Hoosier overseer?

If you are a reader of legal publications or legal blogs, you’ve likely already read something about the nightmarish night out in Indiana that resulted in two state court judges being shot and three state court judges being disciplined. You can read all of the underlying facts if you’d like in the decision that was issued earlier this month imposing judicial discipline here.

Beyond making, by pretending I’m not making, a joke about how their trip to White Castle went much worse than Harold and Kumar’s, I’m not particularly interested in piling on with opinions about that situation.

If you’ve ever personally allowed yourself to consume much more alcohol than you should – and as a result experienced a situation in which you stopped making new memories (which as I understand it is actually what scientists and researchers believe happens when you “blackout”) — then even if you think what happened would never happen to you, you know deep down that maybe, just maybe, you’ve been at risk of such an outcome. But, I do want to use this story to make two points that are worth continuing to think about.

First, each of the judges was a lawyer in the past (and still had a law license at the time) and all of the discussions that we have as a profession about mental health and substance abuse issues in our profession apply equally, if not more in some circumstances, to those on the bench. The need to de-stigmatize seeking help and treatment for judges is just as topical as it is for lawyers.

Second, these judges ultimately were subjected to discipline over this. That is because when it comes to lower level judges we have bodies that oversee their compliance with judicial ethics rules and impose judicial discipline. If the players in the events outlined in the Indiana opinion were not Indiana state court judges, but instead were Justice Kavanagh, Justice Alito, and Justice Kagan experiencing a drunken night on the town that went horribly wrong, there would not be any potential for any disciplinary repercussions whatsoever because we have no regulatory body that is imbued with the authority to enforce any code of federal judicial ethics as against any members of the United States Supreme Court.

Sure, it is possible that articles of impeachment could be pursued to seek to remove a Justice from the bench over conduct like that, but . . . well, let’s just agree that a body a bit more removed from politics would seem like a more reliable regulator in terms of predicting whether it would see certain conduct as indefensible and worthy of rebuke.

There are people out there generating ideas for ways to bring about ethics reform with respect to the United States Supreme Court. The Brennan Center has put out a white paper with three ideas for reform you can read here. The U.S. House of Representatives passed a bill (not acted upon in the U.S. Senate of course) that would require the Court to adopt a code to govern the conduct of its justices. It has recently (earlier this year at least) been in the news that Justice Roberts is exploring creating such a code.

I don’t purport to know what the correct answer is exactly, but I know that while the risk of something like what happened in Indiana happening to members of the highest Court in the land is likely pretty slim, there are real, substantial ethics questions in play about the members of the Court conduct themselves and our system would be greatly benefited if there was clear, and clearly articulated, rules governing their conduct just like exist for all other judges in our country.

Really good guidance, but not good enough for some.

While I’m catching up on things I should have managed to write about sooner, ABA Formal Ethics Op. 488 is deserving of a few words. That opinion was issued back in early September of this year. What particularly brought it to mind now was that it covers one of multiple topics I was lucky enough to get to talk about last weekend at that PilotLegis member meeting I mentioned in a post last week.

Opinion 488 is a very well written opinion covering the landscape of what the consequences for judges should be in situations where they have some sort of relationship with lawyers or parties appearing before them. The opinion addresses this question with an eye toward what folks online refer to as IRL situations.

It divides the world for judges into three categories of relationships: (1) acquaintances; (2) friendships; and (3) close personal relationships. Having done so, it proceeds on a pretty straightforward basis to explain that if a judge and a lawyer, or a judge and a litigant, are just acquaintances, then the judge has no obligation to even make disclosure of that fact and certainly no obligation to decide to recuse themselves because they are disqualified from presiding. The opinion offers a fairly succinct proffered definition of what it means by the term “acquaintances” — “A judge and lawyer should be considered acquaintances when their interactions outside of court are coincidental or relatively superficial, such as being members of the same place of worship, professional or civic organization, or the like.” The opinion also makes clear that a judge and a litigant should be considered acquaintances under the same kinds of circumstances as judges and lawyers. As to the third category, “close personal relationships” the opinion explains that those require disqualification outright only if the relationship is a romantic one or what I’m going to call “unilaterally, aspirationally romantic.” Where the judge wants to have a romantic relationship with the person. As for the rest of the world of friendships and other close personal but non-amorous relationships, the opinion candidly admits that they are all pretty much fact specific as to whether disqualification is required or merely a disclosure on the record is what is required accompanied by an explanation of the grounds for why the judge believes they can still preside is appropriate instead.

