Category Archives: Judicial Misconduct Dictionary

What is Fraud: Part 3

This continues the important series:  what is fraud?   The following sentences continue the Black’s Law Dictionary (Sixth Ed., West Publishing Company 1990) definition from the previous 2 posts in the series:

Anything calculated to deceive, whether by a single act or combination or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or innuendo, by speech or silence, word of mouth or look or gesture. A generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestion, trick, cunning, dissembling, and any unfair way by which another is cheated.

To my studied understanding, the term “silence” in the above defintion is sometimes referred to as fraud by omission.

Of course, all lawyers and judges know the above due to their training  (see my other series, What is an Attorney?).  Non-lawyers may also be interested in the above.  Some people might want to consult their attorney for more information.

Speaking of looks and gestures – why does the ‘video’ of MN Supreme Court sessions not show the faces of the judges?  Doesn’t the public have a right to see their looks and gestures?

I see no rule requiring lawyers and parties who appear in the Supreme Court to fill out a form.  If someone can point me to the rule, I will be happy to review it.

white person with glasses on stack of books

What is an Attorney: Part 2

This is the second in a series of posts about the definition of “attorney.”  See Part 1 in the series on this blog.

Power of attorney.  The instrument by which authority of one person to act in place and stead of another as attorney in fact is set forth.

Many people use the term ‘power of attorney’ to describe the document that transfers power.  Some use the term ‘power of attorney’ to describe the person (and that is not wrong as long as the meaning is clear), but the term is ‘attorney in fact.’  That term describes the person who accepts the grant of power.

The term ‘attorney in fact’ is often used to differentiate from the term ‘attorney at law.’

The above defintion is from Black’s Law Dictionary (Sixth Ed. West Publishing Co. 1990).  I like to use that reference, because it is a hard-bound book. Sometimes I glimpse a related definition on the same page, and realize its relevance to my search.  That is something we have lost in the digital environment.

You are not required to go to law school to act as an attorney in fact (that is, to exercise the power of attorney).  You are not required to have a state law license or be admitted to any court.

Common uses are a son accepts power of attorney over his aging mother’s finances.  Or perhaps someone has to leave the state for work and does not expect to return for years, and they grant power of attorney to a friend to sell their house.  Each aspect of the control by the one who accepts the power (the attorney in fact), must be described in the power of attorney document.  Those who accept the grant, are required to stay within the boundaries of the grant.

For example, if a mother gave her son authority to sell her house, but not to shut down her businesses, the son must be careful not to affect the businesses in the way he exercises the power.

The leaving friend would not want to learn, for example, that in addition to selling the house, the attorney in fact terminated the lease at the retirement center, a place where the leaving friend felt her father would be safe.

This is an important aspect of the law, one that affects many lives.  Stay tuned for Part 3 of this series.

May 9, 2013.  No derivative works are authorized by copyright holder(s).

 

Enough of the “old ways” – Part 1 – Not Slinking Away

The “old way” was for lawyers to suffer in silence and slink away.

I’ve used the phrase in prior posts, the “old ways” or the “way thing used to be.”   (Example Link).

This series defines that phrase.

I am certainly not the first lawyer to be mistreated by judges.

I am not claiming I am the first lawyer put out of business by judges, I am not claiming to be the first lawyer who had the Lawyers Board used against her to stop her from speaking the truth about the justice system.  I believe I follow in a long line of lawyers, who, before me, lived by their convictions, had the courage to speak out, experienced being shut down by those in power.

But in the past when a lawyer was targeted for destruction by judges, they mostly slunk away in shame.

I am trying to stay in the ring as the punches come.

If I go down on the mat, I am trying to get up before the count of 10.

Lawyers have been the serfs of the system for far too long.  We have been expected to take all kinds of mistreatment by judges.  And, we have not been able to complain about it (that is, unless you wanted bad things to befall you).  Traditionally, we haven’t even been able to say anything about it in public.  Not in the coutroom in the moment, not later.

Be quiet, keep it to yourself.  Walk away.

That was the “old way.”

But the old way has been questioned.

