Dec. 31, 2007 - Federal Judge in Denver decrees that
Colorado's Attorney Regulation Counsel has no basis for directing complainants to first obtain findings from a court as a condition precedent to initiating an investigation
THE COURT: Well, this started out as
a motion under U.S. Judicial Canon 3B for this court somehow to refer
this to the state disciplinary board,
right?
PLAINTIFF: Yes, it did.
THE COURT: Well, you can do that. You
can do it. You can file a complaint against any of these gentlemen with
the state regulatory council. And it's my impression that you have. Have
you not?
PLAINTIFF: Yes, we
have.
THE COURT: Why does this
court need to do it? The regulatory council has all the resources it
needs to make determinations, and does regularly make determinations
concerning whether attorneys have behaved ethically.
PLAINTIFF: Well, my first contact with
the attorney regulation council, I was still in Steamboat. They said
that they needed a finding from a court of law before they would act.
That's what Matt Samuelson told me.
THE COURT: Well, I don't know the context in which those words
were spoken, and I don't know what you had asked, and I don't know what
the problem was. But my understanding of the Colorado rules of attorney
conduct is that upon the filing of a complaint, they do whatever
investigation they need to have done, and they make whatever findings
they need to have made, and they issue whatever orders they need. They
don't need a recommendation from this court. You know, if that is what
he said, he's wrong.
Judge Nottingham got
one issue half right: He would be correct that, under C.R.C.P.
251.9, a complainant need do no more than file a complaint that contains
allegations, which,if proved true, would constitute a rule violation.
That's all it takes. Moreover, in People v. Musick, 960 P.2d 89 (Colo. 1998) the Colorado Supreme Court explained:
[W]e have never held that a complaint must charge a violation of the criminal law before . . . behavior can be found to reflect adversely on a lawyer's fitness to practice law. As we said in
People v. Crossman, 850 P.2d 708 710-11 (Colo. 1993), ‘[w]e agree with the Supreme Court of Florida that “[i]mproprieties that directly and intentionally harm others always are serious offenses in the eyes of this Court.”
Florida Bar v. Samaha, 557 So. 2d 1349, 1350 (Fla. 1990) (emphasis in original).’ In
People v. Brailsford, 933 P.2d 592, 595 (Colo. 1997), we observed that ‘the actual nature of [the attorney's] conduct . . . is more important for disciplinary purposes than the statutory label put on it.’
Yet, our
Attorney Deregulation Council has, indeed, been informing complainants contrary to C.R.C.P.
Rule 251.9 that they must first obtain findings from a criminal or civil court,
as these quotations from memoranda of various assistant regulation counsel
(Louise Culberson-Smith, James Coyle and Matthew Samuelson) prove:
March 22, 2005: "I have repeatedly offered to reconsider this aspect of your complaint if you provide evidence of a court's decision or finding against
Ms. Wilson . . . this particular matter remains dismissed and closed, subject to reconsideration if you supply the previously requested court decision or judicial findings"
March 24, 2005: "As I have told you many times before, if a civil court specifically finds
Ms. Wilson has somehow acted improperly in your case, you may forward those judicial findings to my office for review on whether such findings provide a basis for regulatory action."
March 15, 2005: "As I have told you many times before, if a civil court specifically finds
Ms. Wilson has somehow acted improperly in your case, you may forward those judicial findings to my office for review on whether such findings provide a basis for regulatory action . . . you may request reconsideration of this issue by providing us a copy of the court's decision against
Ms. Wilson. To date, you have not provided any court decision or findings against
Ms. Wilson regarding your discovery claims or anything else."
June 15, 2004 "you may request reconsideration of this issue by providing us a copy of the court's decision against
Ms. Wilson. To date, you have not provided any court decision or findings against
Ms. Wilson regarding your discovery claims or anything else . . . my office's policy remains as I have informed you before: we will not reconsider your complaint again unless you provide the above-mentioned judicial findings. Consequently, we ask that you kindly refrain from contacting us about this particular matter except for providing those court findings."
August 26, 2003: "We will not reconsider you complaints about
Ms. Wilson unless you provide judicial findings against her from your case or a notice that Ms. Wilson has been convicted of or has pled guilty to a criminal violation."
August 21, 2003: "As I told you before, if a civil court specifically finds
Ms. Wilson has defrauded you or otherwise acted improperly, you may forward those judicial findings to our office for review on whether such findings provide a basis for regulatory action . . . if the court rules in your favor, you may forward the court's findings to our office for review . . . Please note that we will not reconsider this matter again unless you provide the above-mentioned judicial findings and/or notice of
Ms. Wilson's criminal conviction. Consequently, we ask that you kindly stop contacting us about this particular matter except for providing those court findings or conviction."
August 21, 2001: "you should first address your concerns with the court in the underlying civil proceeding. If the court determines that the attorney has engaged in any misconduct as you have alleged, then please feel free to resubmit this matter to this office for investigation."
August 14, 2001: "the allegations that you have made in the civil matter closely parallel those you make in this disciplinary proceeding. You must prove your case in the civil proceeding by a preponderance of the evidence. In disciplinary proceedings, our office must establish the same allegations by a higher, more difficult standard,
i.e. by clear and convincing evidence. Thus it makes sense to defer disciplinary proceedings until you have resolved the civil matter. If the court determines that the attorney has engaged in any misconduct as you have alleged, please feel free to resubmit the matter to this office for investigation."
The part Nottingham did not get right is that it is
the obligation of judges to report misconduct, rather than leave this to the
party aggrieved. According to the ABA Standards for Imposing Lawyer
Sanctions:
It cannot be emphasized strongly enough that
lawyers and judges must report unethical conduct to the appropriate
disciplinary agency. Failure to render such reports is a disservice to the
public and the legal profession. Judges, in particular, should be reminded
of their obligation to report unethical conduct to the disciplinary
agencies.
Under Canon3(D)(1) and (2) of the ABA Model Code of Judicial Conduct, a
judge who receives information indicating a substantial likelihood that
another judge or a lawyer has violated the applicable rules of professional
conduct is obligated to take appropriate action. This action includes making
a report of the violation to the appropriate authority when the violation
raises a substantial question about the judge’s fitness or the lawyer’s
honesty, trustworthiness or fitness.
Frequently, judges take the position that there is no such need and that
errant behavior of lawyers can be remedied solely by use of contempt
proceedings and other alternative means. It must be emphasized that the
goals of lawyer discipline are not properly and fully served if the judge
who observes unethical conduct simply deals with it on an ad hoc basis . . .
the lawyer discipline system is in addition to and serves purposes different
from contempt powers and other mechanisms available to the judge.
Only if all lawyer misconduct is, in fact, reported to the appropriate
disciplinary agency can the legal profession have confidence that consistent
sanctions are imposed for similar misconduct.
Id. at § I (A), p. 5. [internal brackets omitted].
Dec. 31, 2007 - 2007
Year-End Report on the Federal Judiciary contains familiar illusory "tough talk"
about judicial discipline
"[T]he Judiciary must relentlessly ensure that federal judges maintain the
highest standards of integrity. Federal judges hold a position of public trust,
and the public has a right to demand that they adhere to a demanding code of
conduct. The overwhelming majority do. But for those who do not, the Judiciary
must take appropriate action. Last year, a study committee commissioned by the
former Chief Justice and chaired by Associate Justice Stephen Breyer issued a
Report on the Implementation of the Judicial Conduct and Disability Act of 1980.
While the study committee found that, overall, the Judiciary does an excellent
job of handling complaints about judges, it also found that there remains room
for improvement. The Judicial Conference has implemented eight of the twelve
recommendations in the Report, and the remaining four will be considered at the
Conference’s next meeting. James Madison observed in Federalist No. 51 that, if men were angels,
there would be no need for government. Likewise, if judges were beyond
imperfection, there would be no need for judicial discipline procedures. History
and human nature teach that the Judiciary must be continually vigilant in
maintaining the high standards of judicial office. When entertaining a complaint
about a judge, the Judiciary must apply the same qualities of reason,
impartiality, and wisdom that epitomize the judicial process. The Judiciary
cannot tolerate misconduct. The public rightly expects the Judiciary to be fair
but firm in policing its own."
2007 Year-End Report on the Federal Judiciary
Dec. 31, 2007 - Deanell
Reece Tacha's 7-year term as Chief Judge of the Tenth Circuit ends today.
She will be replaced by Circuit Judge Robert Henry.
>> full article text >> Let's see if judicial misconduct complaints
receive any different handling.
