Civility & Decorum: a courtroom scene.

And….action!

I’ve lost track of the number of times I’ve blogged or spoken on civility.  I’m sure many are tired of it.

However, I’m equally certain that Vermont’s judges have supported my efforts.  The judge to whom I owe the most thanks for supporting me on this front often uses a saying that captures the heart of my message far more succinctly than I:

“You are free to disagree.  You are not free to be disagreeable.”

Today’s post honors that judge.

The story comes via AL.com and the ABA Journal.  Respectively, the headlines are:

  • “Judge told Alabama defendant ‘I’ll bust your ass’ complaint alleges.”
  • “Judge is accused of threatening to bust butt of traffic defendant, claiming she likes to ‘flim-flam’ people.

Cutting to the chase: the conduct complaint filed against the judge by Alabama’s Judicial Conduct Commission is here.

From the headlines, and the fact that the judge has been charged, I suspect you’ve already reached the same conclusion as I: it is unlikely history will reflect as kindly on this Alabama courtroom scene as it does on those in To Kill a Mockingbird and My Cousin Vinny.

Here’s what happened.

In 2018, Kimberly Farranto’s car was hit while parked at the restaurant where she worked.  The driver fled, but Farranto was able to determine from a credit card receipt that a passenger’s last name was “Price.” She was not able to determine who was driving.

Flash forward to February 2020.

Farranto appeared in court on a charge of driving with a suspended license.  Waiting for her case to be called, she noticed that the judge’s last name was “Price.” Apparently using her cell phone to investigate, she learned that the judge was likely the father of the passenger in the car that hit hers. Once her case was called, Farranto asked the judge if the passenger was his son.  When the judge answered “yes,” Farranto asked the judge to recuse himself.  When asked why, Farranto told the story and explained that she might sue the judge’s son to provide the name of the driver.

In the end, the judge recused himself.  It’s the colloquy along the way that is relevant to this post.  For a full description, read paragraphs 13-24 of the conduct complaint.  Among other things, the complaint alleges:

  • “Judge Price interrupted Ms. Farranto and was very very angry. He screamed at her that, if she went after his son, he would ‘sue her ass.’”

Then,

  • “Continuing in a loud voice, Judge Price responded ‘Oh yeah, I know who you are. You’re the lady who likes to flim-flam people.’”[i]

Later, after being told that Farranto might sue his son:

  • “Judge Price yelled at her threateningly. ‘If you sue my son, I will bust your ass.’ Judge Price’s face was very red.”

As, the “discussion” continued:

  • “Judge Price yelled at Ms. Farranto, ‘You’re a G*d D**n liar.”

It went on from there, with more of the same. Eventually, the judge gave Farranto both the driver’s name and a new court date with a different judge.

I am not aware of a Vermont judge ever reacting like this.  Still, lawyers, let’s use it as a teachable moment.  If this were to happen to you, how should you respond?

The answer: exactly as Ms. Farranto did.

Rule 3.5(d) of the Vermont Rules of Professional Conduct prohibits discourteous conduct that is degrading or disruptive to a tribunal.  A comment to the rule states that “[a] lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate.”

According to the conduct complaint, “[throughout the entire exchange . . . Ms. Farranto did not get upset, raise her voice, or act rudely.”  In other words, it appears that Farranto stood firm without reciprocation or similar dereliction. That is, while she disagreed with the judge’s behavior, Ms. Farranto was not disagreeable in response.

Nor am I aware of any matter in which a Vermont judge presided over a hearing at which a litigant indicated an intent to sue the judge’s child.  Judges, if that happens, here’s a primer on judicial recusal.  I suggest the ABA approach instead of Judge Price’s.  Again, the maxim matters: when it comes to recusal, you may disagree with the request, but you should not be disagreeable in response.

Which brings me to my favorite line in this unfortunate episode.

After Ms. Farranto left the courtroom, Judge Price said to the Chief Magistrate, “Ms. Roberts, I think I might have lost my cool.”

The Chief Magistrate replied, “You think?”

And Scene GIFs - Get the best GIF on GIPHY

[i] Until reading this, I did not know what “flim-flam” meant or that it could be a verb.  Per Dictionary.com, when used with an object, “flim-flam” means “to trick, deceive, swindle or cheat.”

