From: Doug Schafer [mailto:d_schafer@bigfoot.com]
Sent: Saturday, March 02, 2002 6:58 PM
To: legalethics@lists.washlaw.edu
Subject: [Legalethics] Another misfit judge; MR 8.3's Misguided Priorities.On National Public Radio this morning, I heard the sorry tale of Orange County (Calif.) Superior Court Judge Ronald C. Kline, charged with child pornography and molestation. But he's nonetheless seeking re-election, and no candidate filed in time to appear on the ballot opposing him. Ten lawyers are write-in candidates, who need to collectively garner 50% of the votes cast to prevent Kline's re-election in the primary.
Some radio talk show hosts have a comprehensive website of the sorry tale: http://www.removejudgekline.com/ and a www.Google.com search using "Judge Kline" and "pornography" reveals many websites.
If a lawyer had learned confidentially from Judge Kline of his criminal pedophilia, could the lawyer report him to judicial conduct authorities?
I will argue 'till my dying breath that maintaining integrity of the judicial system is fundamentally more important than maintaining client secrets that enable injustice to be served by a corrupt or deviant
judge. I submit that the right of all people to have an honest judicial system is their inherent and/or Constitutional right. The "right" of a corrupt or deviant judge to have his dirty secrets kept so that he can keep judging others is (if even a "right") much less weighty. I suggest that if one intelligently weighs the competing policy considerations, a corrupt or otherwise lawless sitting judge should be permitted to have his/her dirty secrets maintained ONLY if he or she resigns completely from judicial office. With a resignation from judicial office, I would let an ex-judge retain his/her claim to lawyer secrecy and attorney-client privilege for purposes of opposing any criminal or civil liability.I simply believe it is an absurdity to give such priority to a legal-judicial doctrine (confidentiality) under circumstances that it perpetuates a corrupt legal-judicial system. As Prof. Lawry said, there
must first be an effective legal-judicial system within with an attorney-client relationship can even have meaning. The former must precede the latter, and have preeminence over the latter.I have found an absolute dearth of policy discussion (or scholarly literature) anywhere attempting to justify the Model Rule 8.3(c) elevation of secrecy over exposure of a patently dishonest judge (e.g.,
pattern of bribery). The only discussion of MR 8.3 that I have found addresses only the dishonest lawyer scenario -- and the policy considerations are an order of magnitude different. People choose their lawyer; their judge is forced upon them!Comments?
Doug Schafer, solo lawyer in Tacoma, Washington.
http://www.DougSchafer.com
_______________________________________________
LegalEthics mailing list
From: legalethics@lists.washlaw.edu (Doug Schafer)
Date: Mon, 04 Mar 2002 09:50:32 -0800
Subject: [Legalethics] Another misfit judge; MR 8.3's Misguided Priorities.Michael Oths wrote:
> Just so I understand -- as we stand here is this man *accused* or
> *convicted*? Do we care about that distinction?(1) Recognizing Constitutional rights to liberty, we (1) presume innocence until conviction, and (2) require a beyond-a-reasonable-doubt burden of proof for conviction, and (3) apply technical (some say "sporting") Rules of Evidence that serve various public policies (truth-seeking sometimes being subordinated to other policies, e.g. Miranda warnings).
(2) There neither is, nor should be, a Constitutional right to sit in judgment over the lives, families, and fortunes or pittances of others. When public information is such that "a reasonable person might question" the judge's impartiality (CJC Canon 3E), we require the judge to recuse, and if s/he fails voluntarily to do so (e.g., J. Penfield Jackson's Microsoft case) higher courts often vacate the proceeding. The same rationale -- the need to maintain public confidence in our judicial system -- ought to apply whenever there is public information such that "a reasonable person might question" the integrity or fitness of a judge.
(3) A judge whose integrity or fitness is publicly called into question by evidence that reasonably prudent people would find credible should be placed on administrative leave (though perhaps permitted to hear cases in which all litigants consent after full disclosure).
(4) Judges and sycophantic lawyers wrote the Model Rules for Judicial Disciplinary Enforcement (MRJDE) (http://abanet.org/cpr/juddis/home.html) to require that judicial misconduct charges be proven by the very highest civil burden of proof -- clear and convincing evidence -- (see Rule 7 at http://abanet.org/cpr/juddis/rule7.html), which plainly serves the judges' economic interests but not the public's interests. If evidence of a judge's dishonesty barely passes the preponderance test, the judge will retain office with the majority of people convinced s/he is corrupt. Even if evidence of dishonesty barely fails the preponderance test, but still is "substantial evidence," then a substantial portion of the population still think the judge is corrupt. So I submit that if the goals of judicial discipline are as claimed -- "The regulation of judicial conduct is critical to preserving the integrity of the judiciary and enhancing public confidence in the judicial system." [Preamble to MRJDE] -- then the proof threshhold should be no higher than "preponderance" and perhaps should be merely a "substantial evidence" burden, at least if the charges are of dishonesty or other core qualifications.
(5) Attorney-client privilege and the duty of confidentiality are shields and filters that prevent judicial discipliary officials from learning the truth about the dishonesty or other unfitness of a judge. If we truly regard public confidence in our judicial system as our highest priority (as it should be), then we must not impose shields or filters that prevent judicial disciplinary officials from gleaning the truth about a judge's alleged dishonesty or other unfitness. If a judge fears criminal or civil liability, s/he should resign judicial office and rely on those truth shields and filters to protect his/her liberty and financial interests. But those shields and filters should not let him/her continue to judge (and sometimes destroy and devastate) people when in truth the judge is unfit for office.
(6) Examples: In the case of the "Cadillac-kickback" judge who I reported, his ex-wife declared by affidavit and later testified, both being reported in newspapers, that he told her the Cadillac was a "commission" for what was a fraudulent probate estate transaction. If the judge's defense counsel had sucessfully claimed spousal privilege, the adjudicating panel would have been denied that evidence, but it still was in the public domain, so the public believed the judge was corrupt. In the Orange County case against Judge Kline, evidence of the judge's computer pornography collection may be suppressed in his criminal trial (and if the Rules of Evidence govern his judicial disciplinary proceeding, suppressed there as well), but the general public has no doubt about the truth of his possession of that pornography collection base on the sworn affidavits of prosecutors who
seized the judge's computers.(7) To those defenders of accused judges and those who support high burdens of proof, I suggest you consider boarding a plane whose pilot is alleged, with substantial credible evidence (though not yet adjudicated), to be psychologically impaired or otherwise unfit, or having major surgery (with your consent not being needed) by a surgeon whose fitness has been challenged by substantial credible evidence (though not yet adjudicated).
(8) There's a huge difference between (a) retaining one's liberty and property and (b) retaining the power to sit in judgement (and lawfully to kill or devastate the lives) of trusting folks. Remember that judges, by their decisions, truly do destroy people (taking their lives, their children, and their property -- what's left).
I didn't just start thinking about his yesterday. See: http://www.DougSchafer.com/CJC_ltrs.htm and particularly my Memo of 6/5/98 to my state's Judicial Conduct Commission members on these and other subjects, at: http://www.DougSchafer.com/CJC_memo.htm
I urge you all to start thinking about these issues. This stuff is actually kinda important.
Doug Schafer, solo lawyer in Tacoma, Washington.
http://www.DougSchafer.com
_______________________________________________
LegalEthics mailing list