Dec. 26, 2007 - Occasionally,
Judges Do Admit that Appellate Opinions Deliberately Misrepresent Facts to
Reach a Desired Result
Aside from Karl Llewellyn's commentary in The
Common Law Tradition: Deciding Appeals (1960) at 133 (discussing
judges "manhandling of the facts of the pending case, or of the precedent, so as
to make it falsely appear that the case in hand falls under a rule which in fact
it does not fit, or especially that it falls outside of a rule which would lead
in the instant case to a conclusion the court cannot stomach"), it's unusual to
read official acknowledgment that judicial opinions actually endeavor to
misrepresent facts. Out of Florida, Judge Terry Lewis spoke of judicial
conduct, "demonstrating a willingness to ignore legal precedent and principles
in order to reach a desired result," in his
Nov. 21, 2007 opinion essay appearing in the Tallahassee Democrat.
However, on December 26th, West Virginian Appeals Court Judge Starcher published
his
dissent in Riggs v. W. Va. Univ. Hospital, where he wrote:
I have read, and re-read, and re-re-read, the majority’s opinion. I don’t
know what was in the Kool-Aid they were drinking, but I believe that the
opinion is one of the most factually misleading and legally pernicious cases
to be produced by this Court . . . If there is any light to be found in the
majority’s opinion, it is in the fact that it did not actually address the
parties’ legal arguments. I suspect it was because the majority opinion
could not do so without either issuing an opinion unfavorable to the
hospital, or issuing an opinion that was more factually and legally wrong.
Sounds to me like this opinion was actually written by a
stubbornly litigious pro se
paranoiac, who hacked into the judge's
computer and assumed his identity.
Dec. 20, 2007 -
Attorney David Brougham (Hall & Evans, LLC) can't seem to explain to
Disgraced Judge Edward Nottingham how
ex parte conferences between counsel and magistrate judge Schlatter ended up on
a billing statement charged to losing party
Now, as you read this excerpt (hereinbelow), recall that Magistrate
Schlatter is the same magistrate, who went on record to say that
pro se parties will not get their
day in court. (Click
here). So, it shouldn't come as any surprise that he would have
entertained ex parte conferences
with counsel.
My second observation is that Nottingham reminds us all that having one's
day in court is not a right but, rather, a dispensation by His Majesty. He
did so by telling Kay Sieverding's husband that, because the husband seems
like a more reasonable chap, he gets the opportunity to have his "say" and,
thus, a "hearing" (whereas Mrs. Sieverding would not be afforded a similar
opportunity).
My third observation is that this wasn't a "hearing" at all. Rather, we
have an attorney, David Brougham, giving testimony (by his own admission) in
violation of Rule 3.7 and the husband was never given an opportunity to
cross-examine Brougham to fillet apart his unpersuasive story.
Finally, as
you read the excerpt, keep in mind District of Colorado Local Civil Rule
77.2, entitled "Ex Parte Communication with Judicial Officers,"
which provides that "No attorney or party shall contact orally a judicial
officer regarding any case by telephone, in person, or through any other
means, unless all other parties in the matter, or their attorneys, are
present or on the telephone.”
Judge Nottingham:
All right. So those are the three things you want, you want this court
to make a finding that there were ex parte
communications, you want the Court to enter a default judgment against
the defendants because of the ex parte
communications, and you want the Court to strike the magistrate judge's
recommendation because of the ex parte communications?
Plaintiff:
Yes.
Judge Nottingham:
All right. Now, I've received a response filed by counsel for, I guess,
the Steamboat Springs defendants, namely, Mr. Brougham. Mr. Brougham,
here is the only question that I have: I read through all of this
stuff. And the one thing that struck me as at least badly worded was an
exhibit 1, purporting to be a bill from Lettunich & Vanderbloemen -- and
I may be mispronouncing that -- which in an entry on the 12th of
February, 2003 talks about a conference call to Magistrate Schlatter.
And it's not clear whether that was a conference call with the parties
present or what. Do you know what I'm talking about?
Mr. Brougham:
Yes, Your Honor.
Judge Nottingham:
I know that's very specific.
Mr. Brougham:
I --
Judge Nottingham:
The other thing -- where you're talking with the clerk, I understand
that. But this one, I need a bit of explanation.
Mr. Brougham:
Yes, Your Honor. It never happened, as was written by Mr. Lettunich.
Of course, I've seen this bill used 20 times by the woman who I
believe really wrote all of th[ese motions], submitted to this court, to
the Circuit, to the United States Attorney's Office, requesting filing
of charges, to the FBI. It's been filed in other states. I obviously
don't know what happened that day other than what my bill reflects.
But my bill reflects that I called the court clerk downstairs with a
question, and I frequently did. As I -- you know, I realize what I put
in my response is gross hearsay, but --
Judge Nottingham:
But this is an exhibit on the letterhead of Lettunich & Vanderbloemen,
suggesting it's not your bill anyway.
Mr. Brougham:
Correct. They have concocted that piece of evidence by saying that my
verification from my billing verified that billing.
Judge Nottingham:
Well, I understand that, but --
Mr. Brougham:
Which I never did.
Judge Nottingham:
But I don't understand why somebody from that law firm had the entry
"conference call to Magistrate Schlatter."
Mr. Brougham:
He doesn't either, the author of that. He -- well, he's a city attorney
in Steamboat Springs. He used to be one of our partners. We had an
office there 30 years ago. I used to work there. And he's never been
in federal court. He -- he doesn't remember why he wrote that, but it
just didn't happen. The only -- and as an officer of the court, if I'm
--I suppose I'm speaking sort of under oath [in violation of Rule 3.7],
if you've got a couple of minutes about an earlier reference that
they've made to Magistrate Schlatter saying he had talked to me. When
all of this started six years ago, the Sieverdings filed the lawsuit
that you dismissed three years ago in Steamboat Springs in the state
court. And they didn't like what Judge Doucette was doing, they removed
it, or she removed it, to this court. Judge Matsch sent it back within
24 hours. And it languished there, and I was then retained by the city
to do whatever might need -- might need to be done. At the same time
Mrs. Sieverding filed the same lawsuit in the federal court in
Wisconsin. And the City was notified of that fact, and I was brought
into it with a question about whether we should do something about the
Wisconsin lawsuit. Now, this is before the case ever came to this court
that's the subject of 02-1950. And in the middle of that Wisconsin
discussion about whether we should do something back there when nobody
had been served, I was coming with an associate to show her how to do a
scheduling conference in front of Magistrate Schlatter. And I don't
know who the judge was, but the question was, should we bring our
calendars? Did the -- did the Article III judge who was handling that
case 2000 -- early 2003 -- 2, maybe, did he want -- did he set trials at
the scheduling conference? So I said, I don't know, and I called Shawn,
Magistrate Schlatter's secretary, and I said, does Judge so and so set
trials at the scheduling conference? Some of you do, some of you
don't. And she said, I don't know, why don't you ask him. And he said,
yes or no, I forget. But he said, say, I'm reading this 400 paragraph
lawsuit, and I see your name in it. I just got it. And it's the one
that led to 02-1950. And I said, yeah, I've seen it several times. He
said, are you going to represent City of Steamboat Springs? And I said
yes. He said, well, what I think I'm going to do is set a status
conference, so I'll have Shawn clear a date through you. That is the
only conversation I've ever had with Magistrate Schlatter about this
case. I never did after that. My former partner up in Steamboat and
present -- he and I are pretty good friends -- he said, I don't know why
I wrote that down. I thought that's who we were talking to. Actually,
you may recall, or you may not, one day I was downstairs, I don't know,
two or three years ago, talking to Robert. And they had brought out the
Sieverding pleadings, which are about this high (indicating). And you
walked by and said something to me. And I said, I'm working on this
thing, which I just -- just got assigned to you. And you said, yeah, or
you walked off. But, anyway, I was in the habit -- I did not catalog
this nonsense. And I would get several pleadings per day. And I had a
stack of them and just didn't -- you know, I couldn't reference
something by number. We're up to, what, 1,060 now? In any event, I was
in the habit of talking to Robert and Kathy, who retired a couple of
years ago, she was on top of this, saying, where are we, what has been
filed lately? And I frequently talked to the appellate clerk, I forget
what her name was, who had to gather all this nonsense and send it
across the street. So I talked probably two dozen times to staff
downstairs.
Judge Nottingham:
All right.
. . .
Judge Nottingham:
This court reviewed the matter . . . in this instance, the Court sees
no harm and no foul . . . Because I find -- and the other thing that
concerns the Court is the stray document on the billing stationery of a
firm in Steamboat Springs where one entry records supposedly a
conference call to Magistrate Judge Schlatter. The representation has
been that the attorney in question has never been in federal court. . .
