Category Archives: Judicial ethics

Tennessee judge is reprimanded for “liking” and “sharing” Facebook posts and articles on divisive social issues

Hello everyone and welcome to this Ethics Alert, which will discuss a recent reprimand of a Tennessee judge for “liking” and “sharing” Facebook posts on divisive social issues.  The case is Tennessee Board of Judicial Conduct Complaints No. B19-7753 & B19-7777 (Nov. 15, 2019) and the November 15, 2019 reprimand is here:  https://media.myfoxmemphiscom.cmgdigital.com/document_dev/2019/11/18/lammey%20reprimand%20letter_16841943_ver1.0.pdf

According to the reprimand letter, among other allegations, the judge shared an article on Facebook by a holocaust denier that stated that some people needed to “get the f*** over the Holocaust” as “an interesting read” (although the letter states that he was found not to be a “holocaust denier”).  The judge also “shared” images on Facebook which reflected “a strong position on professional athletes kneeling during the national anthem”; opposed support for Hillary Clinton and the black lives matter movement; expressed a position on “anti-Jihadist sentiment,” and reflected a “bias in favor of then-presidential candidate Donald Trump.”

The reprimand states that the board found no proof that the judge showed “actual bias, prejudice toward any litigant who appeared before him or that he made “anti-Semitic, racist, or anti-immigration” statements; however, it did find that his “likes” and “shares” were “partisan in nature” and, as a result, the judge’s conduct had the “appearance of impropriety,” reflected adversely on his “impartiality and temperament” and could “reasonably be perceived as prejudiced or biased.” (citing judicial canons).

The judge accepted the public reprimand and, as a condition, he agreed to “refrain from making any future comments or disseminate any substantially similar social media posts on any social media platform that may be reasonably be perceived as prejudiced or biased,” make his social media platforms “private”, and complete a judicial ethics program approved by the Board.

Bottom line:  This is another interesting example of a social media presence gone awry.  Although this judge never made any comments regarding the articles that he “shared” or “liked”, he was found to have violated the Tennessee Canons of Judicial Conduct and reprimanded.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under Judge discipline Facebook posts, Judge discipline social media likes and shares, Judicial discipline social media ethics, Judicial ethics, Judicial Ethics Facebook and LinkedIn, Uncategorized

ABA formal ethics opinion provides guidance for recusal of judge because of a personal relationship

Hello everyone and welcome to this Ethics Alert, which will discuss ABA Formal Opinion 488, which provides guidance on a judge’s obligation to recuse because of a social or close personal relationship with a lawyer or party.  ABA Formal Opinion 488 is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_488.pdf

According to the opinion, which was released on September 5, 2019, a judge is not required to automatically recuse or be disqualified if a lawyer or party in a matter before the judge is an acquaintance or friend; however, recusal or disqualification is necessary when the judge is in a close personal relationship with a lawyer or party in a matter.

Formal Opinion 488 interprets the Model Code of Judicial Conduct Rule 2.11, which requires judges to identify situations where their impartiality might reasonably be questioned—an age-old and fluid determination, beyond the specific provisions in Rule 2.11(A)(1)-(6).  The opinion states “that relationships vary widely, potentially change over time, and are unique to the people involved.” As such, the opinion trifurcates judge’s social interactions and relationships into (1) acquaintanceships; (2) friendships; and (3) close personal relationships.

Rule 2.11(A)(1) addresses the standard of when “impartiality might reasonably be questioned.” In addition, Rule 2.11(A)(2) specifies situations where “the judge knows that the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is:

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

The opinion notes that a judge must recuse or be disqualified when the judge has or pursues a romantic relationship with a lawyer or party in a matter; however, other “close personal relationships” (such as amicably divorced individuals who maintain joint custody), require that the judge follow Rule 2.11(C), which permits disclosure and waiver of the recusal.

Under Rule 2.11(C), a judge subject to disqualification because of a friendship or close personal relationship may disclose on the record the basis of the potential disqualification and ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive the disqualification.  If the parties and lawyers agree after the disclosure (and without participation by the judge or court personnel), that the judge should not be disqualified, the judge may participate in the proceeding. The stipulation must be incorporated into the record of the proceeding.

