Sitting Small Law Judge Confuses Role, Gets Suspended

A Van Wert, Ohio (somewhere near the Indiana border according to a map) municipal court judge has been suspended by the Ohio Supreme Court for multiple acts of forgetting that he was the judge, and not some other participant, for instance the police, the jailer, the defense attorney, or the prosecutor. 

Judge Phil Campbell (pic), who is the sitting-Van Wert Municipal Court judge drew a one year suspension with 6 month suspended and if you ask me, he's a very lucky man.  Some of Judge Campbell's cited actions over the course of many years involved incarceration of folks who possibly or probably should not have been incarcerated but for his imperious behavior.  At the link you can read the Ohio opinion upholding Judge Campbell's suspension, but the essence of the underlying trouble was that this Judge was not happy reserving his role to impartial finder of fact and law.  If he felt a defendant should enter a guilty plea, he coerced it.  If Judge Campbell thought your attorney's insistence on constitutional rights was unreasonable he'd call him a "horse's ass."  If the Judge suspected that certain crimes were not being investigated he would unilaterally investigate.

By the way a report at the Van Wert Times Bulletin says Judge Campbell was seated and presiding over cases when the decision was handed down by the Ohio Supreme Court!

We've seen lawyers in Ohio draw long suspensions for ethical acts not bearing on the freedom of citizens or their constitutional rights as when earlier this year an African-American lawyer providing services to an indigent client base drew an indefinite suspension for notarizing a deed outside of the presence of the person who signed it--and yet, here is a petty tyrant acting in a crucial role in the lives of the citizens of Van Wert in a pattern of behavior (over many years) that should send a chill;  and, yet the Ohio Supreme Court and the disciplinary authorities of Ohio give the judge a 6 month timeout!

Ex Parte Communications--Money, Money, Money

Lawyers involved in litigation are ethically prohibited from ex parte communications with the court or judge concerning substantive issues under consideration by the court.  Likewise, Judges are prohibited from ex parte communications with one party or his or her lawyer.  Ex parte means "on one side only."  If we are going to have a party, everyone is invited--this is a kindergarten rule that continues to apply in life, in court. 

Unfortunately, this is life and in life the prohibition against ex parte communications is routinely ignored, in my experience.  Too often in my career, I've had opposing counsel rub their special relationship with the court in my face and I admit that I've been in the uncomfortable position of being on the receiving end of some communications from a Judge or Court that I thought came dangerously close to that prohibited line.

Truly corrupt judges exploit this prohibition to line their pockets, this is when in the eyes of the public, "the fix is in."  So today's example comes from Bad Lawyer's beloved Maricopa County, a legal vacuum rife with corruption and quasi-official terrorism.  In this morning's Arizona Republic, reporters Pat Kosslan and Robert Anglen are  relating the inquiry into Probate Judge, Lindsay Ellis.  In short, Judge Ellis, who is sitting pro tem which means for "for the time being" in some jurisdictions Judges "sitting by assignment" or a "visiting judge."  I don't know Judge Ellis, I imagine the Judge is a senior jurist sitting by appointment. 

Judge Ellis issued an order granting legal and caregiver fees of $800,000 + in a case that were considered a wee bit steep by relatives who objected.  It turns out the Judge was sharing via email his prospective order on the issue of the fees with the attorneys who were to receive the fees.  Damn, fine deal! 

Implicit in discovering this breach of ethics is the question, what's in it for Judge Ellis?--and, how long has this practice been going on throughout the Judge's career.  You see, Probate court is loaded with the potential of undetected unethical conduct.  While it is a gross oversimplification, I had a probate attorney laughingly tell me, Probate clients: the deceased, the invalids--are the best, because they rarely complain.  When intestate matters (probate matters without wills or written guardianships) come before the court, the opportunity for Judges to mete out favors to lawyers, appraisers, caregivers, and others has historically proven ripe for abuse and exploitation.

