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Archive for the ‘Ethics’ Category

Judge Timothy C. Ellender, a Terrebonne Parish judge, was suspended by the Louisiana Supreme Court after his treatment of Eula Warren during a protective order hearing.  Ellender stated, “Heat, big smoke, but no fire. Dismissed,” and told Warren, “You want a divorce, get a divorce. You’re not getting a [temporary restraining order]. See y’all later.”  Warren complained to the Office of Special Counsel that Ellender seemed to approve of her husband’s abusive behavior, stating, “I understand now why women don’t go to the courts for help/protection because that judge treated me just like my husband does.”  Ellender admitted to having been “impatient” and “dismissive” during the hearing, but denied having violated the codes of judicial conduct.  In addition to the suspension, the Louisiana Supreme Court ordered Ellender to pay a $185 fine and complete a training course on addressing domestic violence cases.  For the full story, click here.

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The case of Caperton v. A.T. Massey Coal from the West Virginia Supreme Court of Appeals has gotten a lot of attention, even from this blog (click here for details).  The case was appealed to the United States Supreme Court over concerns regarding whether Justice Brent D. Benjamin should have recused from hearing the case because he had received contributions from Massey Coal.  The Supreme Court agreed that Justice Benjamin should have recused, noting that it was unconstitutional for him to sit on such a case.  For the full story, click here.

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Gene Cauley, an Arkansas attorney, was one of the lead plaintiff’s attorneys in a securities lawsuit against BISYS Group, Inc., an insurance company, that Cauley alleged inflated its stock value by issuing false and misleading press releases and financial filings.  The parties settled the lawsuit in 2006 for $65.8 million.  Cauley was the sole signatory of an account created to hold the settlement money.  Last month, Cauley informed his co-counsel that he could not produce $9.3 million of the settlement funds that were supposed to be distributed to the plaintiffs. 

New York federal judge Jed Rakoff held a hearing regarding the missing funds.  At the hearing, Cauley was represented by criminal lawyer, John Wesley Hall, who informed the court that the money was not “presently available,” but would not elaborate based on Cauley’s privilege against self-incrimination.  Hall has noted, however, that Cauley intends to produce the money within 90 days. 

For the full story, click here.

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  1. Preside over a case in which one of the parties contributed to your judicial campaign (full story)
  2. Swear at a party or a party’s attorney (full story)
  3. Sentence criminal defendants to attend a probation program you own or control (full story)
  4. Physically intervene when a party starts beating up a witness or opposing party (this actually happens quite frequently) (full story)
  5. Preside over a case in which one of the parties is a close friend or family member (full story)
  6. Write a racially charged newspaper column (full story)
  7. Preside over a criminal case concerning a bomb that damaged your courtroom and chambers (full story)
  8. Preside over a criminal case in which (1) one of the interested parties was your previous employer and (2) the previous employer had been publicly critical of the criminal defendant (full story)
  9. Publicly advocate for the death penalty when you sit on capital murder cases (full story)
  10. Use score cards to keep track of counsels’ objections (full story)

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Sentis Group, Inc. v. Shell Oil Co., Nos. 07-2308/2573/3162.

Plaintiffs in this case operated Shell gas stations and convenience stores under contracts that required Shell to reimburse plaintiffs for some of the costs of maintaining retail gas operations.  The case turned on how those costs were calculated.  Plaintiffs claimed that Shell misrepresented how those calculations would be made.

The parties engaged in extremely contentious discovery.  The parties disputed (1) whether several persons were plaintiffs’ employees or consultants, (2) whether certain documents were protected by attorney-client privilege or if the privilege had been waived by providing those documents to an expert, (3) whether plaintiffs produced all of the conversations with Shell employees they had secretly recorded, and (4) whether plaintiffs had concealed financial information and e-mails.  Shell filed a motion for sanctions based on plaintiffs’ conduct during discovery.  Based on plaintiffs’ refusal to produce information in discovery, the trial court stated:

. . . I kept telling you to produce stuff, expert stuff.  You ducked.  You wove.  You did everything to keep from producing them.  You go to the Eighth Circuit.  They tell you to produce them, and you still goddamn don’t produce them.  Now what the hell do you not understand? . . . That’s it.  I’m done.  I’m granting the defendant’s motion to dismiss this case for systematic abuse of the discovery process. . . .

After this hearing, plaintiffs submitted a motion for recusal, which the trial court denied.

On appeal, the Eighth Circuit Court of Appeals reverse the trial court on the recusal issue, vacated the trial court’s order of dismissal, and remanded the case for reassignment and reconsideration of the motion for sanctions.  The court stated that “neither party behaved in a manner consistent with the spirit of cooperation, openness, and candor owed to fellow litigants and the court and called for in modern discovery.”  The court then noted that the trial court had directed profanities to plaintiffs over fifteen times during the course of the litigation and that a reasonable man would harbor doubts about the judge’s impartiality in this situation.

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The bounds of a judge’s authority has previously been discussed on this blog (potential conflict of interest relating to Judge Willard Proctor and Cycle Breakers), which noted that judges are generally allowed to decide for themselves if there is a conflict of interest.  There are a few bright-line rules, but the rest is gray area.

It appears that the Supreme Court has decided to weigh in on the question of a judge’s duty to recuse if one of the parties contributed to the judge’s election campaign.  For a thorough discussion of the due process implications involved, click here.

