Throwback Thursday

5 years ago this month:

  • Based on the judge’s agreement and waiver of formal proceedings, the Kentucky Judicial Conduct Commission suspended a judge for 30 days without pay for consuming alcohol to a degree that it affected the performance of his duties. In re Potter, Agreed order of suspension (Kentucky Judicial Conduct Commission September 1, 2015).
  • Based on the findings and recommendation of the Commission on Judicial Conduct, the Arizona Supreme Court suspended a judge for 90 days for (1) using his court email account for campaign-related communications, including obtaining a campaign endorsement from an individual who was providing services to his court, and using unprofessional and undignified language in the communications; (2) using improper campaign photographs; (3) campaign activities at 2 official court events where he was acting in his judicial capacity; (4) posting campaign materials at a U.S. Post Office in contravention of federal law; (5) confronting a clerk during court hours about her support of his opponent; (6) failing to disclose the incident involving the clerk; and (7) retaliating against his campaign opponent. In the Matter of Grodman, Order (Arizona September 23, 2015).
  • The California Commission on Judicial Performance publicly admonished a judge for failing to timely act on over 20 matters that had been assigned to him, signing and submitting false salary affidavits on 7 occasions, receiving his salary for judicial office in violation of law on 13 occasions, and failing to prepare a case progression plan in a case he exempted from meeting disposition time goals. Public Admonishment of Reinholtzen (California Commission on Judicial Performance September 3, 2015).
  • Accepting a revised consent judgement, the Florida Supreme Court suspended a judge for 30 days without pay, fined her $10,000, and publicly reprimanded her for (1) a rude and intemperate interaction with a store owner during her judicial election campaign and (2) removing court documents from a case file. Inquiry Concerning Schwartz, 174 So. 3d 987 (Florida 2015).
  • Agreeing with the recommendation of the Commission on Judicial Performance based on the judge’s agreement, the Mississippi Supreme Court removed a former chancery court judge for pleading guilty to federal felony charges of obstruction of justice during the FBI’s investigation of his mismanagement of a conservatorship. Commission on Judicial Performance v. Walker, 172 So. 3d 1165 (Mississippi 2015).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for defending her decision in a sexual assault case in an interview with a newspaper reporter. Public Warning of Howard and Order of Additional Education (Texas State Commission on Judicial Conduct September 5, 2015).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) allowing his name and judicial title to be used to promote the private interests of a bank and his family and continuing to serve as a director of the bank after he assumed the bench; (2) making public comments about 2 cases; (3) independently investigating alleged probation violations and becoming too involved in the state’s motion to revoke a defendant’s probation; (4) improper ex parte communications with a prosecutor in 1 case and a criminal defendant in another; (5) failing to comply with the Texas Fair Defense Act and the county indigent defense plan; (6) using official judicial letterhead to demand that a neighbor reimburse him for veterinary expenses; and (7) summoning a police officer to his office and threatening to report him to the probation department concerning a private dispute between the officer’s children and relatives of the judge’s court reporter. Public Reprimand of Clifford (Texas State Commission on Judicial Conduct September 5, 2015).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for sending an email to the county Republican chair offering her election opponent legal impunity, paid legal expenses, and a political endorsement if her opponent withdrew her complaint about the judge’s ballot petitions and for a Facebook post directing an offensive term to her political opponent; the Commission also ordered the judge to complete 3 additional hours of instruction. Public Warning of Wright and Order of Additional Education (Texas State Commission on Judicial Conduct September 22, 2015).

 

Family advice

Full-time judges are generally prohibited from practicing law but are allowed to provide some free legal services to members of their family.  Rule 3.10, ABA 2007 Model Code of Judicial Conduct.  (“Member of the judge’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the judge has a close familial relationship.)

In a recent advisory opinion, the Indiana Judicial Qualifications Commission addressed questions about what type of assistance a judicial officer may provide to a family member.  Indiana Advisory Opinion 2-2020.  The opinion emphasized that the family advice exception “is narrow and essentially only allows judicial officers to give behind-the-scenes assistance” to family members, for example, drafting a will or trust agreement, reviewing documents incidental to a real estate transaction, conducting legal research, or drafting letters for the family member to sign.

The opinion also emphasized that judges must not, under any circumstances:

  • Hold themselves out to third parties in person or in correspondence as a family member’s lawyer, or
  • Act as a family member’s advocate before a tribunal.

