Jackson Knew Better
I am Mauricio R. Hernandez or “Mo” for short. My late mother would be unhappy with that dimunition. 22 years of corporate management life for a Fortune 50 company finally led me to life as a solo lawyer toiling in the various vineyards of civil practice first as a rural lawyer and now working in America’s 6th largest city. Generally, I try to look out for the proverbial “little guy or gal.” And I do this on behalf of plaintiffs, notwithstanding how a probono lawyer once admonished I “needed to atone for my [presumed] past sins” given my career for the multinational corporation. I bought her lunch that day. But like most do-gooders, she gave little thought to whether or not she ought to gnaw the hand holding the billfold and the lunch check.
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LEGALESE:
The information on this blog is opinion and not legal advice. Consequently, an attorney-client relationship is not created as my ruminations on law and life are not intended to constitute legal advice. Before acting on any information in this website, you should contact an attorney licensed to practice in your state. Mauricio R. Hernandez is an attorney licensed to practice in Nevada and Arizona.
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Please see the testimony provided to the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security at:
http://www.c-spanvideo.org/program/id/224955
Guest Editorial by Jerry Greene, in response to David Johnson’s Dec. 2009 TCL article; Bench and Bar Relations: A Necessary Dialogue.
I recently read CBA president Dave Johnson’s bench and bar relations message to CBA members, and a couple of his statements caught my eye, e.g.:
a. “…informed criticism of the courts and their decisions is not merely a right, but also an ethical obligation imposed on every member of the bar.”
b. “I regularly received complaints from attorneys about the failure of the Family Law Section or the CBA to deal with judges who were inefficient or incompetent … I would suggest that the attorney contact his or her local bar association officers and request that a meeting be arranged with the judge or chief judge and several members of the Bar to discuss the matters of concern.”
Taking Johnson’s words at heart I contacted my local bar to report some court decisions that I considered incompetent or worse. My local bar (Boulder, BCBA) told me my allegations were serious but that they only take on “small” complaints, and that, in contrast to Johnson’s statement, they don’t set up meetings with the chief to discuss matters of concern. I contacted Johnson about the issue but he wouldn’t comment on whether my allegations were serious, which seems an odd contrast with the stance in his article and CBA’s commitment to candor and integrity. I suggested he confirm my allegations with the chief of my district but he apparently didn’t want to do that either.
He told me that ‘a chief judge (or the bar) would have no authority to act on violations of the judicial canons’. This provides an interesting contrast with Canon 3(B)(3) “A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.” It likewise conflicts with CRCP 251.4:
A judge has a duty to report unprofessional conduct by an attorney to Regulation Counsel pursuant to Canon 3(B)(3) of the Colorado Code of Judicial Conduct… A most sacred duty is to maintain the integrity of the law profession by disciplining lawyers who indulge in practices which are designed to perpetrate a fraud on the courts. People v. Radinsky, 176 Colo. 357, 490 P.2d 951.
Johnson’s statement and the BCBA standard that they don’t get involved regarding violations of the Code of Judicial Conduct or the Rules of Professional Conduct are also in gross conflict with the ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS, in relevant part:
It cannot be emphasized strongly enough that lawyers and judges must report unethical conduct to the appropriate disciplinary agency. Failure to render such reports is a disservice to the public and the legal profession.
In sum it seems that if a lawyer reports improper performance the Bar will step in and discuss the issues with the Chief and/or initiate an investigation as would be required under Rule 8.3 or the ABA standard. On the other hand if a non-lawyer makes a complaint all the high principled language in Johnson’s article evaporates into, “We don’t know and we don’t want to know. Take your complaint elsewhere.” I would encourage the Bar associations to deal with complaints on merit; not whether the person has a law degree. All the rules are available on-line these days. Its not that hard to tell when a judge or lawyer is lying or breaking the rules.
Here are some of the issues I have presented, all undisputed even by the Chief of my district:
a. Judge lying in written orders and in court.
b. Judge yelling at and interrupting litigants.
c. Judge illegally restricting parenting as punishment for not following court orders.
d. Judge illegally denying cross examination of an expert witness (CFI).
e. Judge issuing orders without allowing a party to respond or present an argument.
f. Judge ordering a one year old child to be woken up to make a 6am transfer between his parents 7 days a week.