. There has been no suggestion, nor could there be, in my opinion, of
any ex parte
communication that any attorney has had with me, this judge, district
judge, except, I gather, by the internet. And when Mrs. Sieverding
wishes to come into court and make that allegation, I guess we'll deal
with it then. Mr. Sieverding, it is my view that in this litigation
you have been less obstreperous than your wife. And for that reason,
I'm holding this hearing. I'm letting you have your say. I think you
are incorrect. I disagree with you. You are free to take that to the
Court of Appeals if you want to, but don't continue to pepper this court
with motions.
Now, I don't know about the rest of you but, I didn't find Brougham's
stammering ("He -- he doesn't remember why he wrote that, but it just didn't
happen") very convincing. In fact, reading through his babbling diatribe
(and also the statements that follow in the full transcript (click
here)),
it seems clear that Brougham was throwing focus away from the key issue by
playing up to Nottingham's disdain of Kay Sieverding. In fact, at one
point, he even mentions that Sieverding has made less-than-flattering
comments on the Internet about Nottingham, himself. How thoughtful of Mr. Brougham to be
looking out for His Majesty's best interests.
In the end, the attorneys get another pass (score) from the bench, which
comes as no surprise to us.
Dec. 20, 2007 - Federal
Judge in New Orleans referred for Impeachment. Could Nottingham be next?
Although internal investigations of federal judges are rare and, although no
judge not indicted has ever been impeached, the Fifth Circuit has referred
Thomas Porteous, Jr. for impeachment. Porteous was adjudged to have: filed
"numerous false statements under oath" during his joint bankruptcy proceedings
with his wife; concealed assets; failed to identify gambling losses; violated
Bankruptcy Court orders against taking on more debt; engaged in fraudulent and
deceptive conduct" concerning a debt he owed; and took gifts from attorneys with
cases on his docket and failed to report them for six years (from 1994 to 2000).
The full text article regarding Porteous, including links to the rulings, is
here. Here in Colorado, we are awaiting the outcome of an FBI investigation
concerning federal
Chief Judge Nottingham's alleged use of courthouse computer equipment
for one-handed Internet surfing. Also, an inquiry may be or has been initiated
against U.S. Magistrate Judge Michael J. Watanabe, to determine whether he failed to report income
from a lobbying group, whose constituents have appeared as defendants in cases
before him or whether his speaking engagements for the lobbying group
constitutes the appearance of impropriety in violation of the applicable
judicial canons. (Click
here).
Dec. 17, 2007 - Unheard
of: federal district court acknowledges pro se defendant's argument and
sua
sponte sanctions attorney misconduct
In its
October 22, 2007 Order granting
pro se defendant Philip Smith’s motion for summary judgment, the District Court
of South Carolina dismissed defamation, trademark infringement, and invasion of
privacy claims brought by plaintiff BidZirk LLC, an auction listing company.
The claims arose out of the defendant’s publication
of articles on his blog, featuring plaintiff’s trademark, that were critical of
plaintiffs’ eBay auction listing business. Plaintiffs asserted that Smith’s use
of their mark in an article critical of plaintiff’s business tarnished their
famous trademark in violation of the Federal Trademark Dilution Act (“FTDA”).
The Court held plaintiff’s trademark dilution claims failed because defendant
used the mark in connection with “news reporting and news commentary,” a
non-actionable use under the Federal dilution statute.
Pursuant thereto, a party cannot be found guilty of
diluting the mark of another if the mark is used in “news reporting or news
commentary.” 15 U.S.C. § 1125(c)(4)(C). The Court
held that Smith’s use of the trademark was, in fact, a protected use in the
course of “news reporting or news commentary.”. The court noted that, while “not
all bloggers are journalists, some bloggers are, without question,
journalists.” The Court had examined “the content of the material, not the
format, to determine whether it is journalism.” The Court found that it was
not written solely to denigrate plaintiffs but, rather, it was written for the
purpose of conveying information to the public about the use of auction listing
companies, based on the author’s personal experience and supported by his
research. It also provided a checklist to aid consumers in selecting such
companies. These attributes “evidences [an] intent to report what [Smith]
believed was a newsworthy story for consumers.”
The court further dismissed plaintiffs’ defamation
claim, finding the challenged statements non-actionable statements of opinion.
Said the Court, “Opinion statements, defamatory or otherwise, are not actionable
unless they contain provably true or false connotations.” The statements were an
opinion statement that could not be fairly characterized as true or false and,
which statements included terms that have, “different meanings to different
people.” Thus, because the statement was not capable of being characterized as
false, there was no liability for defamation.
Finally, the Court dismissed plaintiffs’ invasion of
privacy claim, arising from a link found on Smith’s blog to a picture of
plaintiffs found elsewhere on the Internet, accompanied by Smith's commentary.
According to plaintiffs, the accompanying text implied that they were
‘irresponsible and overcommitted’ and impermissibly cast them in a false light.
The Court rejected this claim, finding that South Carolina does not recognize a
claim for false light invasion of privacy and, even if it did, the claim would
fail as the article did not cast plaintiffs in a false light and ("Nothing about
Smith’s statements would be highly offensive to a reasonable person,” an
essential prerequisite to a false light invasion of privacy claim").
Similarly, plaintiffs’ ‘wrongful appropriation of
personality’ invasion of privacy claim failed: A required element of such a
claim is the “intentional [non-consensual] use of the plaintiff’s name,
likeness, or identity by the defendant for his own benefit,” which was missing
here. Smith did not use a picture of plaintiffs but, instead, only linked to one
found on another site. In addition, plaintiffs waived any privacy right they
had in the photograph in question by consenting to its use on the
other non-password protected internet site. Finally, there was no apparent
benefit to Smith by his use of the link.
The Court sua sponte sanctioned plaintiffs’
attorney, Kevin Elwell, under Rule 11, for filing a lis pendens against
Smith’s condominium. The Court fined Elwell $1,000, which he directed be paid
directly to Smith.
Dec. 17, 2007 - New
Denver City Ordinance Proposed: Roadside signs to warn, "LITTERING IS UNLAWFUL,
VIOLATORS WILL BE EXECUTED ON THE SPOT."
Click
here. Someone do us a favor, please, and find out if this grand jury
outcome was the result of a jury instruction from the bench.
Dec. 12, 2007 - A
decision out of Nevada last week reminds us of an unresolved question here in
Colorado: Did Federal Magistrate Michael Watanabe Properly Disclose Membership
in and/or Payment from Purported Non-Profit Organization, whose members and
officers have appeared before him as defendants in civil cases?
That same questions was posed in a
group complaint to the Chief Judge of the district of Colorado.
Watanabe, apparently, was a speaker in October of 2006 for the Denver
Metropolitan Interdisciplinary Committee. (Click
here). Watanabe has
refused to reveal or disclose the presentation materials. (Click
here). The MDIC is a lobby group that advances the interests of
handsomely paid court -appointed custody "experts." (Click
here). Several of members of the group have been defendants in
cases that appear to have been non-randomly assigned to Watanabe
(despite protestations to the contrary (click
here)). Watanabe's
Financial Disclosure Form contains no mention of compensation for the speaking
engagement. (Click
here). A new inquiry is now pending.
Watanabe also is a former Colorado district judge. According to one affidavit,
he informed one pro se litigant that unrepresented litigants never win
in "his" court. (Click
here and see page 20 of 22).
Although, Nevada's Standing Committee on Judicial Ethics and Election
Practices ruled just last week that a judge may "become a member of a non-profit
organization dedicated to advancing public dialogue on foreign relations through
educational events which often involve speakers," it specifically noted that the
interests advanced by the organization "does not involve it in matters which
would ordinarily come before the judge." (Click
here).
To learn more about the problem of seminars or "junkets for judges," click
here. A year-2000 study by the Community
Rights Counsel (C.R.C.) regarding the issue of junkets for judges is located here and
an entire Web site dedicated to the subject of junkets for judges is
here.
Dec. 10, 2007 - Dare to
call a concern regarding judicial temperament to a Judicial Performance
Commission and expect this reply: "[G]et over it and get on with your life."
Seriously. We don't make this stuff up. The text of an email from
Bernie
Herpin is found on our fellow blogger's site, The Colorado Index,
right
here. Apparently, after losing his reelection bid for Colorado
Springs City Council, he took up a position on the Fourth Judicial District
Performance Commission, an apparent refuge for marginalized people clinging to
some kind of power over others. On Herpin's
Web site,
not too far beneath his cheery photograph, he warns us, "In the words of the
Terminator, 'I'll be back!'" `Though I'm sure we'll all miss him terribly during
this time, we think we'd suggest he consider a membership of a different
sort: Jenny Craig.
