ethics

Former Judge Burge Law License Suspended

On August 13, 2018, the Supreme Court of Ohio suspended the law license of former Lorain County Common Pleas Court Judge James M. Burge.  Burge was convicted of crimes related to his failure to disclose his interest in office buildings on his financial disclosure forms while sitting on the bench and then assigning paid legal work to attorneys who rented office space from him.

Burge was suspended for one year with six (6) months stayed.  He was also given credit for three (3) months and three (3) weeks that he had served under an interim suspension issued in April 2015 for his convictions for tampering with records and falsification.

The Supreme Court of Ohio deemed the sanction given sufficient since Burge’s misconduct occurred while he was on the bench and he has resigned from the bench.  It believes Burge’s misconduct will not recur.  In Ohio, a judge must have a license to practice law in good standing to maintain his position on the bench.

While a sitting judge, Burge was charged with 12 counts of criminal conduct.  A jury convicted him of three misdemeanor falsification charges and three felony tampering charges.  A visiting judge dismissed the remainder of the charges.  One month later, the felony charges were reduced to misdemeanors.

Burge also made disparaging remarks to convicted criminals appearing before him.  He told one man he “would have paid 50 bucks to give you a beating before you went.”  To another man, he remarked:  “Now if I were to believe you were that stupid, James, I would just have Deputy Motelewski shoot you right now, because I know you’re not going to make it through life.”  In a letter written on court stationery, Burge characterized the proposed bill of a former General Assembly representative as “nothing more than the hobgoblin of a small-minded, mouth-breathing, Tea Party type whose political style and abilities uniquely qualify him to do nothing.”

In a dissenting opinion, Justice Kennedy’s dissent stated that she would have imposed a two-year suspension with one year stayed for such conduct.

Disciplinary Counsel v. Burge, 2019-Ohio-3205.

ethics

Judges Driving Under The Influence

It has, yet again, been a busy week for judicial disciplinary charges this week.

Portage County Common Pleas Court Judge Becky Doherty may face further disciplinary action as a result of an OVI case brought against her.  On February 2019, Judge Doherty was arrested and charged with driving under the influence of alcohol after she drove a vehicle belonging to an Akron woman off a snowy on-ramp to Interstate 76 eastbound at Route 43 in Brimfield and crashed into a ditch at about 9:15 p.m.  She later pled guilty to the charge, a first-degree misdemeanor.

As a result, on May 20, 2019, the Office of Disciplinary Counsel filed disciplinary charges against Judge Doherty with the Board of Professional Conduct requesting sanctions against her for violations of the Code of Judicial Conduct.  She was charged with failure to act in a manner that promotes public confidence in the judiciary and failure to avoid the appearance of impropriety.  The formal hearing on the matter will occur on October 22, 2019.

Chief Assistant Disciplinary Counsel Joe Caligiuri stated that the sanction on this first offense will likely be a stayed suspension or a public reprimand.

In the meantime, the office of Disciplinary Counsel also filed disciplinary charges against Franklin County Domestic Relations Court Judge Monica Hawkins for her conviction for driving while under the influence of alcohol.  Hawkins was arrested in Pickerington on January 31, 2019, with a blood-alcohol level of .199%, nearly twice the legal limit.  Judge Hawkins informed the arresting officer that she was a judge and said she had not been drinking.  She was later convicted of the charge.  The Office of Disciplinary Counsel charged her with failing to comply with the law and failing to act in a manner that promotes public confidence in the judiciary, violations of the Code of Judicial Conduct.  The charges could result in the suspension of her license to practice law.  A suspension carries a heavy penalty as it means that she would also be suspended from the bench as a requirement for holding judicial office is to be able to practice law in Ohio.

ethics

U.S. Supreme Court Justice John Paul Stevens Dies At Age 99

After living a good long life, U.S. Supreme Court Justice John Paul Stevens passed away on July 16, 2019, at age 99.  Formerly a Republican antitrust lawyer, Stevens’s 35 years on the U.S. Supreme Court transformed him into an outspoken leader of the court’s liberal wing. Stevens joins U.S. Supreme Court Justices Oliver Wendell Holmes, Jr. and William O. Douglas as one of the longest sitting U.S. Supreme Court Justices on the U.S. Supreme Court bench. Justice Stevens was appointed to the bench in 1980 by President Gerald R. Ford to replace Justice William O. Douglas.