I can manage to have some real fun criticizing ethics opinions from time-to-time so I can’t really begrudge others when they do. But this is one that I think gets things correct.

Two other prominent legal ethics experts, Karen Rubin and Alberto Bernabe, criticized this opinion in slightly different ways. Karen expresses disappointment that is does not do enough to provide what she called “needed” guidance about the impact of judges’ use of social media and connections with lawyers and litigants on questions of disqualification. Professor Bernabe mentioned that omission but was a bit more critical of the nature of the opinion as being an “it depends” and is largely “up to the judge” in the first instance.

I disagree on Professor Bernabe’s point because I think that is the very nature of the beast. And, I appreciate the opinion being candid about the exercise. I disagree with Karen Rubin for what might be two reasons, but might really just be one overall reason.

First, treating social media as something so important or different as to be deserving of its own space and separate treatment (I think) misses the larger point. A social media connection simply is just one piece of the overall puzzle of determining whether or not the judge and the person have an actual relationship that is a friendship or something less. Second, the opinion does address the topic – and does so in a way that is entirely consistent with my first point. It does this in footnote 11:

Social media, which is simply a form of communication, uses terminology that is distinct from that used in this opinion. Interaction on social media does not itself indicate the type of relationships participants have with one another either generally or for purposes of this opinion. For example, Facebook uses the term “friend,” but that is simply a title employed in that context. A judge could have Facebook “friends” or other social media contacts who are acquaintances, friends, or in some sort of close personal relationship with the judge. The proper characterization of a person’s relationship with a judge depends on the definitions and examples used in this opinion.

By simply acknowledging that it matters, but that it is no more dispositive of the relevant question than any other piece of the puzzle, I think that Opinion 488 handles it exactly the correct way. Stated another way, given the widely varying state opinions that Karen addressed in her much more timely post about this, I think the guidance needed from the ABA on the social media front was pretty much exactly what was in the footnote and nothing more. If that guidance is heeded, then perhaps state entities can start to “chill out” a bit about the trees and focus on the forest.

Two Arkansas items involving rare procedural developments

As I attempt this week to get back into the saddle, two items – each relatively unusual and each involving Arkansas – grabbed my attention. One involves a judge and the other a lawyer.

Although Fridays are usually reserved for standard “follow ups,” the first item is in the nature of follow-up because I wrote previously about when this Arkansas judge was hit with disciplinary charges over his involvement in a protest against the death penalty around about the same time he was ruling on issues related to the death penalty in a case. The ABA Journal now has a story about the charges against the judge being dismissed by the Arkansas Supreme Court.

The reason for dismissal? The delay in the pursuit of the charges against him. The article notes that the charges were first filed against the judge back in April 2017. While both judges and lawyers alike subjected to disciplinary cases often feel like the process goes on longer than it should, and often times if you pay attention to the timelines in disciplinary opinions you see how extended the time frames often are between the opening of the case and the ultimate resolution, it is rare to see delay in disciplinary proceedings resulting in the outright dismissal of the charges. Twenty-six months would certainly be a long time if nothing at all was transpiring in the matter.

Of note, the article also mentions that the related ethics cases against six of seven justices on the Arkansas Supreme Court related to their treatment of the Arkansas judge in question (also discussed in my long-ago post) were also dismissed in November 2018 but the reasons for that dismissal are not mentioned.

On the lawyer side, a daily publication from the Tennessee Bar Association has started including disciplinary orders in its coverage of court opinions and, on Friday, it included the kind of order not seen every day on a number of fronts.

It is an order commencing a disciplinary case (or maybe not actually even truly doing that) against a Tennessee lawyer for having been convicted of a DUI offense in Arkansas. It’s unusual in a couple of respects in as much as historically there have not been many instances of any public discipline against Tennessee lawyers for criminal conduct involving drunk driving. While this order is certainly public in nature and can, itself, be something of a public censure for the lawyer involved, the order does not technically actually require the Board of Professional Responsibility in Tennessee to do anything about the situation.