Dec. 8, 2007 - Musings
on Reporting Professional Misconduct in Colorado
Our fellow blogger at
The Colorado Index has
here prepared a nice write up on the procedure for lawyers reporting
violations of the Rules of Professional Conduct by other lawyers. The only
primary point our fellow blogger appears to have missed is that all Colorado
lawyers know and adhere to the unwritten rule that one does not report his
fellow lawyer, regardless of requirement imposed by Rule 8.3. This unwritten
rule is known simply as, "The Golden Rule." The Golden Rule is violated —and
Rule 8.3 followed— only in rare cases, such as when lawyers are competing with
each other for public office; or when they are personally impacted by the
conduct of an attorney, who has some authority over them; or when there is some
PR element involved. Examples include when Katherine Steers reported Colleen
Truden (click
here) or when anonymous attorneys reported Carol Chambers on at least two
occasions (click
here) or when anonymous parties (probably attorneys) filed a complaint
against Scott Storey (click
here).
Dec. 6, 2007 – Judicial
Performance Commission Overhaul Bill Proposed
We recently received word from a
KnowYourCOurts.com contributor indicating the Vice Chair of the
Colorado Senate Judiciary Committee
Brandon Shaffer (as associate with Grant, Grant & Goiran LLP in
Longmont) is working on a proposed overhaul of the Judicial Performance Review
system (a system that we have previously commented on as illusory and
ineffective). An excerpt from an email from Shaffer’s office appears,
hereinbelow, that summarizes the work.
Thank you for taking the time to write to Senator Shaffer . . . Sen. Shaffer
is an attorney as well as a state lawmaker . . . In the upcoming legislative
session that will begin in January, Sen. Shaffer is actually planning to
introduce a bill concerning the judicial performance review process. One of
the purposes of this bill is to reform the process used to evaluate judges.
The workgroup in charge of this piece of legislation suggested giving
litigants the opportunity to choose the judge that hears their case prior to
the litigation going forward. This practice is currently in place in
Washington state, where it has produced successful results. Sen.
Shaffer’s proposed legislation has a long way to go before it become law;
still, hopefully this concept addresses some of the reforms suggested in
your email.
Our contributor has informed us that his local legislators
Ron Tupa and
Jack Pommer are involved somehow also he also notes that the
legislative workgroup includes
Mike
Valdez and
Sherry Kester.
In addition, our fellow blogger over at
The Colorado
Index attended a public input meeting on the proposal, supra. His opinion
of the effort is located
here.
Nov. 21, 2007 -
Colorado Attorney Deregulation Council's Louise Culberson-Smith rejects request
to investigate report of former judge and attorney may have knowingly used their
position to adversely possess a neighbor's land.
Big Surprise (Not) -
Aside from the fact that this fact
situation "smells," the Rocky Mountain News (RMN) report claims that the
OARC "couldn't consider a complaint against . . . [the]. . . former judge .
. .[because] issues with his conduct must be taken up with the state's
Commission on Judicial Discipline." >>
full article text >> However, in this
recent RMN article (concerning Colorado's
Commission for the Abolition of Judicial Discipline), it was reported
that, "[I]n 41 years, the commission has never recommended to the state Supreme
Court that a judge be removed because of misconduct. Instead, judges often
choose to retire or resign when there's an investigation pending against them.
Once judges leave, the commission loses its power to discipline them, and the
record of their misconduct remains private." So which is it? (Easy answer:
Lawyers protecting lawyers and no one's protecting the public).
Nov. 2, 2007 - article
regarding former judge Grafton Biddle and appearing on Denver Post's "Your Hub"
constitutes a State-of-the-Judiciary version you won't hear from Mary Mullarkey:
"I am always intrigued by people in positions of authority. The judge who
decides your fate, the employer who gives you an annual review, the military
officer who inspects you while you are standing at attention in ranks; there
seems to be no shortage of ego-maniacs who aspire to sit in judgment of their
fellow man. They are everywhere, lording over us, putting us in our place, and
enforcing the rules of class distinction so that we commoners know our
untouchable station in life. They almost always wear a uniform that is black,
starched and pressed and exudes authority. It is only when you see them, wearing
tennis shoes and a polyester jogging suit at the shopping mall after they retire
that you realize the guy was just a human and not God. . . .
"I suspect that when it is all done, Grafton Biddle, soon to be a civilian,
will move to some sunny state and enter retirement. He is in his late 50s and
has been in the system for enough years that I am guessing he has a full
retirement coming and will not hurt financially. . . .
"But the guys sitting in jail wondering whether his tongue slithering down the
unbuttoned blouse of that prosecutor might have sealed their fate with a
conviction they didn't expect might not be as quick to forget."
>> full article text >>
Nov. 2, 2007 - Circuit
Courts Wary of Plans for Policing Federal Bench
When it comes to proposed new rules for disciplining wayward federal judges,
circuit chiefs from around the country haven't been eager to publicly share
feedback and the national committee in charge of fashioning those rules is
withholding the chiefs' critiques.
>> full article text >>
Oct. 25, 2007 - Judges
impose secrecy on remake of ethics rules
As the federal judiciary embarks on a historic revision of its rules against
judicial misconduct, the panel of judges that's overseeing the drafting of new
regulations refuses to disclose the public comments that could help shape the
overhaul.
After requesting public comments about the proposed rules, the Committee
on Judicial Conduct and Disability refuses to say how many responses it
received, who commented or what was said.
"I have never heard of public comments being made confidentially," said Abner Mikva, a retired chief judge of the U.S. Court of Appeals for the District
of Columbia Circuit. "I'm trying to think of an explanation, but this strikes me
as very strange.">> full article text >>
Oct. 24, 2007 - Court
rebukes parents for using legal process to attack and demean each other
Because much of KnowYourCOURTS.com consists of domestic relations (a/k/a
"divorce industry") matters, this unusually blunt rebuke by a New York Family
Court judge of two parents -- one a former doctor and the other a lawyer --
engaged in a "vitriolic and venomous" dispute over child custody and visitation
seems apropos to post here.
>> full article text >> "The parties fit the profile of that breed of
litigant that the family court tends to encounter all too often; the career or
habitual litigant," wrote Judge Conrad D. Singer of Nassau County. "The
adversary system doesn't fit well with the needs of children," said Andrew
Schepard, who heads Hofstra Law School's child and family advocacy fellowship
program and writes a column for the Law Journal.
And see David Heleniak's article (reprinted here with his
permission),
The New Star Chamber (Rutgers
Law Review, vol. 57, no. 3 (Spring 2005), 1009), where he analyzes the "due
process fiasco" of family law, calling family courts "an area of law mired in
intellectual dishonesty and injustice."
Oct. 24, 2007 -
Colorado's infamous Mike Zinna, proprietor of ColoradoExposed.com, appears to
have obtained a default judgment against ColoradoWackoExposed.com.
Zinna appears to have obtained a default judgment against Bob Cook, identified
as the operator of ColoradoWackoExposed.com. (click
here). Zinna's First Amended
Complaint is here. (For more information regarding Zinna and his antics, click
here). The case is
Zinna v. Cook.
Oct. 22, 2007 - New
Study Suggests Good Ol' Boys' Network Gets Lion's Share of Supreme Court's
Attention
The docket of SCotUS continues to shrink, yet dramatic
new research by Georgetown University Law Center professor Richard
Lazarus shows that more and more of the Court's cases are brought and argued by
the seasoned veterans who have honed Supreme Court practice into a fine, and
exclusive, art form: Last term, fully 44 percent of the nongovernment petitions
that were granted review by the Court were filed by such veteran advocates. In
1980, that number was less than 6 percent.
The justices and their law clerks, it seems clear, pay special attention to the
briefs and arguments of these virtuosos of the bar. Chief Justice John Roberts
Jr., after all, was once one of them, arguing 39 cases to the Court in his days
as an appellate lawyer in the private and public sector. Lazarus cites a 2004
survey published in the Journal of Law & Politics indicating that 88 percent of
law clerks openly acknowledged giving extra consideration to briefs filed by
what one called the "inner circle" of the Supreme Court Bar. The clerks, who
play a crucial role in screening incoming cases for their justices, often then
go to work for these same firms, garnering hiring bonuses that this year have
reached $250,000.