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I’ve heard about this controversy for some time and, honestly, have given it very little thought.  Recently, however, I read an article in the Arkansas Times, “Kid Gloves,” which caused me to consider the issues raised and, eventually, dismiss them.  To read the Arkansas Times article, click here.  The following is a summary of why I have no problem with Judge Willard Proctor ordering people to attend Cycle Breakers or his involvement with Cycle Breakers.

Civil Probation

As an initial matter, judges order people to attend classes all the time.  Sometimes the label of “probation” is attached to the order.  I can’t tell you how many speeding tickets I’ve had that were resolved with probation.  I’ve attended so many defensive driving classes, I could teach one myself.  I have no idea who put those classes on–and each one was different–but I didn’t care.  I paid my money to attend, gave up a Saturday, and got out of having a ticket on my record.

If you’re arrested for anything related to domestic violence, you’ll likely be ordered to attend a set amount of anger management classes.  You’ll be scheduled a follow-up hearing in front of the judge, and the judge’s staff will call to make sure you attended all of the classes you were supposed to.  If not, you’re in contempt of court.  If you’ve got a good enough excuse for why you didn’t attend all of the meetings like you were ordered, you may get out of being thrown in jail.  You’ll definitely be ordered to attend some more of the meetings.  The meetings, of course, are not free.  I have no idea who runs them.

If you want to get a divorce or separation and you have children, you’ll be ordered to attend parenting classes before the judge will grant your divorce or separation.  I have no idea who runs these classes, and they’re definitely not free.

I’m sure there are many other examples of “civil probation” out there.  The reason I include these here is to show that (1) Judge Proctor is not the only judge who orders people to attend classes in lieu of other punishment and (2) he is not the only judge who uses contempt of court to enforce his judgment and make sure the person does what he has been told.

Interestingly, many of these classes are run by local and state government.  A judge is an employee of the state, so–technically–anytime a judge orders someone to attend a class put on my by local or state government, there’s a potential conflict of interest.  I haven’t seen any articles written about this “money machine.”

Cycle Breakers

I haven’t done any independent research into this non-profit corporation, and my thoughts that follow are based only on my understanding of charitable organizations in general.

No one makes money off of a charitable non-profit.  Even if Judge Proctor is the sole shareholder of Cycle Breakers, he isn’t receiving dividends on the “profit” of the corporation.  If Cycle Breakers is making any money, that money has to be reinvested back into the organization.  Based on the building/loan troubles discussed in the Arkansas Times article, it seems pretty clear that Cycle Breakers (like most new businesses) isn’t even breaking even yet.  A non-profit may have employees, but there’s no information to suggest that Judge Proctor is a paid employee of Cycle Breakers.

Charitable non-profits don’t pay taxes like you and me.  To qualify as a charitable non-profit, an organization has to operate for a certain kind of purpose (church, education, etc.).  After filing out a bunch of paperwork to create the non-profit, the IRS watches closely to make sure that ALL of the activities of the organization fit into that purpose.  I’ve worked with several charitable non-profits, and you always have to be careful to stay within the limited parameters of the organization’s charter.

If Cycle Breakers were to fold today, it would not hurt Judge Proctor financially.  Cycle Breakers is a corporation and is considered a separate “person” under the law.  Unless Judge Proctor personally guaranteed debts of Cycle Breakers, the creditors of Cycle Breakers would most likely not be able to recover any money from Judge Proctor.  This is true even if Judge Proctor helped fill out loan documents or supplied information about Cycle Breakers.

Arkansas Code of Judicial Conduct

If you wish to read through the various canons regulating a judge’s conduct, click here, which is the website for the Arkansas Judicial Discipline & Disability Commission.  Once there, you can click on the subject in the Code of Judicial Conduct you wish to read.

The main thread of all the different canons is that, understandably, we want our judges to be impartial.  If I sue Judge Proctor’s brother (assuming he has one), and the case is assigned to Judge Proctor, then, of course, he has to recuse from hearing the case.  Another example is suing Wal-Mart, and Judge Proctor owns a substantial amount of Wal-Mart stock (assuming he does).

Family and financial ties are generally pretty clear, but most potential conflicts of interests are not.  Judges are presumed to impartial, and they are given wide latitude in determining for themselves whether they should recuse.  Here are some other examples in which judges didn’t have to recuse:

  • A judge is not required to recuse from a criminal case relating to the same crime that has been committed against the judge.  Even if a judge had been raped in the past or a family member murdered, the judge does not have to recuse.
  • A judge is not required to recuse from a criminal case even if she has personal knowledge of the case from other judicial proceedings.
  • A judge is not required to recuse from a criminal case even though the judge prosecuted the same defendant several years earlier.
  • A judge is not required to recuse from a criminal case even if the judge threatens to have the defendant’s mouth taped closed to prevent him from disrupting a hearing.
  • A judge is not required to recuse because one of the lawyers in the case ran against the judge and/or plans to run against the judge again.

Conclusion

I am interested in hearing what the Judicial Discipline Board has to say about the matter, especially given that it will have ALL of the facts.  Without more than what has been presented in public forums against Judge Proctor, I’m not buying it.  I’m happy to have a judge who cares so much about his community.

Finally, besides the upcoming hearing in front of the Judicial Discipline Board, there are two other options to stop Judge Proctor from ordering people to attend Cycle Breakers:  (1) Vote him out–he’s an elected official or (2) Change the Code of Judicial Conduct/pass some statute against it.  Again, without more, I don’t believe I will support either of these options.

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