The specific language of the order from the Tennessee Supreme Court reads:

This matter shall be referred to the Board for whatever action the Board may deem warranted.

Whether or not anything does come of it is unclear, the only provision that can be triggered by a DUI offense is RPC 8.4(b) and will turn on whether this particular criminal act is treated as one that “reflects adversely on the lawyer’s … fitness as a lawyer in other respects.” For what it may be worth, the lawyer in question does not have any past disciplinary history in terms of public discipline, but the Board’s website does reflect a pending petition against him that has been open since April 2018 so it would seem likely to be entirely unrelated to this offense which involved a traffic citation/arrest occurring in October 2018.

Friday Follow-Up: Florida Finds Facebook Friendship Fine

You’ve probably heard this news by now.  But, it’s Friday and I wrote about this before, so … I feel a sense of obligation to follow-up.

The Florida Supreme Court ruled yesterday that the fact that a judge is Facebook friends with a lawyer appearing before her in a litigated matter is not alone sufficient to justify disqualification of the judge.  You can read lots of good articles providing summary treatment of this decision.  I’d recommend this one from the folks at Bloomberg/BNA.

The majority certainly got to what I strongly believe is the right result.  And, the core of the correctness of that result lies in these six sentences which I have admittedly spliced together from different parts of the majority opinion:

[T]he mere existence of a friendship between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are friends of an indeterminate nature. Facebook “friendship” is not—as a categorical matter—the functional equivalent of traditional “friendship.” The establishment of a Facebook “friendship” does not objectively signal the existence of the affection and esteem involved in a traditional “friendship.”  Therefore, the mere existence of a Facebook “friendship” between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship.

I’m writing today about this more to make three points that I feel like have to be said out loud.

  1.  I can’t believe it was a 4-3 decision and that three justices of the Florida Supreme Court were willing to sign their names to the following position:  “The bottom line is that because of their indeterminate nature and the real possibility of impropriety, social media friendships between judges and lawyers who appear in the judge’s courtroom should not be permitted.”
  2. I’m even a bit more amazed that the concurring opinion (“I concur with the majority opinion. However, I write to strongly urge judges
    not to participate in Facebook.”) demonstrates a majority of the Court (4 justices) believes that judges simply shouldn’t be on Facebook at all.  There are legitimate reasons why maybe all of us should delete Facebook, but the reasons espoused by the dissent and concurrence aren’t among them.
  3. If you are in a band and aren’t actively considering naming it, or changing its existing name to,”Friends of an Indeterminate Nature,” then I don’t really think I can ever understand you.

One thing that lawyers and judges have in common.

People often think of lawyers and judges differently.  And, to a large extent, they should.  In almost every situation, someone cannot become a judge without having been a lawyer first.  But once a lawyer transforms into a judge, their role in the judicial system becomes radically different and they now have a new set of ethics rules to which they have to comply.

Yet, lawyers who become judges are still human beings and lawyers who become judges can be plagued by some of the same flawed aspects of being human as lawyers who never become judges.

This post for your Friday wants to offer up 4 very recent examples – 2 involving lawyers and 2 involving judges – of human beings all demonstrating the same variation of a common flaw:  Not knowing when to simply not say stupid things out loud (or in digital format).

On back-to-back days earlier this week, The ABA Journal online had stories about two different lawyers (who likely would have hit it off if they knew each other) getting in trouble for communications to or about clients that were roughly equally ill-advised although they involved the use of two different means of electronic communication.

The first was a New Jersey lawyer who has now been publicly censured over a text communication to a criminal defense client.  The client in question had ceased paying the lawyer and the lawyer had tried on two occasions to be granted leave to withdraw but was unsuccessful as the court denied the withdrawal motions.  Despite being stuck with having to pursue the representation (or perhaps because of it), the lawyer sent a text to his client that the ABA Journal described as follows:

In a text, Terry told the client he wouldn’t prepare in the weekend before the trial without getting paid first. Then he wrote, in all capital letters: “HAVE FUN IN PRISON.”

That text ultimately did manage to get the lawyer out of the case as the client showed it to the judge and the judge then removed the lawyer as counsel.  But it also resulted in the public censure.  At core, the ethics rule the lawyer was deemed to have violated was a conflict of interest rule by placing his own personal interest in getting paid ahead of his obligation to diligently represent the client.

