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Entries beginning with a number are a continuation of the old Judging Crimes blog, which was long focused on the two meanings of its name: the way crimes are judged in America, and the, uh... occasional defalcations and derelictions of the berobed.

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Sunday
May202007

272. Ethical lobotomy

Is it more important to have a good reputation or to deserve one?  Florida's Judicial Qualification Commission doesn't find that a difficult question to answer.   Obviously, the important thing is to preserve the reputation.  Asking whether it's deserved is unethical.

Here's a news story describing the Commission's recent decision to go after First District Court of Appeals Judge Michael E. Allen.  Howard Bashman of HowAppealing devotes a typically thoughtful Law.com column to showing some of the way in which the complaint against Judge Allen is "outrageous ... laughable ... absurd". 

Those adjectives are so strong that one's first inclination may be to assume they're the kind of overstatement endemic to baby lawyer briefs.  Lawyers just out of law school, like middle school girls learning about makeup, tend to overdo it, and not by a little bit.

But Bashman is, unlike certain other bloggers I could name, consistently polite and respectful to the judges he writes about.  "Laughable" is, in this context, a factual description: the Commission alleged that Judge Allen breached his ethical duty to perform his judicial duties "without bias or prejudice" by exhibiting prejudice against a fellow judge. 

No, really.  They really said that - a judge's ethical duty to avoid bias and prejudice doesn't refer to the judge's attitude toward parties, or even lawyers, but to his or her colleagues on the bench.  And "prejudice" in this context means drawing reasonable inferences from known facts, when those inferences suggest unethical conduct by another lawyer - if, that is, the other lawyer also wears a robe.  A judge's overriding ethical duty is to pull the plug on that portion of his or her brain that recognizes ethical lapses.  Anything else is prejudice.

It gets even funnier.  The Commission alleged that Judge Allen acted unethically by citing to a newspaper articles in a judicial opinion.

I swear I'm not making this up.

What makes this even more hilarious is that the Commission alleges that by citing to newspaper articles as evidence of "what the 'public' would believe and not believe" - those quotation marks are in the original, no kidding - the judge "undermined public confidence in the integrity and impartiality of the judiciary".  

Given that referring to public sources of information is an invalid way to gauge what the quote public unquote might think, what contrasting source of information did the Commission itself use to support its allegation that the no-quotes-needed public's confidence had been undermined?  The Commission did its sociological research the old fashioned way.  It just made it up.  (See post 139.)  That's what judicial ethics is all about.

The Commission alleges that Judge Allen's act of questioning a colleague's integrity "was contrary to your duty to observe high standards so that the integrity and independence of the judiciary may be preserved."   The way to ensure that the integrity and independence of the judiciary is preserved is ... to not question the integrity (or independence?) of the judiciary. 

"Integrity", in the Commission's conception, is a synonym for "a reputation for integrity."  Whether reality corresponds to the reputation is, as any reader of Carl Hiaasen's Florida novels ought to have known to expect, irrelevant.

So Florida judges have been put on notice that to question the ethics of a fellow judge is itself unethical.  The real heart of the Commission's complaint against Judge Allen is this sentence: "If the matter was as serious as your concurring opinion indicates you believed it to be, you should have reported the matter to the Judicial Qualifications Commission rather than publishing your attack on Judge Kahn, which undermined public confidence in the integrity and impartiality of the judiciary." 

Obviously, that's a very large part of what the complaint is about.  The Commission wants to be the sole clearinghouse for bad news about the judiciary.  More than that, it wants a monopoly on the power to decide what news is bad.  Florida judges aren't supposed to think independently about matters such as judicial integrity.  To do so only undermines the independence and integrity of Florida judges.  Rather, judges should fall into line behind the Commission, accepting it as the ethical oracle. 

That also explains the Commission's proceedings against Judge Cliff Barnes for "writing an article as a guest columnist for a local newspaper".  He, too, was accused of not limiting himself to reporting his concerns to the Commission.

But I suspect that the Commission's turf-protecting hypocrisy isn't the whole story.   Judge Allen was questioning his fellow judge's enmeshment in Florida's good-ol'-boy's network.  It's hardly subversive to suggest that judicial disciplinary boards, being answerable to the very judiciary they're supposed to investigate, tend to define "ethical" in terms of enforcing the status quo.   After all, to do otherwise would be to suggest ethical shortcomings in the source of their own power.  What did the robot used to say while flapping its arms

In short, I suspect - in a way that would be utterly unethical for me to voice out loud, were I a Florida judge - that a significant part of the Commission's mission is to facilitate unethical conduct by members of the state bar's in-group. 

But - and this is the crucial thing - we know about it only because the Florida Commission is the most transparent  judicial conduct board in the nation.  That strongly suggests it has the least to hide.

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