The opinion states that a close personal relationship is covered by Rule 2.11(A)(2) and requires disqualification, but acquaintances do not.  Further, whether friendships should result in disclosure and recusal depends on the specific facts. The opinion does not address social media (such as Facebook “friendships”) and states that interaction on social media does not itself indicate the type of relationship participants have with one another either generally or for purposes of the opinion.

Bottom line:  This opinion provides guidelines for judges (and lawyers) on a judge’s obligation to recuse (or be subject to disqualification) because of a social or close personal relationship with a  lawyer or party.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under ABA formal opinions, ABA opinion 488 recusal of judge because of personal relationship, joe corsmeier, Joseph Corsmeier, Judicial ethics, Uncategorized

Wisconsin appellate court finds judge’s Facebook friendship with child custody litigant created “great risk of actual bias”

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Florida Supreme Court hears oral argument in case where judge found that Facebook “friendship” with lawyer was not disqualifying

Hello everyone and welcome to this Ethics Alert update which will discuss the recent oral argument which was held by the Florida Supreme Court in a matter wherein a Miami-Dade County Circuit Judge denied a motion to disqualify a lawyer who was a “friend” on the judge on Facebook and the Third District Court of Appeal upheld the lower court’s order.  The case is Law Offices of Herssein and Herssein, P.A. d/b/a Herssein Law Group and Reuven T. Herssein v. United Services Automobile Association, Case No.: 2015-015825-CA-43 (Florida Supreme Court Case No. SC17-1848).

The law firm filed a petition with the Florida Supreme Court to stay the proceedings and invoke the Court’s discretionary jurisdiction.  The Court accepted jurisdiction and ordered a stay and oral argument was held on June 7, 2018   The video of the oral argument is here:  https://wfsu.org/gavel2gavel/viewcase.php?eid=2490

As I previously blogged, the Circuit Judge held that she was not required to recuse herself from a case in which she was a Facebook “friend” of the lawyer for one of the witnesses/potential parties.  That lawyer was also a former judge with whom the judge worked before he resigned as a circuit judge.  The decision appeared to depart from a previous 4th DCA opinion and an opinion of the Florida Judicial Ethics Advisory Committee (JEAC).

The Herssein law firm appealed to the Third DCA, which denied the appeal and stated:

“…we hold that the mere fact that a judge is a Facebook “friend” with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook “friend.” On this point we respectfully acknowledge we are in conflict with the opinion of our sister court in Domville.”

The Herssein law firm then requested that the Florida Supreme Court invoke its discretionary jurisdiction to review the decision under Article V, § 3(b)(4), Fla. Const., and Rule 9.030(a)(2)(A)(iii) and (iv) and, in support of the request, stated:  “The decision expressly and directly affects a class of constitutional or state officers; all V judges in Florida, and the decision expressly and directly conflicts with the decision of another district court of appeal on the same question of law.”

During the oral argument on June 7, 2018, the justices expressed divergent views regarding whether a “Facebook” friendship should trigger the disqualification of judges and also noted there was no record of the extent of the trial judge’s Facebook presence in this matter, including the number of friends, how often and what type of information was posted, and any communications between the lawyer and the judge.  Many of the justices also said they do not use Facebook, and some stated that this was to avoid the questions that are being raised in this case.

According to an article in the July 1, 2018 Florida Bar News, Justice Allan Lawson stated that Facebook friendship is “a spectrum that runs from close friendship, but runs further to someone you don’t recognize on the street or might not know…I’m having a hard time wrapping my mind around the argument that…I have no connection with this person, (and that) would somehow result in recusal or disqualification.”  Justice Peggy Quince noted that the problem is “where would you draw the line” regarding the type of friendship that would require a recusal.

Bottom line:  As I have said in my previous blogs, the circuit judge’s order and the 3rd DCA opinion appear to be contrary to the 2009 JEAC opinion and the 2012 4th  DCA opinion and the opinion acknowledges that it is in conflict; however, it does provide the rationale that each case should be decided by examining the facts and the relationship.  This would seem to create potential confusion and disqualification motions which would then have to be decided on a case by case basis.  The Florida Supreme Court may now decide whether to there will be a case by case analysis or a bright line rule.