The second was an Iowa lawyer who allowed himself to get too worked up on Facebook — enough to publicly disparage a client.  While, as things currently stand, the lawyer has only been the subject of negative publicity, it remains a real possibility that a disciplinary proceeding could be part of the lawyer’s future.  The ABA Journal treatment of the core of what happened is pretty succinct so I’ll just offer it up for your reading:

In the post, Frese told of a meeting to help prepare a client for trial on federal drug and gun charges. The client told Frese he would have a hard time connecting with blue-collar jurors because he hadn’t “had to work for anything in your life.”

Frese wrote that he was “flabbergasted” by the comment because anyone who knows him is aware of his modest background. Frese wrote that the man is an “idiot and a terrible criminal.”

“He needed to shut his mouth because he was the dumbest person in the conversation by 100 times,” Frese wrote. “You wonder why we need jails huh?”

The lawyer deleted the post in question after he was contacted by the Associated Press about it.  The article points out that the AP was able to piece together from what was written exactly who the lawyer was talking about even though the lawyer didn’t use the name of the client in the post.  The Iowa lawyer’s story highlights one of many reasons why lawyers shouldn’t be writing about their client’s matters without express and clear consent from their client.  Of course, technically, the lawyer made the situation even worse by what it is reported that he said to the AP when contacted:

Frese told AP that he told the client he was in jail because he was terrible at what he did, and they left the meeting on good terms. He didn’t immediately respond to a voicemail from the ABA Journal seeking comment.

On the judicial front, Law360 had two examples reported on the same day of judges demonstrating problems with communications as well.  One of the judges in question also hails from New Jersey.  That judge, as Law360 explained, was censured for inappropriately making certain when communicating to court staff about his own personal child support case to emphasize his status as a judge.  This came across as an obvious attempt to use his judicial office to achieve special treatment.  The other judge highlighted in Law360 this week ended up later engaging in actual conduct that was much worse than the original communications but still also managed to allow the ready access of text messaging to start him down the bad path.  As with most Law360 articles, you will need a subscription to read the full article, but you can get a strong sense of the Jeopardy category of wrongdoing from the opening blurb which explains the circumstances for which he was now offering an apology to a state ethics body in an attempt to avoid discipline:

An ex-Pennsylvania judge facing discipline for exchanging sexually explicit text messages and eventually sleeping with the girlfriend of a man participating in a court-mandated rehab program he oversaw ….

These are, unfortunately, not earth-shattering examples of “new” problems in the human condition.  They do though tend to highlight how much easier modern technology makes it for well-educated professionals to somehow make really poor judgment calls when technology makes it easy to do so and to do so rapidly.

 

“Let’s put our heads together and start a new country up.”

Serial, perhaps the best known podcast of all podcasts, has recently launched its third season and like one of the REM songs off of Life’s Rich Pageant it focuses on Cuyahoga – but not the river but the County in Ohio – more particularly, it focuses on what goes on inside the Justice Center in Cuyahoga County.  Yet, much like the song was according to Peter Buck, the podcast also may just really be about America and its lost promises too.

So far the first three episodes have dropped, and they are particularly good.  Good, of course, in a troubling way for what they show with respect to the inner workings of the justice system.  Admittedly, all this season of Serial can truly do is show problems in just one particular courthouse in one particular location, but we all know there are universal themes that recur in many other similar venues in the nation.

The first three episodes alone have also given fodder for discussions of legal ethics for those so inclined.  The first episode follows an unfortunate and unfair bar fight through the court system.  The host, Sara Koenig, is given extensive access to the criminal defense lawyer involved.  (The series so far reveals that she was given nearly free rein in the building altogether.)  Even though there is one spot in which Koenig explains that had to be excluded from a meeting between the lawyer and his client in order to protect the attorney-client relationship while they talked, those familiar with the duty of client confidentiality still know that given how incredibly much is actually revealed by the lawyer about the case he is handling, how he is handling it, what he and his client have discussed, that surely there must have been a thorough and clear consent provided by the client for there to be no breach of the lawyer’s duty under Ohio’s version of RPC 1.6.