Lazarus, founder of the university's Supreme Court Institute, further claims
that the increasing dominance of the veteran Supreme Court Bar is beginning to
have an impact on the Court's doctrine: The study, set for publication soon in
the Georgetown University Law Journal, draws a direct and controversial
connection between the growth of the Supreme Court Bar and the Court's widely
noted new pro-business tilt. Clients willing to plunk down $100,000 or more for
a veteran advocate to petition the Court are elbowing aside the civil rights,
civil liberties and labor groups that once helped set the Court's agenda, the
study suggests. Recent breakthrough victories for business in tort, antitrust
and other areas of the law can't be explained totally by the Court's overall
conservative majority, Lazarus says. The elite Supreme Court Bar has played a
pivotal role, he asserts.
"The advocacy gap in the Court between those who can pay and those who cannot,"
says Lazarus, is "bad for the legal profession, the Court, and its rulings."
Oct. 22, 2007 -
Third
International Legal Ethics Conference, primarily focused on Integrity in Legal
Practice, has posted a formal
call for papers
on their
Web site.
Additionally, there are several sub-topics, which will be used to organize the
papers into
streams. Stream topics include
Character and Virtue in the Professions, Empirical Research on Lawyering,
Ethical Decision-Making in Everyday Practice, and Gender and the Legal
Profession.
October 22, 2007 -
disgraced federal judge,
Eddie Nottingham, in the news again.
Nottingham illegally parked in handicap spot, then allegedly identified himself
as a federal judge and threatened to call the U.S. Marshals to remove a
paralyzed woman, who had positioned her wheelchair behind his SUV to confront
him about why it was necessary for her to park on the street because of his
occupancy of the parking space. How characteristic.
>> full article text >>
Honestly, it would never even occur to me to park
in a disabled spot, even for a minute. When one becomes a federal judge,
however, I guess one believes that he can pretty much do whatever he pleases.
Yet, according to her
complaint, attorney Elliot expressed disbelief that this, indeed, could have
been a federal judge parking in a van accessible spot, given that he presides
over Americans with Disabilities Act (ADA) cases. Frankly, it's no
surprise to us. We already know how he handles meritorious ADA cases
(click
here).
Incidentally, this report reminds me of former
Colorado district Judge Ed Simons' book, "The Luckiest Judge, where he
reports that one unnamed federal judge asked to have his traffic ticket
"fixed.". (click here).
Was that judge Nottingham?
October 18, 2007 -
background of Attorney General nominee, J. Michael Mukasey, cause for grave
concern?
Confirmation hearings for Former Circuit Judge Michael Mukasey began yesterday,
October 17, at 10:00 a.m. in the Senate, Hart Office Building, Room 216. The
principal reason why another Attorney General is needed is that Former AG
Alberto Gonzales conceived his main function as that of serving and protecting
his friend and mentor, President Bush, rather than acting as the top federal law
enforcement officer. An investigation is still under way to determine whether he
tolerated, or even participated in, the firing of U.S. Attorneys because they
were investigating friends or supporters of the President.
Hence, a key consideration in confirming Judge Mukasey should be whether he has
the required independence and strength of character to apply the law even to his
former friends and colleagues in the judiciary and not misuse his office to
obstruct any investigation of wrongdoing judges.
As chief judge of the U.S. District Court for the Southern District of New York,
Judge Mukasey was a member of the Judicial Council of the Second Circuit, the
body of judges that must “make all necessary and appropriate orders for the
effective and expeditious administration of justice within the circuit”. As
such, he decided on petitions for review of denials by his colleague, the chief
circuit judge, of judicial complaints against his peers in the circuit engaged
in conduct “prejudicial to the administration of justice”, including bribery,
corruption, prejudice, bias, and conflict of interests. Yet, he participated in
the systematic denial of such petitions without any investigation, thus leaving
complainants as well as the public at large at the mercy of his peers that were
actually, or gave the appearance of being, unfit for judicial office.
Mukasey also was, between 2004-06, a member of the Judicial Conference, the
highest policy-making body of the federal judiciary and presided over by the
Chief Justice of the Supreme Court. He had access to the reports on conduct and
disability orders from all the 13 judicial circuits. As member of both bodies,
he had actual or constructive knowledge of the official metrics, which now stand
to wit: Between 1997 and 2006, 7,462 complaints were filed against federal
judges, who only disciplined 9 of their peers. Judge Mukasey and his peers
granted themselves immunity from the judicial self-discipline law.
Judge Mukasey did not stand up to his peers even when he repeatedly received
documentary evidence of a pattern of acts pointing to the support by judges in
the U.S. Bankruptcy and District Courts in Rochester, NY, of a bankruptcy fraud
scheme. (Click
here and
here).
October 17, 2007 - HALT, an organization of Americans for Legal Reform, submits proposal for Proposed Rules Governing Judicial Misconduct and Disability Proceedings.
A link to the organization's proposed amendments is
here.
October 17, 2007 -
Impeachment: Nearly impossible, but it's the only prescribed remedy
The Galveston County Daily News featured
an article that begins, "Impeachment is an unwieldy club to use
against misbehaving federal judges. But some legal experts believe it might be
the only constitutional way to discipline them."
Oct. 17, 2007 - Update Concerning Former
Justice Rebecca Love Kourlis' Institute for the Advancement of the American Legal System
A critical piece by our fellow blogger at
The Colorado Index,
suggests that the IAALS is a scam. At least
that's our take on his prose, which you can find
here. In our view, just the title of IAALS' 2006 Report, Rebuilding
Trust in America's Courts, provides plenty of corroboration for judicial
reformers' arguments that we've got a problem on our hands, whether or not IAALS
has any sincere or effective proposal for addressing that problem. We also note
that then-Colorado-Bar-Association-President's July 2001 Message to Members,
entitled
Professional Reform (acknowledging the very low regard for the
legal profession held by the public) makes that case from the viewpoint of an
informed insider.
Oct. 16, 2007 -
Colorado Supreme Court Office of Attorney
Deregulation Counsel determines that attorney, who induces her daughter to
notarize her attorney fee affidavits and other legal documents, does not violate
the Rules of Professional Conduct, even `though it violates the Notarial Code of
Conduct and even `though it would result in revocation of daughter's notarial
commission by Secretary of State.
Original complaint is
here. OARC's invitation to attorney to respond is
here. Response of respondent attorney, Madeline
Wilson, is
here. Reply in support of complaint is
here. OARC decision is
here.
October 11th, 2007
Former Justice O’Connor's Propaganda Campaign Visits Colorado
With former U.S. Interior Secretary Gale Norton among attendees, retired U.S.
Supreme Court Justice Sandra Day O’Connor provided a noontime lecture Wednesday
to a packed house at the University of Denver’s law school.
>> full article text >>
Since stepping down from her Supreme Court post last January, O’Connor has
committed herself to spending as much time as possible refuting public concerns
about the judicial branch.
During the speech, as with countless other speeches and interview (several
previously mentioned on this site), O'Connor condemned the efforts of reformers
like former state Senate President John Andrews, R-Centennial, sponsor of the
failed Colorado 2006 ballot initiative
Amendment 40 that would have instituted state judicial term limits.
O'Conner pontificated, “perhaps many of our citizens have forgotten why we have
a courts and judges and why they matter.” Perhaps, O'Connor fails to realize that the many of our citizens, not
outraged by the judiciary's disregard for the Rule of Law, would be
outraged, but for their lack of exposure to the legal system. Those,
who
have been exposed and who are outraged, are the very citizens who have not
forgotten "why we have courts and judges and why they matter." For
that matter, I believed the courts and judges existed for
the redress of grievances and just resolution of justifiable controversies as
the only proper alternative to resort to self help (see, e.g.,
Harrington v. Wilson).
October 10, 2007 -
Brookings Institution to hold a discussion focusing on prosecutorial misconduct
and abuses
The discussion, which is sponsored by the Brookings Governance Studies Program’s
Judicial Issues Forum, will examine the frequency of prosecutorial misconduct at
the state and federal levels, circumstances that make it more likely to occur,
and strategies to minimize its impact. Panelists include Stuart Taylor, nonresident senior fellow and author of
Until Proven Innocent: Political Correctness and the Shameful Injustices of the
Duke Lacrosse Rape Case; James Comey, former U.S. deputy attorney general, and
Steven Benjamin, a criminal defense lawyer with Benjamin & DesPortes, P.C.
Benjamin Wittes, fellow and research director in public law at Brookings, will
moderate the discussion.
October 5, 2007 -
Colorado Supreme Court Office of Attorney of Deregulation Council dismisses
complaint accusing Arapahoe County District Attorney, Carol Chambers, of
misconduct over an alleged threatening e-mail
Gleason's indictment of Chambers, however, was unmistakable. "We don't clear
people of misconduct," Gleason said. "We decide whether we can prove or not
prove a case, and we have an extremely high burden of proof."
