information about the whereabouts of her boyfriend even though she knew there were warrants for his arrest and, when she was arrested for hindering apprehension, telling the officers that she had been “vetted” and asking to be handcuffed with her hands in front.  In the Matter of Brady (New Jersey Supreme Court August 6, 2020).

In June 2013, the judge had been a superior court judge for approximately 2 months, she had been involved in a romantic relationship with Jason Prontnicki for about 6 months, and Prontnicki was living in her home.  The judge was undergoing medical treatment to have a child with Prontnicki, and a doctor had told her that she might be pregnant.

On the morning of June 10, the judge went to the headquarters of the Woodbridge Township Police Department and told Officer Robert Bartko and others that Prontnicki had loaned her car to a friend without her permission.  She stated that she had told Prontnicki that, if she did not hear from him by 10:00 a.m. on the 10th, she would report the vehicle as stolen.

While the judge was at the police station, the officers learned that there were 2 open warrants for Prontnicki’s arrest and that his driver’s license had been suspended.  One of the warrants related to an armed robbery of a pharmacy in April in which the perpetrator allegedly threatened a pharmacist with a crowbar, demanding drugs.  The officers told the judge.  According to the police report, the officers told the judge that as “an officer of the court,” she was required to tell them “if and when” Prontnicki returned so that they could arrest him.

By text, the judge told 2 friends that she had just learned that Prontnicki had threatened a pharmacist with a crowbar and that, when the incident occurred, Prontnicki “was already staying with me and I was a judge.”  She added, “I can’t have him in my house cos I wud now be harboring a criminal . . .  I wud have to report him.”

Shortly after the judge returned to her home, Prontnicki called her and told her that he had her car and would return it; she told him that police officers had advised her that he had outstanding warrants and a suspended license.  According to the judge, Prontnicki denied knowing that he had any warrants or that his license had been suspended, and she told him that he needed to “go to the police and take care of it right away.”  The judge testified that Prontnicki said he would bring her car back first, and she told him “fine, it would be nice if you brought back [the] car, but you can’t come in my house.”

Immediately following that call, the judge texted a friend that Prontnicki “just called to tell me he got the car and will bring it home.”  She added that she had told him that “he can’t stay with me cos he has a warrant out for his arrest and I am required to notify authorities when I know someone has a warrant.  So I told him he must leave after he drops the car off as I must go to the police.”

At approximately 3:00 p.m., Prontnicki arrived at the judge’s home.  The judge was “a little surprised and shocked and then fearful,” and she told Prontnicki to leave.  When Prontnicki walked through the house to the garage, she followed him.  They talked for about an hour, joined by her father for the final 15 minutes.  According to the judge, Prontnicki denied having outstanding warrants and suggested that the police might be “trying to get you because you’re a judge.”  Eventually, Prontnicki’s brother picked him up.

Approximately 15 minutes after Prontnicki left her home, the judge called the police department, asked to speak with Bartko, and left a message on Bartko’s voicemail.

The next morning, Prontnicki called the judge, and they spoke for almost 3 hours.  According to her texts to her friend that afternoon, Prontnicki attempted to reassure the judge that “he had done nothing unlawful and that their relationship could be salvaged,” but she told him that “without written verified proof he and I can’t be seen or stay at my house together.”

At 3:31 p.m., the judge left a second voicemail message for Officer Bartko.

That afternoon, officers conducted surveillance of the judge’s residence.  At 3:48 p.m., driven by his brother, Prontnicki arrived at the judge’s home, entered the garage, and spoke with her.  After about an hour, Prontnicki left with a duffel bag.  Shortly thereafter, he was arrested.

Shortly after Prontnicki’s arrest, Sergeant Brian Murphy, a detective, and an officer went to the judge’s home and arrested her for hindering Prontnicki’s apprehension.  One officer testified that she said, “I’ve been vetted, take the cuffs off.”  According to the police report, the judge directed officers to take the handcuffs off and asked to be handcuffed with her hands in front rather than behind her.  The officers refused both requests.

After escorting the judge to the processing room at police headquarters, Bartko and other officers listened for the first time to the 2 voicemail messages she had left.

Later that evening, Sergeant Murphy, an officer, and an assistant prosecutor went to another judge’s home and presented a complaint warrant alleging that Judge Brady had “harbor[ed]” Prontnicki in her residence “for approximately 1 hour and never ma[de] any attempt to contact law enforcement.”  In the discipline proceedings, Murphy conceded that the statement that the judge never tried to contact law enforcement was inaccurate.  The other judge signed the complaint warrant.

Although a grand jury indicted the judge on charges of official misconduct and hindering apprehension or prosecution, all charges were dismissed with prejudice by March 2018.

In the discipline proceedings, the judge contended that the police had tampered with the recordings of her voicemail messages before producing them, deleting part of what she told Officer Bartko.  The judge and the Advisory Committee on Judicial Conduct both submitted reports from forensic audio experts.  The Court found that, even if the judge had included the information she claimed the police had deleted, she had not been “fully forthcoming” with the police, had provided only “a vague notion” of Prontnicki’s general location, and had failed to disclose what she knew of his plans and location and how much she had communicated with him.

The Court held that the judge’s communications with the police department “fall short of the high standards imposed by the Code” and that “it is apparent that respondent’s priorities were her personal concerns — particularly her relationship with Prontnicki –not her duty to the public.”  Noting that the judge “clearly understood that the charges against Prontnicki were serious and that the police viewed public safety to be at risk while he remained at large,” the Court emphasized that “she disclosed only minimal information about her extensive contacts with Prontnicki” in “perfunctory and vague” communications that “stand in stark contrast to the candid and detailed accounts she provided by text to her friends, in real time.”  The Court also faulted the judge for not trying to contact the officers by calling the police headquarters’ general telephone number, calling 9-1-1, or visiting police headquarters.

The Court acknowledged that the judge “was undoubtedly in a difficult situation during the two days at issue here” and that it was “understandable that respondent was upset as those disturbing events unfolded.”  However, it explained:

As a judge, . . . respondent was not at liberty to address her circumstances with only herself and her personal relationships in mind.  The WTPD was searching for an individual who allegedly robbed a pharmacy by threatening a pharmacist with a crowbar.  A judge had found probable cause and issued a warrant for his arrest, and WTPD officers were charged to execute that warrant in the interest of public safety.  It was incumbent on respondent to fully cooperate with law enforcement in their search for Prontnicki, notwithstanding her distressing personal circumstances. . . .

The public has the right to expect that when police officers are searching for a fugitive accused of a violent crime and a judge has detailed knowledge of the whereabouts, activities and immediate plans of that fugitive, the judge will take prompt and decisive action to ensure that law enforcement is fully informed.  There is no exception to that principle when the judge and the fugitive have a personal relationship.

In a dissent, 1 justice described his disagreements with the Committee’s findings and the Court’s conclusions and argued that the judge should not be disciplined for “not leaving more information on a voicemail that the police recklessly failed to retrieve and for not acting as the perfect police informant during the tumultuous hours at issue . . . , and for not calling the police in the presence of a potentially violent criminal . . . .”  He stated:

Today’s majority decision is a sad epilogue to Judge Carlia Brady’s seven-year nightmare journey through the criminal justice system and the judicial disciplinary process.  Seven years ago, Judge Brady was the quintessential American success story — a Filipino-American immigrant, who became an accomplished lawyer and rose from the ranks of the Bar to become a Superior Court judge.  Just several months after her judicial appointment, her career, her reputation, her health — her life — would be in ruins, the victim of overzealous Woodbridge Township police officers, who filed criminal charges that could not be sustained in court.