Back when I was active with the Minnesota State Bar Association, I remember being shocked to learn that lawyers had the highest rate of depression of any field of work.  I believed then, and I’ll say now, this comes from the requirement that we repress our feelings.

The requirement that we put our clients before ourselves, in the context of inhibiting lawyers from speaking out to protect themselves, has a significant downside – for us.  It’s time we gave that due consideration.

If a private person abuses you, professionals will tell you it’s important to assert yourself, draw a boundary – tell them to stop.  But as lawyers, we have not been permitted to do that – when it comes to mistreatment by judges.

Because we fear that the client might be harmed if we speak our own personal truth (such as, “stop abusing me!”), or because we fear retaliation by the judges, we have stuffed the feelings deep inside.

And we’ve done it year after year.

Now, of course, there are plenty of mature judges who don’t harass and abuse lawyers.  I am not sweeping all judges into one lump here.  But there are still enough judges who do it, that it is still a significant issue in the life of a litigator.

The more so because we have not been permitted to assert ourselves and becuase as a community, we have not talked much on this issue.

I remember hearing the story several years ago about a lawyer who appeared before a judge who verbally abused him, railed on him.  As the story goes, a short time later (like about an hour – not even a day) the attorney had a massive heart attack and died.  When I heard the story it was complete with the name of the lawyer, the name of the judge, the jurisdiction.  It was credible to me.  Some of those in the Twin Cities area might recall it.  But the names are not important for my point, so they are not included here.

My point is that I heard that story in a hushed whisper.  Surely a verbal lashing that results in such extreme harm should have been scrutinized.  I am not saying it caused the harm – I don’t know.  I’m saying we should have been able to talk openly about it, and investigated whether the judge’s conduct had an impact on the lawyer’s health.

From what I heard, there was no investigation.

That was the “old way.”

The “old way” was for lawyers to go away, ‘not with a bang but a whimper.’

In the “old way,” if judges put a lawyer out of business because of his politics, he was to slink away in shame.  If the abuse got bad, if the judges intentionally prevented the lawyer from winning cases, if the lawyer’s health started to fail and it all slid downhill, then the lawyer was the problem – right?

Aha, strike now – take the license.

Out of sight out of mind.

Right?

Never look at why.  Just blame the lawyer.

That was the old way.

The “old way” is changing.

I certainly am not going down in a hushed whisper.

That’s one of the reasons I started this blog.  I wanted people to be able to watch what happened to me.

And they are watching; I get hits from around the globe.  I know judicial reformists are watching.  I know others are as well.

I had no idea things would get so vicious.

I’ll be posting documents soon that will tell you ust how vicious it has gotten.

I always knew I could not control what happened.  that’s why the lawyer discipinary process is a closed system (no jury) – so judges can control the outcome (often dispensing with that pesky need to consider the law or the facts.)

But I also knew that no matter what happened, I was going to point out the problems with the system as I saw them.

I was silenced at first, then deluged, then traumatized (down on the mat for a while…count getting close to 10!), and now coming back – gaining strength.

I have no interest in slinking away.

I do have an interest in focusing on what is wrong, but also what is changing, how we can do better.  I do so hope another lawyer doesn’t have to go through what I have gone through.

Lawyers are tired of being second class citizens.  We are tired of judges who think they are the “kings” of their coutroom, treat lawyers as slaves.

We are tired of having fewer rights than the rest of America.

We are tired of living in fear.

No matter what happens, me talking about it, blogging about it, is a sign of change.

***

I’ll continue to discuss apsects of the “old ways,” which I hope are giving way.

Judicial Misconduct Dictionary: the Iron Curtain

Iron curtain.  This is my term for the curtain between the public and the inner workings of the justice system. I have also called this the “wall.”

I am not talking about the sanctioned part of the appellate process for discussion of the case by the appellate panel or supreme court.  I am not saying we need to get inside those rooms.

In describing the iron curtain or the wall, I am describing the inability or extreme difficulty of the public to obtain information about the courts, to obtain information about their own case that is occurring behind the scenes, and to obtain information about administrative processes and decisions made in the courts.