Among his more well-known opinions was Rasul v. Bush, 542 U.S. 466 (2004). Writing for the majority, Stevens brought within the jurisdiction of the federal courts the fate of hundreds of prisoners captured during the war in Afghanistan and Pakistan and held at Guantanamo Bay.

Justice Stevens wrote the majority opinion in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) disallowing the Bush administration to put some of those detainees on trial by military commission.

In 2010, Justice Stevens retired after the decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). There the U.S. Supreme Court held that the federal government could not limit corporations from spending money to influence the outcome of elections.  The majority held that the First Amendment prohibits Congress from passing any law that would fine or jail citizens or associations for engaging in political speech.  This includes, according to the opinion, a speaker speaking on behalf of an association existing in a corporate form. The opinion expanded the rights of corporations to spend money and speak on politics.  This ruling led to the creation of super PACs.

Dissenting, Justice Stevens wrote that the opinion rejected the common-sense notion of the American public that recognized a need to prevent corporations from undermining self government.  Justice Stevens wrote that, in the context of elections to public office, the distinction between an individual and corporate speaker is significant.  While corporations make enormous contributions to American society, they are not actually members of it.  Where the corporation is managed or controlled by nonresidents, its interests may conflict in fundamental ways with the interests of eligible voters.  The opinion was decided on January 21, 2010.  Justice Stevens announced his retirement from the bench on April 9, 2010.

After retiring, Justice Stevens had an active career as an author and public speaker.

 

ethics

Judicial Felon Suspended

On July 1, 2019, the Supreme Court of Ohio suspended the law license of former Mahoning County Common Pleas Court judge Diane Vettori-Caraballo, after a federal judge sentenced her to 30 months in prison.  The prison sentence followed Ms. Vettori-Caraballo’s conviction for stealing from the estate of a deceased client. Ms. Vettori-Caraballo was convicted of mail fraud, structuring bank deposits and making false statements to law enforcement.  The Supreme Court of Ohio suspended her license for an interim period due to her felony conviction pending disciplinary proceedings.

Ms. Vettori-Caraballo was ordered to pay $328,000 in restitution, an amount both her counsel and the prosecutors agreed upon.  The theft occurred from the estate of Ms. Vettori-Caraballo’s former client, Dolores Falgiani.  Ms. Vettori-Caraballo absconded with the money when she found it in cash hidden in Ms. Falgiani’s home after her death in 2016.  Since Ms. Vettori-Caraballo has been a Mahoning County Common Pleas Court judge since her election in 2002, her conduct occurred while she was a sitting judge.

The matter was referred to the Office of Disciplinary Counsel for further investigation says The Vindicator, the Youngstown paper.

 

 

ethics

Dismissal of Kavanaugh Complaint Appealed

New York attorney Jeremy Bates appealed the 10th Circuit’s December 2018 dismissal of the complaint filed against Supreme Court Justice Brett Kavanaugh as a result of his emotional response to allegations that he engaged in sexual harassment of Christine Blasey Ford while in high school.

“Most ‘lawyers cannot evade attorney-misconduct proceedings by resigning from state bars. Why should federal judges be able to evade discipline through promotion to the Supreme Court?’ the petition asks.”  ABA/Bloomberg Law Lawyers’ Manual on Professional Conduct, Current Reports, April 29, 2019.  The 10th Circuit dismissed the complaint stating that Justice Kavanaugh’s elevation to the U.S. Supreme Court took the matter out of the purview of the judiciary’s misconduct process, which only applies to the lower courts.