Please Have a Seat, Your Hearing Will Be Delayed Until the Judge and Your Lawyer Finish Wrestling

The Oregonian reports on the Portland Lawyer and the Social Security Administration, Administrative Law Judge who got into a wrestling match over which of the two of them would ride the next elevator.  Lawyer Daniel Bernath and Administrative Law Judge Dan R. Hyatt, both 60, are said to be bitter enemies.  This is excerpted from Bryan Denson's lengthy story:

"Meet the combatants. Judge Dan R. Hyatt (pic, right), a 60-year-old Navy veteran, is squarely built, about 5-foot-7, with a white mustache. He earned the Bronze Star for combat heroism in Vietnam and labored as a military trial lawyer. He's known as a stern judge who demands deference and gives no quarter to unprepared lawyers.

Daniel A. Bernath (pic left), also a 60-year-old Navy veteran, stands 6-foot-2 and weighs 240 pounds. He has a gray beard and uses a cane or crutches to get around. He's a former radio reporter who has worked 25 years as a lawyer. Competitors call him a crank, a chronic whiner and client poacher, although he differs about such characterizations.

Five years before their tiff on the lift, Bernath went to work as a clerk in the same office that employed Hyatt. They were friendly, but scarcely friends. Hyatt thought Bernath childish for posting names of Navy ships on file carts, which the lawyer says livened up a dry office.On Oct. 18, 2005, about 14 months after he went to work for Social Security, Bernath quit to become a claimant representative. Soon he took clients before some of the judges for whom he once toiled to help them get disability benefits.


Bernath advertised on TV and in The Oregonian, telling customers, 'You have a right to switch lawyers.' Other attorneys bristled when Bernath filched their clients, a breach of etiquette known as poaching.  The lawyer also filed Oregon State Bar complaints against some of his competitors -- some posted to his website, oregonshyster.com -- and soon found himself persona non grata to other claimant reps.  Bernath says competitors were envious because he outhustled them, signing 2,600 disability claimants in four years.

Lawyer Dick Sly, who says he faced some of Bernath's 'frivolous' bar complaints (all dismissed), remains angry. Sly says he's never met Bernath and sees no upside in locking horns with him now.

'It's kind of like fighting with your wife,' he says. 'The consequences you will bear forever.' [ed. This si the sanest observation in the article.]
On Feb. 21, 2007, Bernath brought a client named Barry Moody before Hyatt to appeal his denial of disability pay. But the judge disregarded Moody, instead quizzing Bernath about his veracity.

Hyatt believed the lawyer was lying to him, because he recalled Bernath telling him the California Bar had once suspended his license. The judge asked Bernath if he'd ever been disciplined there, and the lawyer said never. So Hyatt got him to swear to that under oath, then quickly closed the hearing.  Bernath was not a member of the Oregon State Bar, and Social Security does not require claimant representatives to be lawyers. But Hyatt took a CD recording of the 11-minute proceeding to a bar investigator anyway, evidence, he says, of Bernath's dishonesty.   Bernath's California law license was suspended in 1995 because he failed to pay child support, records show. But that was a regulatory action, rather than a disciplinary one, according to a bar spokeswoman. However, Bernath denies he was ever suspended, saying, 'I was voluntarily inactive.'

The Oregon Board of Bar Examiners had seen things differently. In 1997, the panel denied him admission to practice here because he failed to disclose his California suspension. The Oregon Supreme Court upheld that denial: 'The record contains overwhelming evidence that applicant does not possess (the) requisite good moral character and fitness to be a practicing attorney in Oregon.' The opinion noted other accusations by bar examiners: Bernath destroyed all his California case files and once carried a concealed weapon into a deposition. But Bernath says he destroyed no original files and held a permit for the weapon.

After Hyatt complained to the bar, Bernath became a frequent filer at the Oregon State Bar. In 2008 and 2009, he filed six complaints against the judge, all dismissed, and obtained other lawyers' complaints against Hyatt. In a letter to tax officials, he suggested Hyatt cheated on his taxes.   Bernath posted many of the accusations on oregonshyster.com. In recent years, the site has accused Hyatt of lies, cruelty and racism, once lampooning him as a hooded Ku Klux Klansman with a Social Security emblem on his chest.