Where the model code prohibits judges from acting as a family member’s advocate “in any forum,” the Indiana code uses the term “tribunal.”  Neither code defines either term.  The Indiana advisory opinion concluded that it means “at a minimum” that judges cannot appear on behalf of family members before courts of record, city and town courts, administrative law boards and commissions, and arbitrators.  That interpretation relied on the definition of “tribunal” in the Rules of Professional Conduct as “a court, an arbitrator, or any other neutral body or neutral individual making a decision, based on evidence presented and the law applicable to that evidence, which decision is binding on the parties involved.”  (The reporters’ explanation of changes to the ABA model code states that the prohibition on appearing in forums was not meant to apply to “informal settings, such as a dispute in a neighborhood association or a purely private and minor commercial dispute,” where a judge could “serve as an “advocate” for a family member without becoming his or her lawyer and thus practicing law . . . .”)

The Indiana opinion addressed 3 questions.

1.“May a judicial officer attend a court or administrative hearing with a family member who is a party or witness in a proceeding?”

The opinion acknowledged that it was understandable that judges would want to accompany family members to legal proceedings where they might feel vulnerable and anxious.  However, the opinion noted that concern had to be balanced with the likelihood that observers might believe that the judge’s presence was an attempt to influence the outcome, creating at least an appearance of impropriety.

The committee concluded that a judicial officer may attend a court or administrative hearing with a family member to provide support, not advocacy.  To dispel any concerns about the judge’s role, the committee cautioned, the judge, in and around the location and immediately before and during the proceeding:

  • Must not refer to their judicial status,
  • Should try to keep others from referring to them as “judge,” “magistrate,” “commissioner,” “referee,” or other judicial title,
  • Should not wear any court-related clothing (for example, a judicial robe or casual shirt with the court logo), and
  • Should not interact with others in a manner that conveys that they have special influence or are a “court insider,” by, for example, visiting the presiding judge’s chambers or the hearing officer’s office, socializing with tribunal staff, or interacting informally with any prosecutorial or investigative staff.

The Indiana committee relied in part on Massachusetts Advisory Opinion 2008-4.

Noting that a hearing that is emotionally charged for a family member might also produce “intense emotions” for a related judge, the Indiana opinion warned judges to carefully evaluate whether they “can maintain composure during the hearing” and to remember that they must behave in a manner that promotes public confidence in the integrity, independence, and impartiality of the judiciary even when not acting as a judge and regardless how others may be reacting.

2. “May a judicial officer attend and participate in an investigative interview or settlement conference of a family member on a matter that is likely to be litigated?”

The Indiana committee noted that, even before a legal matter is filed, a family member may seek a judicial officer’s advice “when facing investigative interviews or settlement conferences (i.e. to resolve an insurance claim after an auto accident or to clear up disputed credit issues).” 

The opinion concluded that negotiating on a family member’s behalf in a settlement conference or advising a family member about answering questions in an interview is the practice of law, and, therefore, judges cannot engage in those activities.  However, the opinion stated that a judge could attend a settlement conference or investigative interview to provide emotional support for a family member — with the same caveats that apply to attending hearings, described above.  Further, the committee stated that a judge could, “during a break in the settlement conference or interview, . . . answer the family member’s questions, assist the family member in evaluating the strengths and weaknesses of certain positions, and provide informal, common sense input.”

3. “May a judicial officer speak with law enforcement, prosecutors, or court personnel on a family member’s behalf when the family member is under investigation or charged with a criminal offense?”

Encouraging a “cautious approach,” the Indiana committee advised judicial officers to avoid contacting law enforcement, prosecutor’s office staff, or court personnel on a family member’s behalf, although it stated that a judge could advise a “family member what questions to ask or what information to relay.”  The opinion explained:

When a family member asks the judicial officer to communicate with law enforcement, prosecutor’s office staff, or court personnel on the family member’s behalf, even if the judicial officer merely seeks general information, there is a risk (especially if the listener knows the judicial officer) that the listener will interpret the judge’s communication as a request for special treatment.

The committee did note that a judicial officer may be able to ask questions if a family member, for example, a minor child, “is unable to adequately communicate on his or her own behalf with third parties” and no other responsible adult is available.  Even in that unusual circumstance, the committee warned, judicial officers should be cautious and never refer to their judicial status, imply that they are the family member’s attorney, suggest special consideration for the family member, or “use any court resources, such as an email dedicated to the court system.”

