Judicial Ethics Legal ethics

Secret recordings can be good. Electing judges kind of can’t.

So, the reasons secret recordings will always happen in “one-party” recording states is that they get to the truth. Lots of people do not like them though. And judges absolutely loathe the notion of being secretly recorded. They do not like them so much that sometimes no matter what the secret recording reveals they will direct their ire toward the person who did the recording rather than whoever may have been revealed to be involved in something less than honorable.

I know this to be true from confidential situations of which I can never write publicly, but the Show Me State gives a now-public example of at least one judge ending up being very unhappy that a secret recording was made of him.

At the end of last month, a Missouri lawyer — who was serving as a judge — was suspended from the practice of law for two years for misconduct that was brought to light as the result of a secret recording made by a judicial candidate for his office. The story not only reflects an example of why secret recordings can be a net-positive for society even though the act of making them may feel “dirty,” but also reflects yet another example of why having judges be elected is likely really not the best way to do things.

You can read the full 22-page opinion here. But let me offer a short summary of the situation and an overview of the misconduct findings.

So Phillip Prewitt was sitting as a judge in Macon County Missouri in 2018 and Kristen Burks was running against him. Burks had previously run, unsuccessfully, against Prewitt for the same position in 2014. Burks sent out a mailer during that prior campaign that accused Prewitt of misleading voters.

In the lead up to the next election in 2018, there was a run-in between the two outside the courthouse. Prewitt says he only inquired about whether Burks was running again. Burks testified that he said that and said that if she did run he’d file an ethics complaint against her for the 2014 campaign flyer.

Unfortunately for Burks, her husband had been unfaithful to her in the past and apparently his infidelity was known within some circles but it did not come out during the 2014 campaign. Burks learned from supporters that there was reason to think that Prewitt was going to make Burks’s husband’s infidelity a “campaign issue.”

Subsequently, Burks found an anonymous letter in her mailbox addressed to her minor daughter that “crudely” discussed the father’s infidelity. Burks thought Prewitt to be the letter writer and contacted the police who contacted the FBI. The FBI then rigged up Burks with recording equipment and sent Burks into a restaurant to meet with Prewitt. That is where the secret recording for which Prewitt was disciplined occurred.

(Dear readers – please do note this “plot twist” is not at all a plot twist. Pretty much the only secret recordings that anyone can ever safely use without ramification are ones that happen in cooperation with law enforcement. All other secret recordings — even if they are lawful — are highly dangerous to make use of.)

During that recorded conversation, Prewitt plainly stated that he would make the affair a topic at his campaign speeches and that it would be an “ugly campaign.” During that recorded conversation, Prewitt also discussed information he had learned in his capacity as a divorce lawyer before taking the bench.

Burks then filed a complaint against Prewitt with the judicial ethics body and contacted Prewitt’s former client to give her a heads up that she had been mentioned in the conversation by Prewitt. That former client, who it would seem was one of the people with whom Burks’s husband had an affair, was not happy and spoke with Prewitt but then also sent her own letter to the judicial ethics body.

Burks ended up winning the 2018 election and Prewitt never followed through on talking about her husband’s affairs during his campaign appearances.

Prewitt was determined through his threats to his opponent to have violated two judicial ethics rules and one attorney ethics rule. The two judicial ethics rules at issue were RJC 1.2 (“A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”) and RJC 1.3 (“A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”)

The attorney ethics rule in question was RPC 8.4(d) preventing attorneys (even when they are sitting as judges) from engaging in conduct prejudicial to the administration of justice. and his disclosure of information related to his representation of a former client was deemed to have violated another attorney ethics rule, RPC 1.9. That portion of the opinion contains a fairly icky section involving trying to determine whether the kind of gossip that can spread quickly in a small town constitutes information becoming “generally known” for purposes of the ethics rules.

Because judges in Missouri are elected — and thus they are made to be political creatures — Prewitt of course argued that his statements should be protected speech under the First Amendment. That argument might have been more successful had his threats not included filing an ethics complaint against Burks if she ran.

In determining the appropriate discipline to mete out, Prewitt’s past disciplinary history did not help him. If you have a bit of a jaundiced view of judicial elections like I do, you might not be surprised to learn that Prewitt had been disciplined in the past for, among other things, threatening another elected official that he would get involved in the campaign against her if she did not remove his election opponent’s sign from her yard.

Obviously, no process for getting judges into position is perfect and doing so only through appointments made by other elected officials does not fully remove politics from the process, but electing judges in public campaigns is still pretty much the absolute worst option available.