Chilling Effect For Accusations Of Judicial Misconduct
A significant decision of the Louisiana Supreme Court orders a year and day suspension with all but six months stayed for an attorney’s criticism of a judge.
The attorney had sought recusal of the judge on one family law matter
The motion alleged three grounds for recusal: (1) Judge Keaty failed to fully disclose the extent of the relationship between herself and her family and Ms. Coussan and her family; (2) Judge Keaty indicated that she would not follow the law regardless of the evidence presented at trial [relating to the use of Worksheet “B” in shared custody arrangements]; and (3) the manner in which the case had been handled, the rulings made, and the deference given to Ms. Coussan over Mr. Hunter all manifested a bias or prejudice toward Ms. Coussan.
When things went badly for the client in a separate matter, a writ was filed by the attorney with the Supreme Court that had this language about Judge Keaty and other appellate judges
This case personifies the double edged sword of Justice. This case highlights the unfavorable consequences of the legal profession – incompetence and/or corruption of its members. Undeniably, the people who are elected to uphold the higher purpose of the law sometimes go their own way and believe that the people’s vested power is their own. The general public assumes that the vast majority of our legal community believes that no one does more harm to the legal system than one who has the name and rank of honor while he/she acts perversely. Unfortunately, this case also exemplifies an additional and more horrifying issue – the tolerance and indifference of other judges, the Court of Appeals and other officers of the court who did nothing to help the financial and emotional pain of family law litigants and the most innocent of all victims – Stanford McNabb’s children. [Emphasis in original.] * * * The corruption and/or incompetence of attorneys and judges in this case is not only a systemic problem; it is an opportunity for reparation for Stanford McNabb and everyone who was victimized by a system designed to protect their rights. … * * * Stanford McNabb drives past Judge Phyllis M. Keaty’s billboards and signs which advertise her desire to be the next member of the lower court which recently issued a decision contrary to the panels’ [sic] statements at oral argument, the record, and the law. … Although the lower court which affirmed the egregious actions of the trial court is the same court Judge Keaty is actively campaigning to sit upon, Stan did not presume wrongdoing. Rather, Stan presumed that the lower court’s opinion was a mistake since it was contrary to the panels’ [sic] statements at oral argument. However, when the rehearing was denied, a mistake became difficult to defend. This Honorable Court should consider this case from the vantage point of a litigant or outside third party. There are two plausible explanations: 1.) The lower court inadvertently issued an opinion written prior to oral argument. When Stan gently alerted them to the fact that the Motion and Order of Recusal was part of the record, the panel was confused and/or did not remember the oral argument of the matter and therefore again inadvertently denied rehearing; or 2.) The lower court wants to cover up the egregious actions of the trial court so it cannot be used in the current election. Either way this Court’s active intolerance of such incompetence and/or corruption is essential to restore integrity to the judicial system. …
The court majority
…we find respondent’s actions violate Rule 8.2(a). Specifically, we conclude the objective evidence establishes respondent either knew her statements were false or made them with reckless disregard for the truth.
Respondent relies heavily on the purportedly corrupted audio tape from the Hunter hearing as providing support for her assertions of incompetence and corruption of the legal profession. We acknowledge there is evidence in the record of these disciplinary proceedings indicating that the court reporter’s tapes may have been spliced as a result of a malfunction of the court reporter’s machine. However, we see no evidentiary support for respondent’s implication that Judge Keaty or any person, either through incompetence or corrupt intent, added substantive statements to the official transcript which were not contained in the original hearing. Ordinary experience suggests that equipment can often malfunction without any underlying incompetence or intentional corruption. Thus, in the absence of any objective supporting evidence, respondent acted with a reckless disregard for the truth when she referred to “incompetence and/or corruption” of the members of the legal profession in pleadings filed in this court.
Even more disturbing is respondent’s statement that the court of appeal “wants to cover up the egregious actions of the trial court so it cannot be used in the current election.” Through the testimony of the judges of the court of appeal panel, the ODC proved this statement was objectively false. Respondent points to no evidentiary support whatsoever for her contention that the judges of the court of appeal intentionally altered their judgment to protect Judge Keaty. Regardless of the genuineness of respondent’s belief, the objective facts in the record support the conclusion this statement was made with either knowledge of its falsity or reckless disregard for the truth.