Judicial Recusal: Guidance from Mag & the ABA

In my first year as a high school varsity basketball coach, I started a sophomore guard named Chris Magistrale.  “Mag” (pronounced “madge”) was a terrific player, teammate, and person.   By the time his high school basketball career ended, he’d been named captain, earned numerous all-league & all-state honors, and scored more than 1,000 points.  He and I remained close over the years.

A few years after graduating, Mag got into reffing.  He eventually worked his way up to the varsity level, reffing in the same league in which he used to play and in which I continued to coach.  Somewhat surprisingly, one year, Mag was assigned to ref our season-opener.  He worked a great game, neither helping nor hurting his alma mater & old coach.

Still, a few opposing coaches expressed concern to the referee in charge of assigning officials.  From then until my retirement, Chris never again worked one of my games.

And rightfully so.  In basketball, when it comes to the fairness of the game, appearances matter.

Last week, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 488.  The opinion provides guidance as to judges’ obligations to recuse themselves due to a social or personal relationship with a party or lawyer.  The ABA Journal and Lawyer Ethics Alert Blog reported on the opinion.

The opinion begins by citing to Rule 2.11 of ABA Model Code of Judicial Conduct. The rule governs disqualification.  Vermont’s equivalent is Rule 3(E) of the Vermont Code of Judicial Conduct.  For the most part, it mirrors the Model Rule by requiring recusal whenever a “judge’s impartiality might reasonably be questioned.”  Then, the VT rule lists various relationship in which it is presumed reasonable to question the judge’s impartiality.

Vermont’s rule includes another critical component.  As I read Rule 3(G), even if a judge’s initial (and perhaps internal) decision is that recusal is not required, the judge must nevertheless “disclose any fact or matter relevant to the question of impartiality that, in the judge’s view, may require disqualification under Rule 3(E)(1).”

In any event, back to the ABA Opinion.

The opinion divides judges’ social and personal relationships into three categories:

  1. Acquaintances
  2. Friendships
  3. Close Personal Relationships

The conclusion:

  • ” In summary, judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to
    the other lawyers and parties, depends on the circumstances.”

Judicial ethics are not my bailiwick. Nevertheless, I find the final sentence in the block-quote a bit surprising.  It strikes me that “close and personal” should require recusal.  Indeed, my sense is that the Vermont bench errs on the side of caution and that our judges disclose and recuse themselves more often than the opinion suggests is required.

To me, that’s a good thing.  Like basketball, when it comes to the fairness of the judicial process, appearances matter.

By the way, Chris is still pretty terrific.  He is making a difference in this world.  Here’s Mag now:

 

Judges & Facebook Redux

In November, I posted Judges & their Facebook Friends.  

The post highlighted the Florida Supreme Court’s conclusion”that an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.”  I blogged that I agreed, but concluded with:

  • “Finally, remember: just like real-life relationships, a Facebook friendship or other social media connection might create an appearance that provides a basis to inquire further.  So maybe it’s best to avoid such connections.”

At the time, I didn’t think it necessary to add “for instance, a judge shouldn’t accept a FB friend request from a litigant a week after a contested hearing, but before the judge has issued a ruling.”  Seems obvious, right?  Apparently not to all.

Yesterday, Kevin Lumpkin tipped me off to this opinion from an appellate court in Wisconsin.  Besides being timely – the opinion only issued yesterday – Kevin is also a regular member of the #fiveforfriday Honor Roll in legal ethics.

Kevin – thanks for the tip!

Here’s what happened.

In 2011, Angela and Timothy stipulated to an order granting them joint legal custody of their child. In 2016, Angela moved to modify the order.  A hearing on the motion took place in June 2017.  Among other things, Angela argued that Timothy had physically abused her.  The judge allowed the parties 10 days to file post-hearing memoranda and took the matter under advisement.

The critical section of the timeline:

  • June 16: Angela and Timothy each filed post-hearing memos.
  • June 19: the judge accepted a Facebook friend request from Angela.
  • June 19-July 14: Angela “liked” 18 of the judge’s Facebook posts and commented on two of them.  She had also liked or shared multiple third-party posts related to domestic violence.
  • July 14: the judge issued his ruling.