I have been known to say that it is difficult within a case to prove judicial misconduct or ‘irregularity in the proceedings’ when the issue is a judge’s conduct, because traditionally the judge controls the information.  (Or some other judge who identifies with judges controls the information.)

What other place in the system do we allow the people under scrutiny to control access to evidence of guilt?  Isn’t it human nature for judges to block access to the very evidence a party needs to show they  have committed misconduct?  (Such as evidence that a judge should have recused because he owns stock in the defendant corporation, or that a judge had an ex parte communication in her chambers with one of the lawyers.)  To get at this issue, we need to openly discuss the need for evidence and information, and the access that the parties and the public have to it.

The public is also entitled to access information about administrative decisions made by the courts.

It’s good for all of us to examine the role of judges as administrators (something the public never voted them to do, and something the Governor likely did not consider upon appointing them).  It’s good for judges to hear input from others.  Surely they don’t claim to have a stranglehold on all good ideas about how to dispense justice.

Why would we as a society insist that all legislative meetings (whever 3 or more are gathered) be public.  But 20-50 judges can meet and decide how justice will be administered, and we can’t even know if it happening?

The Berlin wall was long ago dismantled.

In this democracy, it is time to start prying away those bricks that have become cemented into our justice system.  Time to tear down the wall.

Sua sponte

Sua sponte is latin for “of one’s own will.”  When referring to judging, it means of the judge’s own volition.  In other words, neither of the parties have asked the judge to do something.  The judge just decides that s/he is going to do it.  Although there are rare circumstances where the law permits a sua sponte ruling (such as when a judge is to decide whether to self-recuse), for the most part, the law disfavors such rulings.

Why?  In my mind, it’s because a sua sponte ruling is often a red flag that the judge is:  1) becoming embroiled in the litigation (overly emotional and having feelings that drive outcomes, rather than intellectual discourse); 2) favoring one side over the other; or 3) acting to protect him or herself rather than being driven by the parties’ motions, law and the facts.

Judicial Misconduct Dictionary: Recusal or Disqualification

The word recuse or recusal, disqualify or disqualification relates to a judge being removed from presiding over a case.

The judge can self-recuse or self-disqualify, or a party to the case can request that the judge be removed.

If the party makes a motion, it’s ruled upon like any motion in the case, and under certain procedural rules, appellate review of the judge’s decision can be sought.  In Minnesota, the party whose motion to disqualify is denied by the sitting judge, must be quickly brought to the attention of the Court of Appeals (instead of waiting to appeal the issues at the end of the case).

The rules of judicial conduct require recusal/disqualification in certain situations.  The federal rules and statutes govern recusals of federal judges.  See Code of Conduct for United States Judges.

For state judges in Minnesota see Canon 2, and Rule 2.11,

(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.

(2) The judge knows that the judge, the judge’s spouse, a person with whom the judge has an intimate relationship, a member of the judge’s household, or a person within the third degree of relationship to any of them, or the spouse or person in an intimate relationship with such a person is:

(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee or a party;

(b) acting as a lawyer in the proceeding;

(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or

(d) likely to be a material witness in the proceeding.

(3) The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent, child, or any other member of the judge’s family residing in the judge’s household, a person with whom the judge has an intimate relationship, or any other member of the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding.

(4) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.

(5) The judge:

(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association;

(b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy;

(c) was a material witness concerning the matter; or

(d) previously presided as a judge over the matter in another court.

(B) A judge shall keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse, a person with whom the judge has an intimate relationship, and any member of the judge’s household.

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding.

Judicial Misconduct Dictionary: Impartial

Impartial.

The Minnesota Code of Judicial Conduct defines “impartial” as,

“Impartial,” “impartiality,” and “impartially” mean absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.  See Canons 1, 2, and 4, and Rules 1.2, 2.2, 2.10, 2.11, 2.13, 3.1, 3.12, 3.13, 4.1, and 4.2.

In essence this means that judge cannot improperly be “for” or “against” a party appearing before him or her in a case.  The case law also tells us that judges cannot be improperly “for” or “against” a particular attorney for a party.

And, a judge cannot be improperly “for” or “against” a particularly type of party, such as people from a certain place or with a particular belief system, religion, etc.