One of Bernath's bar complaints, which accused Hyatt of revealing Moody's Social Security number to the Oregon Bar, was dismissed. But it got traction with Social Security.  The agency's chief judge, Frank Cristaudo, wrote to the Merit Systems Protection Board that Hyatt had flagrantly disregarded three agency rules: releasing a claimant's private information, filing a bar complaint against a practicing lawyer, and giving inaccurate statements to bar investigators.  Cristaudo proposed to suspend Hyatt for 30 days, but the judge fought it. The case settled last summer when Hyatt agreed to a suspension in exchange for withdrawal of Social Security's charges, according to records obtained by The Oregonian.

Two years ago, Hyatt recused himself from hearing Bernath's cases. The judge found him too hostile. So did an expert witness in disability cases, who complained to agency officials about the lawyer's temper last spring. She provided her complaint to The Oregonian on condition she not be named, saying she feared Bernath.

'His outbursts are unprovoked, explosive, and disproportionate to the proceedings,' she wrote. 'He appears to have difficulty gaining control once his emotions escalate, and the escalation is rapid.'

The FIGHT:

On the morning of March 31, Bernath walked out of a disability hearing, client in tow, and approached elevators on the fourth floor of Duncan Plaza. He moved for the doors of an open elevator using a cane and a rolling file box as crutches. Hyatt, heading downstairs, stood alone in the car.  What happened next remains in dispute.

Bernath says a man he didn't recognize rushed to the front of the elevator. He says the man put his hands on his hips, shouted 'No!' and told the lawyer he couldn't get on. Bernath says the man then chest-butted him and, as the lawyer started to fall backward, roughly butted him again with his chest and belly, shouting, 'Get the police, this man just assaulted me.'  Only later, says Bernath, did he learn the man was Hyatt. He recalls a Federal Protective Service inspector asking him for a statement, which he declined on his lawyer's standing advice.

Hyatt describes Bernath's version of the story as 'fantasy.' The judge says Bernath ran to the elevator, used his cane to block the doors from closing, then roughly chest-butted him. He says Bernath then refused to move away until a security guard pulled him off, shouting, 'Are you arresting me?"' Bernath was handcuffed and cited for disorderly conduct.  On April 2, two days after the elevator incident, Bernath petitioned Washington County Circuit Court for a restraining order against Hyatt. The lawyer wrote that he was afraid of him after their elevator dust-up. . .

News of the latest Bernath-Hyatt scrape livened up a daily e-mail forum of Oregon claimant representatives, says moderator Linda Ziskin. But she says e-mails rained much harder on Bernath, whose antics are viewed with amusement tempered by disgust.  Weeks before, Social Security had served Bernath with papers notifying him of its intention to bar him as a claimant rep. Hyatt says the agency is considering more than 50 incidents of the lawyer's 'assaultive, inappropriate and unethical behavior' over a two-year period, none of which included him.

Such characterizations infuriate JoEllen Shannon, a 61-year-old former nun who handles some of Bernath's cases on contract. Shannon acknowledges Bernath has an intense personality but says he's a good mentor and tough negotiator.

'His intelligence and strength unfortunately have been misinterpreted,' she says.  Shannon was dismayed recently to spy a flier on the wall of Salem's hearing office with a photo of Bernath and text reading something like, 'Have you seen this man?' Shannon thought it unseemly of Social Security to put up a 'wanted poster."'

Bernath says he never behaved improperly in Social Security hearings and that all he's ever done is give hope to clients left discouraged by an agency that wants them to give up before they get disability pay.  'Because I'm a good advocate, and an irritant, they are trying to take away my law practice,' he says.

Late last month, Bernath filed two notices that he intends to sue Social Security and Hyatt for the judge's actions. One claim seeks $2 million for coercion, alleging that Hyatt promised to recuse himself from hearing Bernath's cases if the lawyer removed references to him from his Web site. The other seeks $10 million in compensation for injuries and emotional distress he claims Hyatt inflicted on him.   The judge chuckled at this. 'I think we're just going to have to let justice run its course," he says. "I'm not going to go shielding my assets.'"
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I can't tell you how many times over my career I've dealt with characters like Bernath and judges like Hyatt.  Neither "type" is particularly pleasant to encounter.  After you deal with a guy like Bernath you feel like taking a shower.  After a hearing with a guy like Administrative Judge Hyatt you want to reassure your client that there is an appellate process. 