The judge granted Angela’s motion.  He concluded that had established that Timothy’s pattern of domestic abuse was a substantial change in circumstances that warranted a modification of the order.

Angela’s Facebook friendship with the judge eventually came to light.  Timothy appealed, arguing that, at the very least, the e-relationship created an “appearance of partiality.”

The appellate court agreed that it had.  Indeed, given the facts peculiar to the case, the court saw no need to address when, exactly, a social media relationship requires disqualification. As they say, it was a no-brainer.  The court reversed and remanded the judge’s decision, and directed that a different judge consider Angela’s original motion.

I remain of the opinion that a social relationship, standing alone and whether electronic or “real life,” is not a sufficient basis to disqualify a lawyer from appearing before a judge.  I also remain of the opinion that such relationships merit further inquiry before proceeding.

But the Wisconsin case did not involve a pre-existing relationship.  Angela actively sought the judge’s electronic friendship while her motion remained pending! As the Wisconsin appellate court noted:

  • “First, the time when [the judge] and [Angela] became Facebook ‘friends’ would cause a reasonable person to question the judge’s partiality. Although [the judge] apparently had thousands of Facebook ‘friends,’ [Angela] was not simply one of the many people who ‘friended’ him prior to this litigation. Rather, [Angela] was a current litigant who reached out to [the judge] and requested to become his Facebook ‘friend’ after testifying at a contested hearing, at which [the judge] was the sole decision-maker. [The judge] then took the affirmative step to accept this ‘friend’ request before issuing his decision in this case.

Take social media out of it.  The result – an  appearance of partiality – is no different than if the judge had agreed to buy a ticket to a calcutta to raise money for Angela’s kid’s school trip.  Or accepted an invitation to join her gym.

As I blogged a few weeks ago, don’t fear tech.  Instead, use common sense.

Finally, the decision makes me wonder: does the duty of competence include advising clients NOT to forge social media relationships with judges while a matter is pending?

If you know the client intends to? Yes. Generally, probably not. But it’s worth keeping in mind.

Social Media

 

 

Judges and their Facebook Friends

Last year, I blogged on the Florida case in which a lower level court held that, standing alone, a judge’s Facebook friendship with a lawyer is not sufficient to disqualify the judge from a matter in which the lawyer appears.

I wrote:

This makes sense to me.  As with almost everything tech-related, I try to use analogies to non-tech stuff.  For example, if you learned that a lawyer who regularly appeared before a judge belonged to the same health club, or went to the same church, or was in the same law school class as the judge my guess is that you wouldn’t reflexively yell “conflict! disqualify the judge!”

No, you might ask something as simple as, “do they actually know each other? If so, how well? Do they do stuff together?”

In my view, Facebook is no different.  Florida’s Third District Court of Appeal agrees. The opinion presents a fantastic analysis of what it means, if anything, to be Facebook friends with someone.

The decision directly conflicted with another from a different Florida district.  So, the Florida Supreme Court agreed to resolve the issue.

Today, the Court issued its opinion.  For those of you who like to cut to the case, here you go:

  • “We hold that an allegation that a trial judge is a Facebook ‘friend’ with an
    attorney appearing before the judge, standing alone, does not constitute a legally
    sufficient basis for disqualification.”

I like the opinion.  I like it because it resolves a “tech” issue by analogizing to how we did things pre-tech.  To summarize:

  1. Since well before Facebook and social media, Florida law has recognized “that an allegation of mere friendship between a judge and a litigant or attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.”
  2. There’s no reason to treat a Facebook friendship any differently than a “traditional” friendships.  In fact, it’s likely that Facebook friends are less friendly than traditional friends.
  • “In short, the mere fact that a Facebook friendship’ exists provides no
    significant information about the nature of any relationship between the Facebook
    ‘friends.’ Therefore, the mere existence of a Facebook ‘friendship’ between a
    judge and an attorney appearing before the judge, without more, does not
    reasonably convey to others the impression of an inherently close or intimate
    relationship. No reasonably prudent person would fear that she could not receive a
    fair and impartial trial based solely on the fact that a judge and an attorney
    appearing before the judge are Facebook ‘friends’ with a relationship of an
    indeterminate nature.”

