I received an email last night from a reader of this blog. She articulated some frustrations with trying to make change in Minnesota regarding judicial misconduct she had experienced as a litigant. My response back to her was that this is a multi-pronged problem. The solution therefore, needs to be multi-facited as well.
As with all forms of misconduct, judges cannot do it alone. And they cannot get away with it – alone. It is not uncommon for judges participating in judicial misconduct to be facilitated by other judges. And certain types of judicial misconduct (like ex parte communications with lawyers) could not occur without the knowing assistance of lawyers.
The Minnesota Lawyers Board plays a role in protecting judicial misconduct.
For a number of years now, I have been asking the Minnesota Lawyers Board, through its Prosecutorial arm, the Office of Lawyers Professional Responsibility (OLPR, run currently by Director Marty Cole) to prosecute attorneys who facilitate judicial misconduct. One of our lawyer ethics canons specifically prohibits lawyers from “knowingly assist[ing] a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law” (Minnesota Rule of Professional Conduct 8.4(f)).
I filed a complaint against a lawyer implicating this Rule in 2006. The OLPR wouldn’t even investigate it.
I also appealed the refusal to investiate to the Lawyers Board itself: same result.
In 2011, a client of mine made a complaint to the OLPR about a lawyer who is a judge’s clerk, for violating 8.4(f). Judges could not commit much of the misconduct they commit, without the assistance of court clerks, some of whom are lawyers. That complaint was, also, rejected without any investigation by the OLPR.
Now, why do you think that is?
I cannot locate any indication that the OLPR has ever investigated a lawyer for knowingly assisting judicial misconduct. And I have queried the Director’s Office about this. And the response (you’re going to love this one)? That the OLPR will not even consider investigating a lawyer for misconduct under 8.4(f) until it has been proven that the judge engaged in misconduct.
Now, this is a problem for a couple of reasons. This means that to solve the problem of lawyer misconduct contributing to judicial misconduct, we have to solve the problem of judicial misconduct. Minnesotans cannot get the Judicial Standards Board to be responsive, to investigate wayward judges or to charge them. That’s the problem. Both of these agencies claim that they exist to protect the public. This Catch 22 created by the Lawyers Board will continue the cycle of Minnesota litigants being harmed, and no one doing anything about it. It’s sad, and it’s not acceptable.
But this analysis by the OLPR Director is also a problem because most of what occurs at the Judicial Standards Board is confidential. What if a lawyer sends ex parte text messages to the judge trying his case? And what if the judge is investigated, and cuts a private deal with the JSB? We, the public, will never know about it, and someone complaining about the lawyer will never be able to prove it. That would stop the lawyer investigation in its tracks (according to what I’m being told by the Director) and for a completely silly reason: because the complainant could not prove that the judge had been disciplined.
And, it’s clear the OLPR isn’t about to try to obtain confidential information from the JSB, even though both agencies are arms of the Supreme Court.
But further, the Director has already admitted to me that there is no legal reason why a lawyer cannot be investigated and prosecuted for an 8.4(f) violation, unless and until the judge has already been charged and found to have engaged in misconduct.
So I asked the Director again, why won’t you do it? The response? “Discretion” of the Director. This shows this is a cultural problem. And that’s something the public has a right to try to change.
The reason, in my opinion, that the Director won’t investigate these lawyers who assist judicial misconduct (and why the Lawyers Board won’t make him) is that the Lawyers Board is in the business of excusing judicial misconduct, and they have been for years. So, they reward lawyers who help them go after the source of the problem in their eyes: lawyers who complain about judicial misconduct. (I’ll say more about that in upcoming posts.) And the OLPR never goes after the lawyers who help judges commit judicial misconduct, and help them get away with it.
So frustrated Minnesotan, this is part of your answer. This is why I say it is a multi-pronged problem.
I’m here to say, Minnesota, we are behind the curve. Note how the Florida Bar has found a criminal prosecutor guilty of misconduct for communicating ex parte with a judge during a trial.
While trying a death-penalty case before Judge Ana Gardiner in 2007, Scheinberg exchanged 949 phone calls and 471 text messages with the judge. For failing to disclose the communications, a referee for the Florida Bar has found Scheinberg guilty of professional misconduct and recommended the suspension.
“The communication should have been revealed to opposing counsel and failing to make such a disclosure was also prejudicial to the administration of justice,” Florida Bar Referee Sheree Davis Cunningham wrote in her 10-page report. “His disregard, inadvertent or otherwise, for the sanctity of the legal process must be addressed.”
Obviously, the judge accepting ex parte communications and not disclosing them is judical misconduct. We can’t tell from the story whether someone went after the judge. But the Florida Bar has it right. Regardless of whether the judge is found guilty (or even investigated), the prosecutor should have disclosed the communications to opposing counsel. And failure to do so is misconduct (and, under 8.4(f), knowingly assisting judicial misconduct).
I’m asking the Minnesota OLPR Director Marty Cole to explain to Minnesotans whether he is still refusing to investigate lawyers for this type of conduct.