>> full article text >>
October 2, 2006 - Term
Limits for Colorado Judges Proposed Again
All Colorado judges would be limited to three
terms of four years each, beginning in 2010, under a constitutional
amendment proposed by a citizens group hoping to qualify it by petition for
the 2008 ballot. Limit the Judges, a campaign committee headed by former
Senate President John Andrews, took the first step on Tuesday toward getting
its proposal approved by the Secretary of State so signature-gathering can
begin. Andrews led last year's unsuccessful campaign for Amendment 40, which
would have placed a "ten years and out" limit on state Supreme Court
justices and Appeals Court judges, including incumbents. He said the
revised plan differs in applying uniformly to judges all levels, raising the
limit to 12 years, and excluding incumbents.
"This approach could have won in 2006," Andrews
said, "especially the provisions taking in district judges and avoiding
retroactivity. We expect it will be a winner in 2008, building on more than
half a million votes that we received from people who agree our courts lack
accountability." "Colorado still needs judicial reform, even though it was
blocked last year by a campaign of distortion from self-interested lawyers
and judges," he added. "Judges too often legislate from the bench, and we
keep seeing examples of individuals with virtual lifetime appointments whose
character is deficient."
Andrews noted that while judges in this state
face periodic retention elections and aren't appointed for life, they enjoy
a retention rate of over 99% under the current judicial performance review
system, which he called "toothless." He said his organization, Limit the
Judges, is recruiting local leaders and beginning to fundraise toward a
campaign goal of $2 million.
Sept. 26, 2007 -
Comment to the Committee on Judicial Conduct and Disability includes an acrid
indictment of the Tenth Circuit
Ken Smith, J.D. submitted his
memorandum to the Committee on Judicial Conduct and Disability during
the period of public comment regarding the Proposed Rules Governing Judicial
Conduct and Disability.
Sept. 25, 2007 -
Attorney Deregulation Council Now Claims Desire to Eliminate Agency's Secrecy
In this
Sept. 16th Denver Post feature, the OARC's John Gleason claims, "It's time
we eliminate the secrecy around our system." Perhaps, Gleason is preparing to
run for public office in the near future?
Sept. 24, 2007 -
The Committee on Judicial Conduct and Disability of the Judicial Conference of
the United States will hold a one half-day hearing at 10:00 a.m. on Thursday,
September 27, 2007, regarding its Draft Rules Governing Judicial Conduct and
Disability Proceedings under 28 U.S.C. §351-364.
The draft rules are intended to implement the recommendations contained in the
Breyer Report issued by the Judicial Conduct and Disability Act Study Committee,
chaired by Justice Stephen Breyer and appointed by the Late Chief Justice
William Rehnquist. The hearing will be held in the U.S. Courthouse at 225 Cadman
Plaza East, Brooklyn, New York. If you want to petition that the judges hold a
hearing on the Draft Rules where you live, send your request to Circuit Judge
Ralph Winters, Chair of the Committee on Judicial Conduct and Disability at
JudicialConductRules@ao.uscourts.gov. The Committee has required
from those that have requested to testify at the hearing that they give in
advance a written indication of their intended testimony.
Sept. 24, 2007 – Larimer
County magistrate's orders, requiring mothers claiming to be domestic violence
victims to participate in cooperative co-parenting training with fathers of
their children, has women's groups livid
Denver's
9NEWS and
Denver Post, respectively, have featured a story regarding Larimer County
Magistrate John Jostad, who handles domestic cases. In certain cases involving
custody, he has ruled that the parents should engage in 'Cooperative
Training,' which may means that the mothers can no longer withhold their
telephone number and e-mail address from the father of their children. Jostad's
ruling explains that such sessions are "in the best interest of the child."
Women's groups, who have long enjoyed a tactical advantage through false
allegations of abuse and restraining order abuse-of-process in Colorado are
seeing red, however. On the
9NEWS forum, alone, there are 410+ posts, as of Sunday evening.
See also
the
Denver Post forum.
Sept. 23,
2007 - Prof. Arthur
Hellman has posted a timely new article, The Regulation of Judicial Ethics in the Federal
System: A Peek Behind Closed Doors
Noting that ethical issues involving federal judges have been much in the news
recently (e.g., disgraced Edward Nottingham),
The Regulation of Judicial Ethics in the Federal System: A Peek Behind Closed
Doors, addresses two aspects of federal judicial ethics. The first
involves conflict of interest and disqualification; the second set of issues
involves the operation of the misconduct statutes.
Sept. 21, 2007 – Larry Manzanres’ brother speaks out; blames media for brother’s death
In a Denver Post
guest commentary, Stan Manzanares apparently absolves his brother of all
responsibility for the circumstances leading up to and including the unfortunate
suicide of his brother, former Denver city attorney and former judge, Lawrence
“Larry” Manzanares. Stan, apparently, credits Larry’s testimony that he bought
the stolen laptop from a street vendor in the parking lot outside the Justice
Center, noting that, “Larry’s claim of buying the computer were never followed,”
and that, “Surveillance tapes available from the Denver Art Museum were never
viewed.” Stan also placed blame on the Jefferson County D.A., Scott Storey, who
called the news conference regarding the charges and evidence. The complaint
against Storey filed with the Office of Attorney Regulation Counsel was
dismissed. (click
here).
Sept. 20, 2007 - Colorado
Appeals Court holds that filing of lawsuit[s] may constitute a direct or
Indirect "form of communication" as defined Section 18-9-111(4)(b)(III)
Could not that also mean that the First Amendment exercise of filing a lawsuit
may be a violation of a no-contact (retraining or "protective") order by
communicating with the protected party?
Among other things, the court ruled that the defendant's conviction and enhanced
sentence for stalking were not unconstitutional (finding that C.R.S. §§
18-9-111(4)(b)(III) and (5)(b) are neither vague nor overbroad). The evidence
supported the conclusion that the defendant engaged in a pattern of vexatious
litigation by intentionally filing numerous lawsuits to the victim without
notice to put her at a significant legal disadvantage, deprive her of her
property without due process of law, and cause her serious emotional distress
once she learned of the filings.
While the opinion seems to justify this holding on the basis of the "sham
exception" (as set forth in Protect Our Mountain Env't. Inc, y. Dist, Court,677 P.2d 1361
(Colo. 1984)), the language of neither Colo.C.C.R.C.P. 365 nor
13-14-102 (C.R.S.) recognizes any exception for non-frivolous and
non-vexatious filings. The case is People v. Richardson, No. 04CA2121 (Sept. 20, 2007)
Sept. 19, 2007 – Office of
Attorney Regulation Counsel investigating Denver attorney
Madeline Wilson for using her daughter to
notarize attorney fee affidavits and other court documents
The Office of Attorney Regulation Counsel is investigating Denver attorney
Madeline Wilson (reg. No. 24060) for using the notarial services of her
daughter, Jessica Frazier, for her attorney fee affidavits and numerous other
court filings. (Click
here).
Sept. 6, 2007 -
Former prosecutor involved in alleged affair admits misconduct
State Supreme Court documents reveal a former deputy prosecutor involved
in an alleged affair with an ex-Douglas County judge has admitted to misconduct.
As part of the conditional admission of misconduct,
Laurie Hurst[n.1] (f/k/a Laurie Steinman), has
agreed to be suspended for six months and be on probation for two-and-a-half
years.
Hurst was hired as a Deputy District Attorney for the 18th Judicial District
around February 2006. Grafton Biddle was a Magistrate with the 18th Judicial
District at the time. He was appointed to the Douglas County Court bench later
that year. According to the documents, Biddle and Hurst began having an affair
in the spring of 2006: "As their relationship progressed, some time in
approximately March or April 2006, Magistrate Biddle was naked when they met in
the bathroom in his chambers and, later during the summer of 2006, they
eventually engaged in intimate relations in his chambers and showered together
in the women's locker room."
In July 2006, Judge Biddle tried a DUI case,
People v. Jeffrey Lee
Cowley, in which Hurst appeared as the Deputy District Attorney. Despite
their relationship, which they kept secret, Hurst did not ask for a substitute
district attorney to try the case and Biddle did not recuse himself from the
case. The defendant was convicted.
In an attempt to conceal their affair, Biddle and Hurst "took steps to
permanently delete numerous e-mails they exchanged using their government e-mail
addresses and computer systems." The documents show the affair had mostly ended
by September 2006. Hurst's husband learned of the affair around October 2006.
She told him if he reported her, she would be disbarred. The affair resumed
between October and December 2006.
Biddle's wife, Gail Liles, discovered the affair on November 12, 2006
(although the documents show the affair continued) and Biddle served as a
substitute judge for a criminal trial Hurst was prosecuting. Liles reported the
affair in December 2006. Liles told Biddle she had reported him, and according
to the documents, he in turn told Hurst.