In OurState there is a notorious situation that is played and replayed at Continuing Legal Education seminar ethics sessions in which two lawyers got into fisticuffs in front of a magistrate and court reporter who took it all down.  It's actually been reenacted by actors--to make a point.  We aspire to be something more than what we actually are, often nothing more than big babies.  Sixty-year old big babies!

A Meditation on Corruption in Our Counties

I've talked a lot about Andrew Thomas and Sheriff Joe Arpaio in Maricopa County, at this point, probably ad nauseum. In Maricopa County we have a modern American county-wide government so dysfunctional that the State of Arizona was moved to enact and enable oversight by a retired Arizona Supreme Court Chief Justice.  This, after Arpaio and County Attorney Thomas criminally indicted and civilly sued all other county officials who dared question their notorious terrorist governing practices and more importantly, their self-seeking budget expenditures.  These elected County clowns have spent millions of dollars for BigLaw representation in lawsuits that defy logic. You can read my prior posts on Maricopa County meltdown at the link.  Better yet the ABAJournal and the Arizona New Times have brilliant summary discussions.  The games go on, with contempt proceedings this last week and the County shutting down the Sheriff's credit card accounts.

While Maricopa County represents one extreme, Cuyahoga County, Ohio encompassing Cleveland probably better represents what goes on more traditionallyy here, there and elsewhere.  Cuyahoga County on Lake Erie is a huge metropolitan area surrounding a rust bucket town that has not been able to get traction.  Like Detroit, Cleveland has many attractive natural attributes, i.e. an enormous fresh body of relatively clean and attractive (in a recreational sense) water and shorelines.  At one time, Cleveland--which is believe it or not very beautiful and temperate-- home to international headquarters to many of the largest corporations in the world, including British Petroleum. 

But like Detroit, Cleveland suffers from some of the worst local governments in the United States.   As I reported in my 6 AM post the longtime, Irish-named Cuyahoga CountySheriff has been criminally charged with a few representative counts of theft in office after nearly a half century of collecting a paycheck and benefits from the citizens of Cleveland and the local County.  So it was surprising that over the weekend, my pal Chuck sent me a link to another reporter, Mark Puente article on that wanna-be-president of the United States, Cuyahoga County prosecutor, Bill Mason (pic) who you may remember from an earlier post on Bad Lawyer that talked about Mason's ambitions and the free pass he and a drunk driving buddy got from the local constabulary.

The link from Chuck was to the weekend Cleveland.com article which as I said was reported by Mark Puente about how Prosecutor Mason put the taxpayers on the hook for a part time law job to politically-connected Michael Climaco (pic: happy, he should be!), brother of the famous Ohio lawyer John Climaco (one of the tobacco-litigation big hitters), to enable the younger Climaco to collect not only a paycheck, but a lifetime sinecure in the form of a tax payer-funded pension and gold-plated health insurance.  It is one thing to hire a first-rate lawyer to do first rate law stuff for you and the community, it is quite another to hire a non-specialist, political hack to provide legal services in an area of law requiring expertise--while letting the taxpayers foot the bill for a lifetime of financial obligation which is what Mason did.  You see, Michael Climaco, who needed public employment like Gerry Spence needs more cowboy hats--was hired part time to represent the County in the defense of workeres' compensation matters.  This area of law involves a great deal of specialization and knowledge, which Climaco most assuredly did not have, so when he failed to provide the anticipated expertise the taxpayers got the added exposure to liabilities related to added premium costs.  Mr. Climaco's qualifications to be the prosecutor's workers' compensation attorney stemmed from Mr. Climaco's tenure as a former City of Cleveland councilman and of course his relationship to John Climaco, a local political powerhouse.  John Climaco is so powerful that Vice President Biden went to Climaco's downtown Cleveland office for a little elite fundraiser for the sitting Governor of Ohio.