I would again point out that it would be prudent for judges and lawyers who may appear before judges to consider not being “friends” or otherwise have a connection on social media or, if they are already connected in a case, to immediately remove the connection, disclose it to all parties, and the judge could possibly provide an option to recuse if a party believes that there may be potential prejudice.

Be careful out there.

Disclaimer:  this Ethics Alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Referee recommends that former Florida judge who accepted Tampa Bay Rays tickets be suspended for 90 days and placed on probation

Hello everyone and welcome to this Ethics Alert which will discuss the recent Report of Referee which recommends that former Lee County Judge John Lakin, who was alleged to have improperly accepted tickets to Tampa Bay Rays baseball games, be suspended from practice for 90 days and be placed on probation for one year.  The case is The Florida Bar v. John Francis Lakin, SC17-542.  The June 25, 2018 Report of the Referee is here: https://www.documentcloud.org/documents/4564632-Referee-Report-Lakin.html

The Judicial Qualification Commission charged the judge with misconduct in 2016 alleging, inter alia, that he had requested and received Tampa Bay Rays tickets from a law firm in 2015 while presiding over a pending case in which the law firm represented one of the parties.  A jury ruled in favor of opposing party; however, the judge subsequently reversed that verdict in favor of the law firm’s client.  Five of the tickets that the judge received were given to him the day before he reversed the jury verdict.  The judge denied that the receipt of the tickets influenced his actions and later retired from the bench and went into private practice.

The Florida Bar filed a Complaint in March 2017 alleging that the lawyer violated Bar Rules related to dishonesty, deceitfulness, misrepresentation and/or fraud.  The referee assigned to hear the Bar matter recommended that the former judge’s law license be suspended for 90 days, and that he be placed on supervised probation one year, complete the Bar’s practice and professionalism enhancement program, “speak to new judges” about the circumstances, and pay the Bar’s costs of $5,244.00.

Under the Florida Bar rules, the referee’s report will now be reviewed by the Florida Supreme Court, which will render a final disciplinary opinion.  The judge and The Florida Bar can file a petition with the Court to review the findings and file briefs.

Bottom line:  This former judge accepted tickets from lawyers who were representing a party before him on a pending case and, soon after receiving the tickets, made a ruling which favored that law firm’s clients.   Even if the tickets did not influence the judge’s decision, the circumstances would certainly seem to create an appearance of impropriety and an arguable violation of the Judicial Canons.  The referee has now recommended that the judge be found guilty of Florida Bar Rule violations and suspended from practicing law for 90 days.  The Florida Supreme Court will now decide whether the referee’s findings will be upheld.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Pennsylvania Supreme Court disbars ex-judge who pled guilty to stealing cocaine held in court cases

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Pennsylvania Supreme Court opinion disbarring a former judge who pled guilty to stealing cocaine, from an evidence locker in his courtroom for his own personal use for more than a year.  The case is Office of Disciplinary Counsel v. Paul Michael Pozonsky (Case No. 123 DB 2015) (opinion issued January 18, 2018).  The opinion is here: http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/123db2015-pozonsky.pdf#search=%22Paul Pozonsky%22.

According to the disciplinary opinion, “the judge . . . presided over criminal trials, juvenile delinquency hearings, and also directed the rehabilitative disposition of drug offenders in that county’s Drug Court, which he founded. Using his position as a jurist, he directed police officers and court personnel to bring cocaine, which was evidence in the cases over which he was presiding, to an evidence locker in his courtroom; whereupon, for over a year, he stole quantities of this illegal drug from that locker and used it for his own recreational purposes, all while continuing to preside over criminal prosecutions and imposing sentences on defendants for committing crimes which he himself was contemporaneously engaging in.”

“After Pozonsky’s illicit activities were discovered, he resigned his judicial commission and was convicted for his crimes. After considering all the relevant facts and circumstances surrounding Pozonsky’s egregious misconduct while a commissioned judge, and taking into account the mitigating evidence he offered, the Disciplinary Board of the Supreme Court of Pennsylvania (“Disciplinary Board” or “Board”) issued a unanimous report detailing its factual findings and its recommendation that he be disbarred.”