Biddle submitted a brief resignation letter on December 18, 2006. He did
not give a reason for his decision to leave six months into his two-year term.
18th Judicial District Attorney Carol Chambers met with Hurst on December 22,
2006. Hurst admitted the affair and Chambers terminated her employment. >>
full article text >>
[n.1] Note that, until recently, Ms. Hurst's profile at the
Wareham Group , LLP could be found at:
http://www.thewarehamgroup.com/lhurst.htm. However, as of
today, that page is no longer available. We have archived an older copy of the
page (sans her photograph) here.
Sept. 5, 2007 -
federal judge strikes down state court rules used to discipline lawyer's
criticism of the judiciary
Embattled Southfield attorney Geoffrey Fieger scored a victory Tuesday when a
federal judge in Detroit declared unconstitutional Michigan court rules that
were used to discipline Fieger after he gave a radio interview in 1999 in which
he referred to specific state appeals court judges as jackasses and compared
them to Adolph Hitler and his associates. The rules say lawyers must treat
everyone involved in the legal process with "courtesy and respect" and should
"not engage in undignified or discourteous conduct" toward the bench.
In
the decision, released late Tuesday, U.S. District Judge Arthur J. Tarnow
said "the rules are unconstitutional on their face because they are both overly
broad and vague." "As effective advocates, attorneys should be able to engage in
robust discourse," said attorney Mike Dezsi, who argued the case for Fieger.
"All lawyers should rest easier, knowing they are not going to be disciplined
for criticizing or speaking out against judges." Contempt rules still apply,
meaning lawyers can't say something outside court that could affect a case. >>
full
article text >>
September 4, 2007 -
three Denver lawyers on discussion board elect to sign off in the face of
reasoned argument regarding legal profession woes
On a
Denver Post discussion forum
concerning federal judge,
Edward Nottingham, three
self-professed lawyers (using screen names of HuffMaCo, kMad766 and Telmo) seemed unable to refute the arguments of two non-lawyers (using
screen names of Robin Hood and esoxlucios) concerning the
state of the judiciary.
August 30, 2007 -
Office of Attorney Regulation Counsel
won't discipline for attorney fraud, dishonesty, perjury, harassment,
mispreprenstation of law, violating a court order, violating Colorado law,
neglecting duties under the discovery rules, having an intimate relationship
with a married client or concealing the whereabouts of a minor child, but will
discipline for a attorney's failure to pay a court reporter for a deposition
transcript.
Yes, we're not making this up. Following a hearing, the Hearing Board publicly
censured Respondent Dennis L. Eamick (Atty. Reg. No. 34259) and ordered him to
pay restitution, effective July 22, 2007. (Click here). The respondent attorney ordered a deposition transcript on behalf
of his client and later refused to pay the court reporter for it, citing Colo.
RPC 1.8(e). His "misconduct" constituted grounds for the imposition of
discipline pursuant to C.R.C.P. 251.5 and purportedly violated Colo. RPC 8.4(d)
and (h).The testimony established that it is custom and practice in Colorado for
the attorney to assume responsibility for payment. Mr. Eamick had a yearly
income from his law practice of $7,000.
August 27, 2007 - With
the Bench Cozied Up to the Bar, the Lawyers Can’t Lose
By Adam Liptak (sidebar / The New York Times)
Dennis G. Jacobs, the chief judge of the federal appeals court in New York, is a
candid man, and in a speech last year he admitted that he and his colleagues had
“a serious and secret bias.” Perhaps unthinkingly but quite consistently, he
said, judges can be counted on to rule in favor of anything that protects and
empowers lawyers.
Once you start thinking about it, the examples are everywhere. The lawyer-client
privilege is more closely guarded than any other. It is easier to sue for
medical malpractice than for legal malpractice. People who try to make a living
helping people fill out straightforward forms are punished for the unauthorized
practice of law.
But Judge Jacobs’s main point is a deeper one. Judges favor complexity and
legalism over efficient solutions, and they have no appreciation for what
economists call transaction costs. They are aided in this by lawyers who bill by
the hour and like nothing more than tasks that take a lot of time and cost their
clients a lot of money.
And there is, of course, the pleasure of power, particularly in cases involving
the great issues of the day.
“Judges love these kinds of cases,” said Judge Jacobs, whose speech was
published in The Fordham Law Review in May. “Public interest cases afford a
judge more sway over public policy, enhance the judicial role, make judges more
conspicuous and keep the law clerks happy.”
There are costs here, too, he said, including “the displacement of legislative
and executive power” and “the subordination of other disciplines and
professions.”
Yet, at the conclusion of a big public-policy case, the bar and bench rejoice.
“We smugly congratulate ourselves,” Judge Jacobs said, “on expanding what we are
pleased to call the rule of law.”
Benjamin H. Barton, a law professor at the University of Tennessee, examined
some of the same issues in an article to be published next year in The Alabama
Law Review titled “Do Judges Systematically Favor the Interests of the Legal
Profession?”
That question mark notwithstanding, there is little doubt about where Professor
Barton comes out.
He noted, for instance, that the legal profession is the only one that is
completely self-regulated. “As a general rule,” Professor Barton wrote, “foxes
make poor custodians of henhouses.”
Professor Barton explored a long list of examples, including the aftermath of
the Supreme Court’s 1966 decision in Miranda v. Arizona. Miranda, as everyone
with a television set knows, protected the right to remain silent and the right
to a lawyer.
Over the years, though, courts have approved all sorts of police strategies that
have eroded the right to remain silent. At the same time, Professor Barton
wrote, the courts “chose to retain quite robust protections for accused who
clearly expressed a desire for a lawyer.”
“The advantages to the legal profession are clear,” he added. “Whatever else an
accused should know, she should know to request a lawyer first and foremost.” And the cases keep coming.
This month, a New Jersey appeals court basically immunized lawyers from
malicious prosecution suits in civil cases. Even lawyers who know their clients
are pushing baseless claims solely to harass the other side are in the clear,
the court said, unless the lawyers themselves have an improper motive.
Lester Brickman, who teaches legal ethics at Cardozo Law School, said the
decision was just one instance of a broad phenomenon.
“The New Jersey courts have determined to protect the legal profession in a way
that no other professions enjoy,” Professor Brickman said. “It’s regulation by
lawyers for lawyers.”
Other professions look for elegant solutions. It is the rare engineer, software
designer or plumber who chooses an elaborate fix when a simple one will do. The
legal system, by contrast, insists on years of discovery, motion practice,
hearings, trials and appeals that culminate in obscure rulings providing no
guidance to the next litigant.
Last month, Judge Jacobs put his views into practice, dissenting from a decision
in a tangled lawsuit about something a college newspaper published in 1997. The
judges in the majority said important First Amendment principles were at stake,
though they acknowledged that the case involved, at most, trivial sums of money.
Judge Jacobs’s dissent started with an unusual and not especially collegial
disclaimer. He said he would not engage the arguments in the majority decision
because “I have not read it.”
He was, he said, incredulous that “after years of litigation over $2, the
majority will impose on a busy judge to conduct a trial on this silly thing, and
require a panel of jurors to set aside their more important duties of family and
business in order to decide it.”
Writing with the kind of verve and sense of proportion entirely absent in most
legal work, Judge Jacobs concluded that “this is not a case that should occupy
the mind of a person who has anything consequential to do.”
August 24, 2007 -
Proposed Rules for Federal Judges
The Committee on Judicial Conduct and Disabilities of the Judicial Conference of
the United States has promulgated proposed amended rules for misconduct and
disability proceedings against federal judges. The comment review period ends on
October 15. Comments may be submitted by e-mail to
judicialconductrules@ao.uscourts.gov. If the Judicial Conference adopts
these draft rules, they will be binding upon chief judges, circuit judicial
councils, and circuit staff. Comments should include the sender's name, mailing
address, organization (if applicable), and occupation. For more information,
visit
www.uscourts.gov/library/judicialmisconduct/commentonrules.html. The Draft
for Public Comment regarding the Rules Governing Judicial Conduct is
here.
August 23, 2007 - The
$2.5 Million Dollar Solution!