The second of the first three episodes introduces you to a judge who almost certainly needs to be made the subject of multiple judicial ethics complaints and who seems to have no business sitting in judgment of other people.  But the judge it introduces you to is likely a character-type that will sound very familiar to you in many respects no matter whether you’ve ever been in Cuyahoga County, Ohio or not.

The third episode tackles the very relevant topic of police brutality, the intricacies that can arise when one situation results in intertwining civil and criminal matters, and, for true ethics nerds, raises (at least indirectly) issues associated with a lawyer who swaps places in the system later in their career as well as problematic issues regarding where the line is in court proceedings between advocacy and assisting someone with manipulating evidence and testimony to assure an end result that may be believed to be just.

Anyway, your mileage may vary, but I find myself hooked.  I also find myself really wishing that Karen Rubin over at The Law For Lawyers Today might be able to weigh in at some point on her take on how the show portrays things, but, because she practices in Cleveland, I’m guessing that she is likely too close to the courts and the lawyers involved to be able to comfortably weigh in.

The fourth episode should be out tomorrow.  You should check it out.  (And, yes, I’m a guy with a pretty decent sense of humor and I see the hilarity in me encouraging the few hundred or so people who read this blog to go check out something that has millions upon millions of downloads.)

Proposed revisions to the Code of Conduct for U.S. Judges

So last week I was quoted a bit in a Law360 story related to Judge Kavanaugh’s continued effort to ascend to the highest judicial position in our nation.  If you are a subscriber, you can read the article here.  It had to do with the news of the lawyer who was going to be representing Dr. Blasey-Ford and whether his departure from his firm was really sudden or not and the reasons why a firm with a significant appellate court practice might not want to let themselves have to treat Judge Kavanaugh as an adverse party.  If you are not a subscriber, I’ll offer you the two snippets involving what I had to say:

If Bromwich had stayed at Robbins Russell, Judge Kavanaugh would consequently have become an adverse party for conflicts purposes, potentially complicating the firm’s appellate efforts on behalf of clients, said Brian S. Faughnan, a legal ethics attorney at Lewis Thomason.

“That could have led to Judge Kavanaugh recusing himself from any appellate cases in which Robbins Russell was counsel of record or likely required the firm to seek Judge Kavanaugh’s recusal in all such cases. If he were confirmed, that would mean placing firm clients in a position where potentially only eight justices could hear their cases,” Faughnan said.

Even if Kavanaugh is not confirmed to the Supreme Court, the representation of Blasey Ford could still hurt the law firm as long as Judge Kavanaugh continues to hold a spot on the D.C. Circuit, Faughnan said.

Although that article came out just a week ago, it feels more like a year ago.

Based on the highly partisan nature of what Judge Kavanaugh had to say in his prepared testimony, it seems likely that, for as long as he has a position as a federal judge in any capacity, there will be lots of litigants and counsel that will have to seriously weigh whether to pursue motions for him to recuse from their cases.  “What goes around comes around,” could be a recurring quote referenced in motions seeking recusal for many years to come.

There are lots of other things I might write today about the troubling nature of things, but I will instead send anyone with an interest in where my perspective is at the moment to this piece published elsewhere.

While we are on the subject of federal judicial ethics though, I’d like to point out that there are proposed revisions to the Code of Conduct for United State Judges pending and for which there is a November 13, 2018 deadline for public comment.  The proposed changes do not impact in any fashion the existing rules for disqualification of federal judges — Canon 3(C) —  nor the rule that would be most difficult for a federal judge to claim would permit the making of any false statement under oath — Canon 2(A).

What the proposed changes do address are the conclusions of the June 1, 2018 Report of the Federal Judiciary Workplace Conduct Working Group and the perceived need for additional ethical guidance regarding workplace harassment in the world of federal judges — an area to which none of the accusations against Judge Kavanaugh extend.

The most extensive proposed changes are set out in Canon 3(B) addressing the performance of administrative responsibilities and in new explanatory Commentary.  The rules would include a new provision:

(4) A judge should practice civility, by being patient, dignified,
respectful, and courteous, in dealings with court personnel,
including chambers staff. A judge should not engage in any form
of harassment of court personnel. A judge should not engage in
retaliation for reporting of allegations of such misconduct. A
judge should seek to hold court personnel who are subject to the
judge’s control to similar standards in their own dealings with
other court personnel.