From there, the Florida Supreme Court observed that its decision is consistent with the majority of states that have addressed the issue.

Finally, remember: just like real-life relationships, a Facebook friendship or other social media connection might create an appearance that provides a basis to inquire further.  So maybe it’s best to avoid such connections.

For now, here’s the final paragraph from the Florida opinion:

  • “In some circumstances, the relationship between a judge and a litigant,
    lawyer, or other person involved in a case will be a basis for disqualification of the
    judge. Particular friendship relationships may present such circumstances
    requiring disqualification. But our case law clearly establishes that not every
    relationship characterized as a friendship provides a basis for disqualification. And
    there is no reason that Facebook ‘friendships’—which regularly involve
    strangers—should be singled out and subjected to a per se rule of disqualification.”

Regular readers know my response:

Image result for facebook like symbol

 

Thursday’s Tidbits

 

Tidbits

I’ve scoured the interwebs to bring you the latest news that may or may not be related to legal ethics & professional responsibility.

  1. I often blog on the duty of competence.  Remember the LSAT?  For many years, critics have argued that the LSAT makes no effort to measure, and does not predict, professional competence.  Well, someday soon, you might be working with a lawyer who never took it.  As reported by The Wall Street Journal, an increasing number of law schools are dropping the LSAT requirement.
  2. My posts on the duty of competence usually relate to tech competence.  A post on SLAW, argues that laptops should be banned in law school classrooms and, perhaps, courtrooms.
  3. If you use your laptop, you might remember my blog on the Legal Keyboard. On his LawSitesBlog, Robert Ambrogi updates us on the mini version for travel.
  4. Rule 1.5 prohibits unreasonable fees.  It’s okay to accept a fee in something other than money.  For instance, property.  But, as this suspension order from the Ohio Supreme Court reminds us, the value of the property must reasonably approximate the value of the services provided —  and, of course, the property transfer must not violate the criminal law.
  5. Next year is an election year in Vermont.  Professor Alberto Bernabe, a frequent member of the #fiveforfriday Honor Roll, blogged on whether defense lawyers should be allowed to contribute to prosecutors’ campaigns.
  6. Is your firm set up as a partnership or, perhaps, an LLC? The TaxProfBlog links to a Wall Street Journal article For Pass-Through Businesses, Let The (Tax) Games Begin.
  7. Related, yesterday, the ABA Journal reported that the ABA asks Congress to include law firms in pass-through tax relief.
  8. Last week I blogged on paralegal licensing.  A post on Law Times argues that it is Time for graduated licensing for lawyers.
  9. From the ABA Journal, apparently there’s a ” ‘baffling phenomenon’ of lawyers who shoplift.”    It might make you ask yourself “self, was that wrong?”
  10. Regarding judicial ethics, can a judge use the internet for independent legal research?  This advisory opinion from the ABA has the answer.  For a synopsis, the ABA Journal article on the opinion is here.

 

 

Florida OKs Judges at Beauty Pageants

One of the great debates in legal ethics has been resolved: a real judge may serve as a judge at a qualifier for the Miss America competition.

So says the Florida Supreme Court’s Judicial Ethics Advisory Committee in JEAC Opinion 2017-08. The opinion was first reported by the Legal Profession Blog and the ABA Journal.

I had no idea that this was even a topic.  Well, it is.  Not only that, it’s a divisive topic! Although there’s no written dissent, the opinion notes that a committee member dissented.

I hope someone attends the pageant, sees the judge judge, points & says “there she is  . . .”

 

Bert Parks

Don’t Do This: Atoms for Peace

So, you judges and aspiring judges, here’s a tip: don’t preside over a case to which you are  party.

Sounds obvious, right?

Well, apparently not to everyone.  Check out THIS post in the ABA Journal.

PS: still plenty of time to enter this week’s Five for Friday ethics quiz

Bonus points to anyone who can tell me what the title of this blog post – “Atoms for Peace” – has to do with the subject of the post.