Throwback Thursday

10 years ago this month:

  • The Alabama Court of the Judiciary suspended a judge without pay for 60 days and publicly censured and reprimanded him for (1) without holding a hearing, setting aside the rape conviction of a man he had represented before becoming a judge and (2) criticizing another judge in an order disqualifying himself from a case. In the Matter of King, Final judgment (Alabama Court of the Judiciary September 30, 2010).
  • Adopting the findings of 3 special masters, the California Commission on Judicial Performance publicly censured a judge for failing to comply with procedural requirements or to provide notice or an opportunity to be heard before ordering a small claims plaintiff to have no contact with 3 women and to stay away from a credit union. Inquiry Concerning O’Flaherty (California Commission on Judicial Performance September 23, 2010).
  • Adopting a stipulation and joint recommendation, the Illinois Courts Commission publicly reprimanded a judge for driving while under the influence of alcohol. In re Purham, Order (Illinois Courts Commission September 14, 2010).
  • Pursuant to an agreement, the Minnesota Board on Judicial Standards publicly reprimanded a judge for comments he made while presiding in a criminal case, for example, referring to several possible witnesses as “a bunch of drunkards.” Public Reprimand of Aldrich (Minnesota Board on Judicial Standards September 27, 2010).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for writing 3 letters on court stationery to members of the Italian judicial system on behalf of a criminal defendant, using court staff to type those letters, and speaking publicly on several occasions in an attempt to influence the case. In the Matter of Heavey, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 24, 2010).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for threatening in a sidebar to physically harm a prosecutor. In the Matter of LaSalata, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 24, 2010).

A sampling of recent judicial ethics advisory opinions

  • A judicial officer may not hold herself out to third parties as a family member’s lawyer or appear as the family member’s advocate before any tribunal, which includes courts of record, city and town courts, administrative law boards and commissions, and arbitrators.  A judicial officer may attend a court or administrative hearing with a family member in a supportive role, not as a legal advocate.  When attending a hearing, a judicial officer may not refer to their judicial status and must make efforts to keep others from referring to them as “judge” (or “magistrate,” “commissioner,” or “referee”) while in the courtroom or its environs immediately prior to and during the hearing; must not wear any court-related clothing (for example, a judicial robe or casual shirt with the court logo); and must not interact with others in the courtroom and in areas immediately adjacent to it in a manner that conveys that the judicial officer has special influence or the status of a “court insider,” such as visiting the presiding judge’s chambers prior to or immediately after the hearing, socializing with court staff in the courtroom or court offices, or interacting informally with prosecutorial or investigative staff.  Prior to attending a hearing, a judicial officer should carefully evaluate whether they can maintain composure during the hearing.  Indiana Opinion 2-2020.
  • A judge may not have a “Christmas at the courthouse” event but may invite the public to learn how the court operates and tour the courthouse at a “holiday” event if there will be no alcoholic beverages, may use the judge’s own resources to purchase gifts for the children, and may have a local personality portray Santa. New Mexico Opinion 2019-4 .
  • A judge may not adopt a general policy of declining to perform weddings that involve a minor under 18 but may decline to perform a specific wedding if the judge, upon inquiry, has a valid basis to believe that the wedding would be illegal or would serve an illegal purpose.  New Mexico Opinion 2019-5.
  • A judge may not mail congratulatory letters on court stationery to a graduating high school class.  New York Opinion 2020-89.
  • A magistrate court judge may serve as the state judicial outreach liaison with the American Bar Association regarding impaired driving and other traffic issues.  South Carolina Opinion 8-2020.
  • A judge may serve on the advisory board of a not-for-profit organization dedicated to the preservation of an historic theater.  New York Opinion 2020-81(A).
  • A judge may not create and promote a GoFundMe campaign to raise money for a charitable cause.  New York Opinion 2020-81(A).
  • A judge may join a not-for-profit organization’s board to review scholarship applications and award scholarships to Deferred Action for Childhood Arrivals immigrants.  New York Opinion 2020-81(A).
  • A judge may use her judicial title in internal bar association communications as a bar association committee chair.  New York Opinion 2020-81(A).
  • A judge may participate in charity walks in a personal capacity regardless whether he is running for election or re-election, but information about his participation may not be posted on his campaign website or on the charity’s website.  Maryland Opinion Request 2020-14.
  • A judge who is enrolled in a Ph.D. program in theology may participate in a debate with other theologians even if the host church will have a “love offering” to raise funds for compassion and mission work to poor ministries and people in Asia as long as the judge does not personally ask for or collect the funds and does not remain on the stage during the offering.  South Carolina Opinion 10-2020.
  • A judge may be enrolled in a political party, but may not otherwise be a member of a political organization.  New York Opinion 2020-81(A).
  • A judge whose spouse is a candidate for elective public office may not await primary results at an election night event sponsored by a political organization or her spouse’s campaign committee but may attend an event sponsored and personally paid for by her spouse and unrelated to a political party or campaign committee.  New York Opinion 2020-87.
  • When multiple, high-profile, racially-charged incidents of police violence have resulted in pending or reasonably foreseeable litigation and intense local and national controversy, a judge may not participate in a county executive’s initiative to promote trust and dialogue between activists and police about those incidents and/or recommend changes to current police force deployments, strategies, policies, procedures, and practices.  New York Opinion 2020-112.