Justice Weimer dissented and would find no ethics violations, making powerful arguments on the importance of First Amendment rights for attorneys asserting claims of judicial corruption
I respectfully dissent. In this matter, we are called on to evaluate the rights guaranteed to this attorney pursuant to the First Amendment to the United States Constitution1 and Article 1, § 7 of the Louisiana Constitution entitled “Freedom of Expression” to engage in speech regarding public officials who serve as judges. In evaluating the rights afforded this attorney to freely engage in speech, we are not required to believe the allegations lodged about the judges or question the integrity of these judges. In dissenting, I do not question the integrity of these judges. However, we are required to evaluate the totality of the facts in this record to determine if there is an objective factual basis for the attorney to have made the allegations. In performing this evaluation, we must not create an environment in which an attorney, who is duty-bound to report concern about our judicial system, will become too timid in lodging a concern due to fear of being disciplined.
In the family law matter, the respondent is charged with breaching the Rules of Professional Conduct for filing a writ application in this court that allegedly contained “offensive and inaccurate criticism of four members of the Louisiana Judiciary,” i.e., a district court judge and three members of an appellate court panel. Although respondent is charged with misconduct in connection with a bankruptcy matter for which the majority devotes a paragraph of discussion, it is apparent from the majority’s opinion that the respondent’s efforts to recuse Judge Keaty from handling Mr. Hunter’s case, as well as respondent’s criticisms in the writ application filed in this court on behalf of another client, Mr. McNabb, are the majority’s greatest concern. The majority refers to the recusal efforts and the writ application criticisms as “the Keaty matter,” based on the name of the district court judge, though appellate court judges were also criticized in the writ application. For simplicity, I will also refer to these aspects of this disciplinary case as “the Keaty matter.”
In this fact-intensive case, the majority has failed to account for some key evidence in the Keaty matter. Part of respondent’s defense against the charge that she filed an unfounded motion to recuse Judge Keaty from Mr. Hunter’s case included pointing out that Keaty Real Estate had contracted to sell separate property of Mrs. Hunter that was the subject of a pending community property reimbursement claim. Judge Keaty’s Personal Financial Disclosure Form revealed that the Judge has an interest in Keaty Real Estate of Colorado, which has the same address as Keaty Real Estate. Ultimately, another judge ordered Judge Keaty recused from the Hunter matter “due to a “community interest.’” This evidence regarding a potential connection between Keaty Real Estate business interests and Mrs. Hunter was unrefuted. Evidence did indicate Judge Keaty amended her financial disclosure form.
The majority also turns to “[o]rdinary experience” to explain that the respondent should not have suspected anything nefarious regarding the audio recording of Judge Keaty’s explanatory statement of her relationship with Mrs. Hunter’s family. In re: Mire, 15-1453, slip op’n at 20-21 (La. ___/___/16). However, in resorting to “[o]rdinary experience,” the majority again overlooks unrefuted evidence specific to this case. The recording was not simply spliced, as the majority suggests, but material was added in a recording format that was not available with the court’s recording software.
Thus
To recap, in the Keaty matter, I find that respondent was at times unprofessional, by acting contrary to what lawyers should and should not do, but respondent did not transgress a sanctionable Rule of Professional Conduct. Finding the bankruptcy court’s sanction adequately serves the goals of the lawyer disciplinary system in making the client whole again and deterring future misconduct, and considering the other mitigating factors, I would sanction respondent no further.
And Justice Hughes
Alteration of the transcript of a recorded judicial proceeding is a serious, perhaps criminal, matter. This court does justice no favor by punishing the whistle-blower. As pointed out by Justice Weimer, the majority manages to avoid the hard evidence that the alteration in this case was no accident or “malfunction”. I concur with Justice Weimer’s dissent.
Justice Guidry would impose a lesser sanction.
I would call Rule 8.2 my least favorite rule. My views are expressed in this blog post about an attorney prosecuted for accusing a probate court of corruption in Illinois. (Mike Frisch)