A new paragraph in the Commentary would further explain:

Canon 3B(4). A judge should neither engage in, nor tolerate, workplace
conduct that is reasonably interpreted as harassment, abusive behavior, or retaliation
for reporting such conduct. The duty to refrain from retaliation reaches retaliation
against former as well as current judiciary personnel.  Under this Canon, harassment encompasses a range of conduct having no legitimate role in the workplace, including harassment that constitutes discrimination on impermissible grounds and other abusive, oppressive, or inappropriate conduct directed at judicial employees or others. See also Rules for Judicial-Conduct and Judicial-Disability Proceedings, Rule 4(a)(2) (providing that “cognizable misconduct includes: (A) engaging in unwanted, offensive, or abusive sexual conduct, including sexual harassment or assault; (B) treating litigants, attorneys, judicial employees, or others in a demonstrably egregious and hostile manner; or (C) creating a hostile work environment for judicial employees”) and Rule 4(a)(3) (providing that “cognizable misconduct includes discrimination on the basis of race, sex, gender, gender identity, pregnancy, sexual orientation, religion, national origin, age, or disability”).

You can read all of the proposed revisions here.

Supreme problems

A lot of attention is focused on goings-on related to the U.S. Supreme Court – and rightly so given the stakes and given the nature of the saga that continues to unfold.

But, lost in the shuffle is the fact that 2 state Supreme Courts in our nation are, at present, entirely in a state of disarray.  One of them – West Virginia – has descended into chaos as a result of something that appears, to some extent, to simply be a naked political power play.  The West Virginia legislature has impeached all 4 0f the justices remaining on its state supreme court.  That court has only 4 justices because one resigned shortly before the impeachment proceedings were set to begin.  Some media reports focus on the fact that this effort could permit the current Governor of West Virginia to appoint an entirely new state supreme court.  But the effort seems to go beyond party-line politics as elections for the West Virginia Supreme Court became non-partisan in 2015 and two of the justices impeached previously ran as Republicans while two had run as democrats.  And to make matters a bit less clear, one of the four justices also is the subject of a 20+ count federal indictment, and the one who resigned before impeachment proceedings began has also agreed to plead guilty to a criminal charge.  The impeachment charges vary a bit as the only thing that all four justices alike were charged with was failing in their administrative duties, three of them were impeached for paying senior status judges more than the law allows, and two of them were also impeached in connection with monies they spent refurnishing their offices.

The other situation also has the portent of removal from office of a majority of members of a state’s highest court but involves the prosecution of a judicial ethics complaint instead of something that is complicated by issues involving separation of powers and what sort of role politics is playing in the process.

In Arkansas, the Judicial Discipline and Disability Commission filed formal disciplinary charges against six of the seven sitting justices in that state over the Court’s treatment of a trial court judge.  The trial court judge filed a disciplinary complaint against all seven of the justices, and, just this past week, a special disciplinary counsel has filed a formal complaint for discipline against 6 justices for their actions in ordering that all of the trial court’s cases involving the death penalty be reassigned after giving the trial judge next to no notice of what was happening.

Now there is certainly a political undercurrent to the Arkansas situation – given that the underlying issues revolve around the death penalty – but, unlike what appears to be going on in West Virginia, the Arkansas process at least feels less like anything that could be described as a political power grab.

You can read the 10-page disciplinary complaints against each of the six justices here [each complaint is essential identical), but let me offer a very short synopsis of the events.

Arkansas, like my own state, has watched its judicial process struggle with questions about the mechanics involved in carrying out death penalty sentences, specifically questions about whether the use of a particular three-drug compound to accomplish lethal injection is constitutional or amounts to cruel and unusual punishment.

In Arkansas, a lawsuit was filed on April 14, 2017 by one of the manufacturers of one of the drugs proposed to be used in Arkansas’s three-drug protocol seeking an order that the State of Arkansas not be permitted to use its drug for that purpose.