Throwback Thursday

20 years ago this month:

  • Approving the findings and recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for a pattern of rudeness and disrespect toward lawyers, parties, witnesses, victims, and court personnel. Inquiry Concerning Haymans, 767 So. 2d 1173 (Florida 2000).
  • Based on an agreed statement of fact, the New York State Commission on Judicial Conduct publicly admonished a judge for, during his campaign for another court, implying in campaign advertisements that he was the incumbent judge, making statements that appeared to commit him with respect to abortion issues likely to come before his court, and making improper campaign contributions. In the Matter of Mullin, Determination (New York State Commission on Judicial Conduct September 25, 2000).
  • Based on stipulations of fact in lieu of a trial, the Pennsylvania Court of Judicial Discipline removed a former judge from office and disbarred him for his conviction on a federal felony charge of conspiracy to violate civil rights. In re Melograne, 759 A.2d 475 (Pennsylvania Court of Judicial Discipline 2000).
  • Agreeing with the findings and recommendation of the Commission on Judicial Conduct, the South Carolina Supreme Court publicly reprimanded a former municipal court judge for (1) resigning from the California bar as a result of disciplinary action, (2) his conviction of credit card fraud, supplying false tax returns, false employment information, and false social security numbers in applying for a loan, filing false federal income tax returns, mail fraud, and money laundering, and (3) failing to respond to the investigation. In the Matter of Hamer, 537 S.E.2d 552 (South Carolina 2000).
  • Agreeing with the findings and recommendation of the Commission on Judicial Conduct, the South Carolina Supreme Court publicly reprimanded a non-lawyer magistrate for, while serving as a municipal judge, giving favorable treatment to 2 defendants. In the Matter of Sessions, 538 S.E.2d 1 (South Carolina 2000).

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for 6 incidents of improper demeanor and denial of the right to be heard in criminal cases; the Commission also ordered the judge to complete training on appropriate demeanor.  Hopkins (Arizona Commission on Judicial Conduct June 10, 2020).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for granting a motion to continue a trial filed by an attorney who was representing her in a traffic case.  Bracamonte, Order (Arizona Commission on Judicial Conduct May 19, 2020).
  • Following a hearing, the Kentucky Judicial Conduct Commission removed a judge from office for (1) pressuring members of her guardian ad litem panel to donate to her election campaign and to campaign on her behalf and removing an attorney from the panel because he did not provide as much support for her campaign as she wanted; (2) having court staff work on her campaign during office hours on paid time; leaving the courthouse with her case specialist and secretary during regular court hours; and approving timesheets for numerous employees that she knew were inaccurate; (3) requiring her case specialist to resign so that she could hire a man with whom she had a romantic relationship; allowing him to engage in inappropriate conduct, including playing his guitar and singing in the office during work hours; permitting employees to consume alcohol in her chambers and in his office; pretending to engage in sexual activity with him and her secretary in his office during work hours; and improperly delegating responsibilities to him; (4) making inappropriate sexual advances toward an attorney; failing to disqualify herself from the attorney’s cases; and filing a bar complaint to retaliate for the attorney’s cooperation in the Commission’s investigation; (5) putting the school liaison officer’s cases at the end of the docket because they disagreed about how to handle certain types of cases; (6) appointing personal friends who were campaign supporters to represent individuals seeking de facto custodian status without requiring them to come to court to receive appointments; and (7) failing to be candid and honest with the Commission.  In re Gentry, Findings of fact, conclusions of law, and final order (Kentucky Judicial Conduct Commission August 31, 2020).
  • Based on the presentment of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a former judge for 3 months without pay for withholding from the police relevant information about the whereabouts of her boyfriend even though she knew that there were warrants out for his arrest and, when she was arrested for hindering apprehension, telling the police 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).
  • Accepting a stipulation based on the judge’s retirement and affirmation that she will neither seek nor accept judicial office, the New York State Commission on Judicial Conduct terminated proceedings against a judge who had been diagnosed with Alzheimer’s Disease.  In the Matter of Simpson, Decision (New York State Commission on Judicial Conduct July 31, 2020).
  • Accepting a stipulation based the judge’s resignation and affirmation that she will neither seek nor accept judicial office, the New York State Commission on Judicial Conduct concluded a formal complaint against a non-lawyer judge alleging that she had failed to properly or timely execute various judicial duties, such as reporting and accounting for court cases and funds, and failed to cooperate with investigations or inquiries into those matters by government agencies.  In the Matter of Branagan, Decision (New York State Commission on Judicial Conduct August 6, 2020).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for shouting, yelling, or otherwise raising her voice more than 10 times and without basis at court staff members and attorneys despite having been cautioned by the Commission in 2006 to be patient, dignified, and courteous to those with whom she dealt in an official capacity.  In the Matter of Pineda-Kirwan, Determination (New York State Commission on Judicial Conduct August 12, 2020).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for (1) giving a defendant a ride home after his arraignment and presiding over his case without disclosing the ride to the prosecution; (2) failing to advise unrepresented defendants in a criminal case of the right to have counsel assigned by the court and failing to comply with other requirements of the criminal procedure law; and (3) summarily directing that a man be removed from the courtroom based on the man’s attire without giving him the opportunity to be heard.  In the Matter of Parker, Determination (New York State Commission on Judicial Conduct August 13, 2020).
  • Adopting the findings of the Board of Professional Conduct, which adopted the findings of a 3-member panel based on stipulations, the Ohio Supreme Court publicly reprimand a judge for driving while intoxicated and referring to her judicial office during the traffic stop.  Disciplinary Counsel v. Hawkins (Ohio Supreme Court August 12, 2020).