As Johnson commented there are regular complaints about the failure to deal with incompetent judges in family court, e.g the Judicial Discipline Commission apparently hasn’t disciplined a single judge for improper family court performance in the last 10 years if ever, i.e. as apparent in this questioning letter and opaque memo from the JDC:
http://knowyourcourts.com/JDC/docs/2009-07-22_reply.pdf
http://knowyourcourts.com/JDC/docs/2009-08-03_memo-fromJDC.pdf
I agree with Johnson’s statement that lawyers have an obligation to criticize and seek solutions for incompetent court decisions. In contrast if the CBA and the local Bars are unwilling to discuss such serious allegations with the Chief of the district not only will the courts not learn from their mistakes, but it makes it look like the Bar has no concern over these actions as well as ignoring its legal duty under Rule 8.3.
From Rule 8.3: “Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct.”
One solution I have proposed to temper the lack of checks an balances in family court (no jury) compared to civil/criminal is that a chief judge must respond directly to any canon violation allegation in a domestic case. The Chief, with ready access to the record and the judge in question, is in the best position to confirm or deny any canon violation and to take measures to correct it. I invite the Family Law Section to consider whether they are comfortable with domestic cases having substantially less checks and balances than civil and criminal, and what measures they propose to rectify this imbalance.
I also invite the CBA to consider whether a Chief Judge remaining opaque about Canon violations by judges in his/her district constitutes a Canon violation in and of itself, e.g. I sent my Chief (Roxanne Bailin) a list of Canon violations from the record in my case but, similar to the JDC, she seems to have adopted a personal policy of “I don’t answer any question I don’t feel like.”, which puts her non-compliant with Canon 3(B)(3) and CRCP 251.4 as well as noncompliant with:
a. From Sec.23 of the Colorado Constitution (Hamm v. Scott):
All of the justices and judges of the judicial department are accountable to the people. Hamm v. Scott, 426 F. Supp. 950 (D. Colo. 1977).
b. From CANON 2: A judge should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on his or her conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
In sum if judges, lawyers, and the Bar don’t step in and exercise their ethical and legal obligation to report and correct misconduct and incompetence by other judges and lawyers, innocent families (and their children) who have fallen through the looking glass into the autocratic world of family court will continue to pay the price. I commend Johnson for starting the conversation that lawyers need to criticize when the courts fail. I’d like to see his words put into action by lawyers of the CBA and the local bars, or to quote from the CBA Principles of Professionalism:
A lawyer owes to the public a devotion to the public good and to public service; a commitment to the improvement of the administration of justice; a duty to abide by and report violations by others of any disciplinary rules.
Or as recently quoted in knowyourcourts.com: “The problem is not that too many lawyers are publicly criticizing judges. Unfortunately, too few lawyers are willing to do so, even when a judge has committed serious ethical violations and should be held accountable.” Monroe H. Freedman, The Threat to Judicial Independence by Criticism of Judges: A Proposed Solution to the Real Problem, 25 Hofstra L. Rev. 729, 729 (1997).
Gardnerville? Minden?
That’s a picture of Jobs Peak on the top of your Blog.
You either work for Starbucks or left your large corporation for little Nevada… (although not as little as when I used to live there)
Nice…
Hi Jake!
Good eye. It is indeed Job’s Peak. Took the photo myself. But the only Starbucks in my past life in Carson Valley was a triple tall non-fat latte! My corporate experiences pre-dated NV.
Thanks for commenting.
– Mo
I love that your Legalese section is almost as long as your About. Is that a lawyer thing? :) Thanks for dropping by “Honey.”
Yes it is! We operate under all these rules. Many thanks for your remarks and for visiting!
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Just want to add a postscript to the Case of Bertram Brown. He also has a wife that he has abandoned but refuses to divorce. Divorce is being held up by lack of mailing address for him. Anyone got any help on this.