Woe Unto the Lawyer Who Follows the Rules When Courtroom Reality Dictates Otherwise

According to the ABA Model Rules of Professional Conduct, Rule 8.3(b), “A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.” [1]

In 1998, a federal judge, unidentifed by Richard Baldwin Cook in his new book, May It Plea$e the Court [2], was charged with misconduct in a confidential complaint filed by Cook with that district court's Judicial Council.

In his complaint, Cook pointed out that: i) a lawyer currently pleading a case in the subject judge's court was the judge's former law partner, ii) as President of a local bar association, that same lawyer was instrumental in having the association grant the judge $4,500 to travel to Italy to address that association's meeting, iii) other attorneys from the judge's former law firm had also plead cases in his court, iv) over objections of opposing counsel, another attorney from the judge's former law firm was improperly permitted to amend a complaint without a required hearing, leading to a favorable settlement that netted the firm's lawyers about $1 million, and v) the subject judge was at least part owner of the building occupied by his former law firm, which paid him rent.

In addition, the judge's former law firm had lobbied vigorously for appointment of the judge, who after being elevated to the bench chose a former law partner as magistrate.  The judge's former law firm also allegedly continued the payout of benefits that extended into the judge's tenure on the bench.

Cook's complaint of judicial misconduct was never investigated.

Cook, who at the time was representing about 100 poor female prison inmates alleging physical and sexual abuse at the hands of their prison guards, sought the recusal of the subject judge, in whose court their case was also being plead.  To Cook's chagrin, the judge had made known his displeasure with the case and had taken steps to hinder the proceedings.

Unwilling to acknowledge misconduct, the judge would not withdraw from the case.

Neverless, Cook persisted in seeking recusal of the judge and made many failed attempts to depose witnesses and obtain records that could substantiate the claims he made in his complaint against the judge.  But the confidentially of the complaint had been breached, and Cook's fate was now sealed.

With the judicial tables turned against him, formal charges were filed against Cook with the Judicial Council's Office of Disciplinary Council, inter alia for engaging in conduct prejudicial to the administration of justice.

In the end, Cook's prison inmate clients were left without representation and Cook was disciplined with a $7,500 fine and a three-year suspension of his law license, which could only be restored if he would provide an apology for his conduct and a declaration not to engage in similar actions in the future.  Such terms were unacceptable to the principled lawyer who was fed-up with what he characterized as judicial tyranny.

The dilemma faced by Cook and other conscientious attorneys is that charges of judicial misconduct are not investigated by an independent authority, but are reviewed by other judges who are colleagues of the subject judge and who may harbor reasons to protect the judge or excuse his or her behavior.  The same is true of the Disciplinary Council, whose attorney members may belong to the same law firm as a lawyer who has been implicated in the misconduct.

As a result of his experience, Cook proposes that anyone who aspires to the bench should be required to take an oath never to give money or a gift or any item of value to a judge, and if elevated to the bench they will neither accept money or a gift or any item of value from any person or organization.

However, history is replete with examples that oaths, like unenforceable canons of conduct, are unlikely to succeed where judges are determined to be dishonest.

Judicial integrity is more likely to be attained if complaints of misconduct are administered by an inspector general's office that is completely independent of the judiciary and operates in conjunction with citizen grand juries to investigate substantive charges against judges — and protects attorneys who blow the whistle on miscreant judges.  Absent an effective means of holding judges accountable for their actions, we all face eventual subjugation by an increasingly autocratic branch of government.

As Thomas Jefferson warned:

“The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step, and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them.” [3]
________ and ________
“The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet, ... Having found, from experience, that impeachment is an impracticable thing, a mere scare-crow, they consider themselves secure for life; ...” [4]

Carl Bernofsky
Shreveport, Louisiana
December 12, 2008

  1. American Bar Association, Model Rules of Professional Conduct, "Rule 8.3 - Reporting Professional Misconduct," http://www.abanet.org/cpr/mrpc/rule_8_3.html, accessed 12/10/08.

  2. Richard Baldwin Cook, May It Plea$e The Court, Nativabooks.com, Nativa LLC, Cockeysville, MD, 2009, 192 pp.

  3. Thomas Jefferson, Letter to Judge Spencer Roane, March 9, 1821.  The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnamís Sons, 1904-5). Vol 12, Chapter: TO JUDGE SPENCER ROANE.  From: The Online Library of Liberty, http://oll.libertyfund.org/title/808/88417, accessed 07/04/08.

  4. Thomas Jefferson, Letter to Thomas Ritchie, December 25, 1820.  The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnamís Sons, 1904-5). Vol 12, Chapter: TO THOMAS RITCHIE.  From: The Online Library of Liberty, http://oll.libertyfund.org/title/808/88407, accessed 07/04/08.

The author thanks Richard Baldwin Cook for an advance copy of his book, and John Cavicchi for the references to Thomas Jefferson's letters.