That case was assigned to Judge Wendell Griffen, and Judge Griffen swiftly entered a requested TRO prohibiting such use by 4:25 pm on April 14.  Judge Griffen is outspoken in his personal opposition to the death penalty and even reportedly participated in an anti-death penalty march around the time of the entry of this injunction.  The Arkansas Attorney General immediately filed an emergency petition for mandamus and prohibition on the next day April 15, which was a Saturday.  The Attorney General was seeking to have the TRO vacated and Judge Griffen removed from the case.  By a little before noon on April 15, the Court sent out a notice providing the parties with a deadline for responding to the petition by 3:00 pm on that Saturday.  Because of the nature of the proceeding – one seeking mandamus and prohibition – Judge Griffen should have been copied on all of the filings to this point but had not been.  The Clerk of the Court realized later in the day that Judge Griffen had not been given any notice and sent an email with copies of the filings to Judge Griffen’s chambers email address just before 4:30 pm on that Saturday providing a deadline for responding by 9:00 a.m. on Monday April 17, 2017.

When that deadline came and went without a response from Judge Griffen, the Arkansas Supreme Court entered an order that not only vacated the TRO but made a ruling regarding Judge Griffen that no party had requested – that all the cases assigned to him involving the death penalty were to be reassigned and that any future cases also be reassigned and that he be referred to the Committee for potential discipline.

Ten days later, Judge Griffen filed a judicial disciplinary complaint against all seven members of the Arkansas Supreme Court.  In what seems like a remarkably bad judgment call, one of the justices responded – apparently on behalf of all of them – with an argument that the Commission did not have jurisdiction to take any action.

The fundamental takeaway from the decision of the Judicial Discipline and Disability Commission to move forward with formal charges is difficult to pinpoint as the order finding probable cause does not directly engage in much analysis of any particular judicial ethics rule.  Rather, the order sets out a number of rules stated as being implicated in evaluating all the parties but does not do more than that.  The only one in the mix that seems to apply directly to the question of the justices conduct in taking action against Judge Griffen with the barest of notice though is Arkansas Code of Judicial Conduct Rule 2.6(a): “A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.”

The other rules flagged largely would appear to be more pertinent to questions about whether it is appropriate for Judge Griffen to hear cases involving the death penalty or not.  Along those lines, the order manages with one noteworthy paragraph to put in stark relief the Commission’s willingness to conclude that the justice may have acted arbitrarily and capriciously and explain why those who would jump to a conclusion about whether Judge Griffen’s conduct was wrongful should not move so hastily:

In acting on such matters involving judges, it is important to consider the well established case law that judges are presumed to be impartial and unbiased and presumptively will act with honesty and integrity in adjudicating cases.  [citations omitted] A personal belief of a judge, even if expressed publicly by word or conduct, is insufficient to overcome this strong presumption of a judge’s impartiality in ruling on matters of law before the court.

Any outcome in this matter will certainly bear watching.  Not only is a special prosecutor involved in the bringing of the charges, but any ultimate resolution of the case would likely eventually have to be heard by a specially-appointed set of replacements for the sitting justices.

Lawyers (but really judges) in a #meToo world.

I was fortunate enough to be invited to speak last week at a half-day seminar that was called a “#meToo CLE” and was focused on legal and ethical issues for lawyers in the environment that now exists after #meToo went viral.

I was the only male speaker at the seminar and fully recognize that still might have been one too many male voices for the topic.  Nevertheless, it was an honor to participate all the same.  Sitting through the two hours of presentations before mine was a thought-provoking time as it helped to drive home many systemic problems still prevalent that become overwhelming to think about.

Some of my time spent talking through ethics issues for lawyers in a #meToo world focused on Tennessee’s rejection of a proposed RPC 8.4(g) and how that leaves us in a position where there is little, if anything, in our ethics rules to address toxic conduct by lawyers when representation of a client is not involved.

I spent some of the time talking about the fact that there is more, significantly more, built into our judicial ethics rules not only to stop judges from engaging in this kind of behavior but that also requires at least some form of what would, strictly speaking, be classifiable as judicial activism — doing what must be done to stop others from behaving in this fashion.

Specifically, we have adopted RJC 2.3 Bias, Prejudice, and Harassment – patterned after the ABA Model —  and it requires the following of judges in Tennessee:

(A)  A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B)  A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C)  A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Tenn. Sup. Ct. R. 10, RJC 2.3 (all emphasis added by me)

This obligation of judges not only to personally avoid engaging in harassment both on and off the bench but also to stop others within their control, including lawyers, from doing so has stayed on my mind after the seminar for two reasons.