The opinion further stated that “(t)here are few transgressions which more seriously undermine the public’s confidence and trust in the integrity of their judicial system, and which are as offensive to the high standards and principles which other members of the bench and bar strive so faithfully to uphold in the performance of their duties, than those committed by Pozonsky.”

The ex-judge pled guilty in 2015 to charges related to the theft of the cocaine, including misdemeanor theft, obstruction of justice, and misapplication of entrusted property and served one month in jail.

Oral arguments were held in April 2017 and the ex-judge stated in mitigation that he had accepted full responsibility for his conduct and engaged in community service, including working at a homeless mission and counseling others with addiction as mitigating factors in an effort to reduce the disciplinary sanction.  The court rejected the ex-judge’s argument that his addiction should be considered as a mitigating factor.

The disciplinary opinion concluded: “Because the evidence of record amply supports the Board’s findings and corresponding recommendation of disbarment, we order Pozonsky’s disbarment to both protect the public and to preserve the integrity of the legal profession.”

Bottom line:  This is an extremely egregious case of an apparently addicted judge who asked law enforcement to bring cocaine to his courtroom to “hold” in criminal cases (not sure how that would happen) and then stole the cocaine from the locker and used it for “his own recreational; purposes.”  A concurring opinion stated that disbarment was not automatic and mused that it was ironic that the ex-judge was not able to mitigate the disbarment by showing that he was addicted but agreed that disbarment was appropriate.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Herssein law firm files emergency motion with Florida Supreme Court to quash 3rd DCA opinion and order claiming violation of stay

Hello everyone and welcome to this Ethics Alert update which will discuss the recent (December 13, 2017) Motion to Quash filed by the Herssein law firm in the Florida Supreme Court proceeding challenging a Miami-Dade County Circuit Judge’s denial of a motion to disqualify a lawyer who was a former judge and “friend” of the judge on Facebook.  The case is Law Offices of Herssein and Herssein, P.A. d/b/a Herssein Law Group and Reuven T. Herssein v. United Services Automobile Association, Case No.: 2015-015825-CA-43 (Florida Supreme Court Case No. SC17-1848).  The Herssein law firm’s Motion to Quash is here: https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_motion_115391_motion2dother20substantive.pdf.

The law firm filed an emergency motion on December 13, 2017 asking the Florida Supreme Court to quash a December 13, 2017 3rd DCA opinion quashing two discovery orders and an order granting fees to USAA, claiming that the opinion and order violated the Supreme Court’s Stay Order dated December 7, 2017.

As I previously blogged, the Herssein law firm moved to disqualify the judge from a contract dispute against their client, the United States Automobile Association (USAA) in which a lawyer who represented a non-party USAA employee in the matter was identified as a potential witness/party.  The law firm argued that the judge could not be impartial in the case and cited JEAC Op. 2009-20 (Nov.17, 2009), which states: “Listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  In 2012, the 4th DCA relied on the JEAC opinion in disqualifying a judge from a case for being Facebook friends with the criminal prosecutor. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

Circuit Judge Beatrice Butchko found that she was not required to recuse herself from the case and the Herssein firm asked the Florida Supreme Court to invoke its discretionary jurisdiction to review the decision under Article V, § 3(b)(4), Fla. Const., and Rule 9.030(a)(2)(A)(iii) and (iv).  In a December 7, 2017 Order, the Court issued a stay of the lower court proceedings and, in an Order dated December 11, 2017, accepted jurisdiction and provided a briefing schedule.

Bottom line:  In a strange turn of events, the law firm has filed a motion claiming that the 3rd DCA rendered an opinion and order which violate the Florida Supreme Court’s stay of the lower court proceedings and asking the Supreme Court to quash the opinion and order.

Stay tuned…and be careful out there.

Disclaimer:  this Ethics Alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under Florida Bar, Florida judge ethics, Florida Judicial Canons, Florida Judicial Ethics Opinions judges connecting on Facebook and LinkedIn, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Judge disqualification- Facebook friends with lawyer, Judges and lawyer friends on Facebook, Judicial ethics, Judicial Ethics Facebook and LinkedIn, Lawyer and Judge Friends on Facebook Motion to Disqualify Judge, Lawyer ethics Facebook, Lawyers and social media, Uncategorized

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