August 19, 2007 - Some
Commentary Regarding the New Rules of Professional Conduct
The Colorado Supreme Court has approved
substantial amendments to the Colorado Rules of Professional Conduct,
which will result in the repeal of the current rules and reenactment of
the newly-approved rules. The Rules have been posted to the
OARC
page
of this Web site for a few weeks, already. These new rules will
take effect on January 1, 2008.We provided the commentary regarding the new Rules from
The Colorado
Lawyer to our fellow blogger over at The
Colorado Index,
who reviewed the article and had this to say:
[The new Rules] appear[] to weaken protections that the public
supposedly has now. It does allow judges at their discretion
to allow lawsuits against attorneys for breaking the rules,
something the current rules prohibit. When one considers the
effort we went through to get an attorney disciplined, and the level
of resistance we met, this provision is simply unethical slight of
hand. No judge will ever allow such a lawsuit and the folks
writing that section know that. Judges protect lawyers,
lawyers protect judges, and no one protects the public.
Cut-and-pasted, hereinbelow, is the analysis (or propaganda, depending
on your viewpoint) of
Marcy Glenn, which analysis was published in
The Colorado Lawyer. Note that, in addition to the
accreditations given to the author, she is also the chairwoman of the
federal court's little known Committee on Conduct, the body responsible for
processing ethical complaints against attorneys admitted to the federal bar.
Here is an example of a complaint and the
Committee's
response --pop quiz: Find how many issues are raised in the complaint,
including those cited by case law. Then find how many issue[s] are
addressed and disposed of with the Committee's decision. Note also the
length of time between the complaint filing date and the date of a decision.
The New Colorado Rules of Professional Conduct: A Survey of the Most Important Changes
August 10, 2007 - Chief Federal
Judge Edward Nottingham claims he was too
inebriated to remember
night at strip club
According to a
Channel 9
News report, court documents show Colorado's top federal judge was too drunk
to remember how he spent more than $3,000 at a strip club in two consecutive
days. He also used an Internet dating service while he was married.
Judge Edward Nottingham is the chief federal judge in Colorado and he is held to
the highest standards of personal and professional conduct. Nottingham recently
presided over the insider trading trial of ex-Qwest Communications CEO Joseph Nacchio. Judge Nottingham married his wife, Marcie Jaeger, on one of the most romantic
days of the year – Valentine's Day 2004. The marriage ended after Jaeger found
credit card charges from a strip club in downtown Denver totaling more than
$3,000 in two consecutive days.
In the couple's divorce case in Eagle County district court last month, Judge
Nottingham was questioned about the credit card charges. Nottingham testified,
"I'm ashamed and mortified just telling you that is the Diamond Cabaret ... a
topless establishment." Asked how he could have spent so much money, Judge
Nottingham testified he could not recall, explaining, "I had had a lot to drink
… and I don't remember."
9Wants to Know showed the transcripts to 9NEWS Legal Analyst Scott Robinson.
"Judge Nottingham had at least one lost night at the Diamond Cabaret and of
course that goes to the question of whether that is acting with at least the
appearance of impropriety," Robinson said, "contrary to the code of conduct for
federal judges."
Judge Nottingham also testified about credit card charges for a Web site called
IPayFriendFinder.com. Jaeger testified that she originally thought it was a
dating service.
"When I asked about the dating service he turned around in his chambers and he
hit his computer and he told me all about the dating service," Jaeger said in
court. "It was a porn site."
During his testimony, Judge Nottingham called Friend Finder, "A dating site – an
Internet dating site."
When asked in court about a $150 charge to IPayFriendFinder.com, Judge
Nottingham said, "I'm embarrassed to be even talking about this. I think you pay
extra to get certain features, such as if you upload a picture or – I don't even
recall."
Under the U.S. Constitution, federal judges are appointed for life by the
president of the United States. They are supposed to follow an official code of
conduct, which contains this explanation:
"Public confidence in the judiciary is eroded by irresponsible or improper
conduct by judges. A judge must avoid all impropriety and appearance of
impropriety. A judge must expect to be the subject of constant public scrutiny.
A judge must therefore accept restrictions that might be viewed as burdensome by
the ordinary citizen and should do so freely and willingly. The prohibition
against behaving with impropriety or the appearance of impropriety applies to
both the professional and personal conduct of a judge."
According to Robinson, as a federal judge Nottingham can be removed from the
bench only for high crimes, misdemeanors, treason or bribery.
August 03, 2007 -
Deadline for public comment re: standards for Colorado CFIs, PCs and DMs is
today.
The following were submitted on behalf of
KnowYourCOURTS.com as proposed comments/suggestions to the Committee's Revised Child and
Family Investigator (CFI) Standards (codified as Chief Justice Directive
04-08) as amended, and for the Proposed Guidelines/Standards for
Parenting Coordinators (PCs) and Decision Makers (DMs):
(1) In clarification of Section IV (A):
Upon Motion of either party or on the court's own motion, a party
may move for disqualification or substitution of a child and family
investigator, parenting coordinator or decision maker on the basis
of unethical conduct:
(a) A motion filed under this provision shall
be styled, in part, "Motion for Disqualification" or "Motion for
Substitution" to draw attention to the nature of the pleading
for the convenience of the Court;
(b) The motion shall provide a concise factual
basis regarding the alleged conduct therefor;
(c) The court shall hold a hearing upon receipt
of a Motion substantially in compliance with this section, and
shall set the matter on the court's docket with priority.
(i) The CFI, PC or DM's work on the case
shall cease until a hearing on the matter has been held;
(ii) The CFI, PC or DM shall have an
opportunity to appear in person to defend against the
charge[s]. Appearances by telephone will be granted only for
good cause shown.
(iii) a failure of any CFI, PC or DM to
appear and answer the allegations shall be considered a
confession by failure to deny and result in a forthwith
disqualification or substitution. The court may consider
such disqualification or substitution under this subsection
in determining a subsequent Motion by either party to strike
the findings or recommendations of the CFI, PC or DM or
order a reimbursement of fees or both
(iv) the trial court shall evaluate the
allegations under the applicable law, at equity and under
any applicable professional standards, such as the American
Psychological Association Code of Conduct.
(v) The trial court shall enter finding of
fact and conclusions of law to provide a reviewing court
with the basis for the trial court's determinations.
(d) The Court shall make an entry of any Motion
filed under this section in a registry maintained by the
Standing Committee on Family Court issues.
(i)The entry shall include the date of the
Motion; name of the movant; the name of the CFI, PC or DM;
and the disposition of the Motion.
(ii) The Standing Committee on Family Court
Issues shall make the register available for public
inspection. The Court shall make the Motion available for
public inspection unless the Motion is sealed for good cause
shown. However, in no event shall an entry in the register
be withheld from entry or be stricken, even if the Motion
has been sealed for good cause shown.
Comment:
The purpose of this provision is to
address the significant and redundant concerns regarding a lack of
oversight and plenary review of CFIs, which has been acknowledged in
the
Commission on Families in the Colorado Courts Final Report, August 2002; the D.o.R.A.
Mental Health Section 2003 "Sunset
Review" (see numbered pages 40 - 42 (appearing as 46-48
of 97)); Dana Cogan, M.D. and Albert M. Bonin, Esq.,
Re-Assessing the Use of Special
Advocates: A Legal and Mental Health Perspective; and The Role of the CFI and CLR in Colorado, First Ed.
(Robert M. Smith ed., CLE in Colo., Inc., Supp. 2005). This
provision provides a formal process for hearing and evaluating
complaints and requires a record of the same to be made. Although
many CFIs may be concerned that frivolous allegations will be made,
the need to protect children and the public outweighs this concern,
especially whereas the trial court should be in the best position to
evaluate the allegations.
(2) supplement to Standard 12 (A CFI shall provide copies of
his or her file)
A CFI shall not charge any fee above and beyond a reasonable
per-page copying of not more than x cents
per page.
Comment: The purpose of this provision is to
eliminate situations where a CFI has charged exhorbitant rates (as
Bill J. Fyfe has done in the Marriage of Harrington case of
$300, in violation of the contractual and published $50 set fee) as
a way to get circumvent the requirement of Standard 12. The Tenth
Circuit allows a maximum of fifty cents per page in recovering costs
for a successful appellant. The Colorado state courts are mandated
by Chief Justice Directive to charge not more than twenty-five cents
per page.
(3)
A CFI, PC or DM shall maintain an accurate
registry of all domestic relations and criminal cases that he or she
has been involved with. A CFI, PC or DM shall make this list
available to any inquiring member of the public, including
journalist, prospective client or party to an ongoing case.
Exemptions to this requirement include those same exemptions to
public access now in effect, including, for example, juvenile cases
and mental health cases, which are confidential. A CFI, PC or DM
shall provide and updated, current and accurate list to the Standing
Committee on Family Issues, which committee shall maintain a copy in
its files and make available for public inspection upon written
request.
Comment:
The purpose of this provision is to allow
parties to research the background and previous experiences and
performance of a CFI, PC or DM, because no other records have been
previously available.