The first is the recent news of the release of this working group report that was submitted to the Judicial Conference of the United States declaring, among other things, that federal judges “have a special responsibility to promote appropriate behavior and report instances of misconduct by others, including other judges.”  The working group report also recommended that existing codes of conduct need to be revised to make clear that retaliating against someone who reports misconduct should itself be treated as judicial misconduct and that the obligations of confidentiality that court employees have do not extend so far as to prevent them from reporting misconduct.

The second is that we’ve got some contested judicial elections going on in Tennessee and I’m very curious whether any candidates will make this topic into a campaign issue.  Candidates for elected judicial positions are often very constrained in what they can say about how they will go about their jobs because of the problems associated with staking out public positions on matters they will have to later adjudicate.  Judicial ethics rules are rife with restrictions on campaign speech,  such as rules prohibiting promises or pledges about how they would rule on a particular case or on a particular legal question that may come before them.

But, this issue, and particularly, what a candidate might plan to do in keeping with his or her ethical obligations once on the bench to police bad behavior and not permit court officers to engage in harassment would be something that might well move the needle with some voters and would not be the kind of statement about issues relating to cases that judges should shy away from in order to avoid having to recuse in the future.

The good and bad of social media on display

Today’s title refers to two developments worth writing about that caught my attention in the last little bit that only have the issue of social media in common.  I will try to let the reader decided which is which (or if both are both) in due course.

The first development is an example of a lawyer behaving badly who managed to get caught in a lie because of his own social media posts proving that he had not been truthful with a federal judge.  Now lying to a federal judge is never a good choice to make, but doing so and then providing the seeds through social media for someone to prove that you did is just… well… “sloppy” seems like the wrong sort of word given that it appears to imply a value judgment that the “wrong” here is not the falsehood, but the careless unwillingness to try to maintain the facade.  Nevertheless, that is the one of the takeaways of the short version of the story of how this New Jersey lawyer ended up in this situation.  In summary form, lawyer blew some important deadlines, told the court it was because of a family medical emergency, but posted on several occasions during the time period in question on Instagram pictures showing she was on vacation in Miami, traveling and sightseeing in New York City, and other places.  You can read the much longer version at the link.  In the end, it was the freedom (and accompanying folly) that robust use of social media can bring that brought the lawyer down but that also brought the truth to light.  As the story reveals, the lawyer now no longer represents the clients in question and, instead of learning the art of the Latergram has, at least, now managed to set her Instagram account to private.

The second is a new judicial ethics opinion issued out of Massachusetts that continues the process of taking Massachusetts down a path in which judges cannot have lawyers as “friends” on Facebook at all if those lawyers are likely to appear before the judge.  I learned about CJE Opinion No. 2018-03, and the earlier opinion on which it builds (Letter Opinion 2016-01), because it was circulated on a very robust (and very valued) listserv/forum that is available to members of the Association of Professional Responsibility Lawyers.  (If you aren’t an APRL member, it is always a good time to explore the benefits of membership.)  This opinion talks about the obligation of judges to disclose to litigants whether they used to be Facebook friends with any of the lawyers appearing before them since the earlier opinion mandated that they delete lawyers as friends.  I normally like to proffer original content here, but, in this instance, I’ll simply restate the opinion I offered on that forum a few days ago.  (Repasting it seems particularly appropriate where loyal readers will recognize that the sentiment is pretty much repetitious of earlier content here anyway.]

Well, that’s a pretty silly add-on to an inherently silly underlying opinion.  The judicial ethics rules don’t prohibit judges from having friends who are attorneys.  If someone can be a friend IRL, then there is no reason they cannot appear as a friend on social media.  The fact that this entity had to issue this opinion about how long you have to disclose that you essentially tried to cover your tracks by deleting attorneys from your connections belies the point that allowing/encouraging judges to go about their normal friendships on social media is actually a good thing since it permits a way to “search up” information they might not disclose about relationships they have with the attorneys appearing before them.

In fact, the only thing that judicial ethics opinion writing bodies ought to be mandating is that judges make certain that they have their settings established in a way that lets the public have access to their list of friends/connections even if they put all of the rest of it into a “private” setting.