Throwback Thursday

25 years ago this month:

  • The New York State Commission on Judicial Conduct removed a judge who had converted $6,150 in court funds to his personal use. In the Matter of Sterling, Determination (New York State Commission on Judicial Conduct September 8, 1995).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge who had served as an officer and director of 2 for-profit corporations while sitting as a full-time judge and failed to disclose his interest in the corporations on ethics forms. In the Matter of Bell, Determination (New York State Commission on Judicial Conduct September 22, 1995).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for diverting funds from a not-for-profit corporation connected to the court to a law professor for research expenses that they had agreed to share in their private authorship of a hornbook on New York estates administration and failing to supervise the hiring of interns who worked in the court and were paid by corporate funds, which led to a patronage system for the relatives of full-time court employees. In the Matter of Radigan, Determination (New York State Commission on Judicial Conduct September 22, 1995).

 

No divorce from judicial role

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.”

* * *
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).)

* * *
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.

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for his tone during an eviction trial, failing to afford either party a fair opportunity to be heard, and simultaneously entering judgment for the defendant and dismissing the case without prejudice. Fletcher, Order (Arizona Commission on Judicial Conduct August 14, 2015).
  • Adopting the findings of 3 masters, the California Commission on Judicial Performance severely censured a judge for calling the county jail and ordering the own-recognizance release of a person he knew socially. Inquiry Concerning Petrucelli, Decision and order (California Commission on Judicial Performance August 18, 2015).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a part-time judge for making improper contributions to political organizations and candidates directly and through his law firm. In the Matter of Sakowski, Determination (New York State Commission on Judicial Conduct August 20, 2015).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a part-time judge for improper contributions to political organizations and candidates through his law firm and his spouse. In the Matter of Fleming, Determination (New York State Commission on Judicial Conduct August 20, 2015).
  • Based on the judge’s admission of the factual allegations, the Pennsylvania Court of Judicial Discipline removed a judge from office for not filing state and federal tax returns for 5 years, failing to remit approximately $130 in sales tax owed by a shoe store she owned, opening the store without a license, and pleading guilty to 3 misdemeanors (for dismissing several of her own tickets) and 1 summary offense (the business license violation). In re Ballentine, Opinion and order (Pennsylvania Court of Judicial Discipline August 4, 2015).
  • The Pennsylvania Court of Judicial Discipline removed a former supreme court justice from office based on her conviction in state court of theft/diversion of service, criminal conspiracy, and misapplication of entrusted property. In re Orie Melvin, Opinion and order (Pennsylvania Court of Judicial Discipline August 14, 2015).

 

Officer of the court candor

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.