“Any request to review such dismissals would head to the judiciary’s Committee on Judicial Conduct and Disability, the Administrative Office of the U.S. Courts confirmed. That committee is headed by Third Circuit Judge Anthony Scirica.”  Id.  The full Judicial Conference headed by Justice Roberts, under which the Judicial Conduct Committee sits, could review the Judicial Conduct Committee’s determination.  However, the rules of judicial conduct state that the Judicial Conduct Committee’s determination is final in circumstances where the Judicial Conference does not exercise its powers of review.

ethics

Board Recommends Indefinite Suspension for Judge Horton

In a 42-page Report to the Supreme Court of Ohio, the Board of Professional Conduct recommended that Judge Horton be indefinitely suspended from the practice of law.  In a three-count complaint, Relator, Disciplinary Counsel, charged Judge Horton with misconduct involving failure to file accurate campaign finance reports, misusing county resources in his judicial campaign, and inappropriate sexual conduct with a former intern and sexually harassing his secretary.

On March 16, 2017, Judge Horton pled guilty to three first-degree misdemeanor counts of failing to file complete and accurate records regarding campaign contributions and expenditures.  Judge Horton was sentenced to 6-month consecutive jail sentences, which were suspended in favor of probation.

The Board found that Judge Horton engaged in misconduct by insisting that his staff work on his judicial election campaign on county time.

County Three involved Judge Horton having inappropriate sexual conduct with two members of his judicial staff both in the workplace and outside of the workplace. One involved his secretary, a former hostess at T. Murray’s Bar and Grill. Judge Horton informed her of a secretarial position available at his office and she took the job, saving her from having to work two part-time jobs.  During her employment, Judge Horton made it clear that she was to be at his beck and call, work on his campaign, be available to entertain his friends and endure his constant sexual harassment.  He also sent her inappropriate text messages and later instructed her to destroy them.

Judge Horton also sexually harassed a legal intern during her internship.  He spoke to the intern about the importance of loyalty and explained that people got jobs in the legal industry by being loyal.  Judge Horton told the intern about the power he possessed and his ability to affect people’s careers.  The result was that, even though she did not want to, the intern agreed to have sex with Judge Horton.

The Board found that Judge Horton’s misconduct called into question his character and integrity as both an attorney and a judge.  It found that he violated Jud. Cond. Rules 1.2, 1.3, 2.3(B) and Prof. Cond.R. 8.4(h).  The Board recommended to the Supreme Court of Ohio that Judge Horton be indefinitely suspended from the practice of law.

The Supreme Court of Ohio now must decide whether to adopt the Board’s recommendation.  If Judge Horton is indefinitely suspended, he will lose the ability to remain on the 10th District Court of Appeals until reinstated to the practice of law, a minimum of at least two years.

ethics

WEST VIRGINIA CHIEF JUSTICE RESIGNS FOLLOWING FELONY CONVICTION

It has been a busy week in ethics.  On November 14, 2018, Bloomberg BNA reported that Allen H. Loughry, II, Chief Justice of the West Virginia Supreme Court resigned following his felony conviction October 12, 2018, on charges of misuse of public funds.  Justice Loughry resigned as the legislature was meeting to consider removing him from office.  Loughry had been suspended since he and his fellow colleagues on the West Virginia Supreme Court were charged with lavish spending, misuse of state property and failure to oversee the spending operations of the court.

Justice Elizabeth D. Walker, impeached for like conduct in July 2018, was not removed, but rather, was publicly censured.  She replaces Loughry as Chief Justice.  Justice Menis Ketchum resigned in July after pleading guilty to wire fraud charges and misuse of a state credit card.  Justice Robin Davis also resigned.  Justices Margaret Workman and Robin Davis still face impeachment trials.

Loughry was convicted of eleven charges (fraud and swindle; fraud by wire; fraud by wire, radio or television; influence/injuring officer/juror/witness; statements or entries generally), acquitted of ten charges and the jury was hung on one charge alleged in his indictment.

The charges stem from Loughry’s spending of $363,000 on renovations to his office.  He also removed a historic “Cass Gilbert” desk from the state Capitol and took it to his home.  The state legislature began impeachment proceedings due to citizen outrage of the opulent spending.  One delegate noted that the renovation to any individual office was greater than the price of an average home in West Virginia.

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