As I observed the other day, all roads are toll roads, this being both a personal injunction and a larger observation.  One part of our government is busily investigating and indicting another part of our government.  The Feds are investigating the local governments with whole armies of big and little fish marched into federal custody.  Corruption is not new, or particularly shocking although there sure seems to be a level of prosecutions that I don't recall from prior periods in history.  Still, those of you as old as the Bad Lawyer can look back to Spiro Agnew, the former Vice President and nolo contendre, ex-Governor of Maryland. Then there are all of our mayors, city council men and women, county commissioners and public servants of all stripes being prosecuted in stings and bribery.  There are towns like East Chicago, Indiana, Birmingham, Alabama, Detroit, Michigan, well, then there is almost all of Illinois.

So why is this happening? 

Part of what is going on it seems to me is a product of nepotism, part of the corruption is the attitude of entitlement that overwhelms rational and ethical thought.  But really, do you think these people, our public servants come into power thinking to themselves:  I'm going to rip off the public?  Aside from Blago, I doubt it. 

We pride ourselves on the notion of wheeling and dealing, entrepreneurial smarts--make it happen.  We honor the risk takers, the innovators, the people who can "network." We structure our tax laws to incentivize and enable perverse movements of money. 

Here's a for instance: who gets the best stadium and concert and event tickets?  Who eats in the expensive restaurants? Of course, the operators and owners of our large local corporation, BigLaw firms, wealthy contractors, and filthy rich bankers and insurance companies.  Who do they treat to these seats?  Take a wild guess?  Did you guess, those of us who can help them in their businesses: the Commissioner Italian Name, Councilwoman Irish Name? Guess what--these big corporate fish want nothing from local government, and local government offers them nothing in exchange for the munificence.  Just kidding.

From petty favors, larger and dicier corruption flow. 

Should we do away with these little toll roads?  Yes.  But the dining and entertainment venues and service employers and employees will argue that the tax codes and rules create employment.  These restaurateurs and entertainment folks and their lobbyists will argue that we should not reform away jobs and health insurance for servers, cooks, farmers, ushers, carpenters, electricians and so forth.  Every road is a toll road. 

My employer is a wonderful guy, a real decent and generous guy.  The blond super lawyer and I were fortunate to be included in an invitation to attend a lecture by a local Orthodox Rabbi on the subject of adversity (a particularly apt subject), at my employer's beautiful east side home.   After the formal portion of the talk, I spoke to an old friend of mine who objectively dealt with adversity--her charismatic husband of many years having killed himself over unmanageable tax liabilities stemming from the operation of one of OurTown's most popular diners.  She and I talked about the notion of "peace." My friend, Ruthie is an Israeli-born American.  Ruthie said she feared that there would never be peace between Israelis and Palestinians, implying that the vision laid out by the Rabbi who spoke was Utopian.  My take away from the Rabbi's talk was that absolutely nothing in this life is free, or right, or the way it should be, and ultimately the only place we can effect change is on the inside.  Inside me, inside you, inside our families and friends. 

I am sad for corruption and violence and suffering in the world.  If I think too much about it I become overwhelmed and crazy with stress.  But there is much that is right and hopeful, and miraculous.  I'd like to be around to see my daughter get married and have children, my son to graduate from high school and maybe college.  I'd like to see what they become.  I'd like to contribute more.  But my days of freedom may not last, and my options may turn out to be pretty limited.  Still, I see only a little, I have a limited view of the world, and of time, and certainly of space.  Corruption is something I obsess about, corruption in the police, the courts, government, corporations, employers, and especially the church.  While I can point to certain solutions, the only place I can change is in my own heart.  I can root it out.  I can confess it and try day by day to be a better person.  That is my only purpose.

Bill Mason, the Climacos, Arpaio, Thomas, Blago, Pope Benedict, the Israeli-Palestinian violence and the rest are compelling distractions from what really matters.  Which is, what do I do to exemplify for my children a willingness to reform my own angry and corrupt heart?

Note:  Most of my posts are typed and scheduled for posting at a latter date or time, unfortunately my Cat loves me so much she was not able to stay away as I worked on this post, Isabelle stepped on a key that posted this item a day earlier and out of sequence.  There is a reference to a Sheriff that will not make sense until that item runs at its regularly-scheduled moment.  Oh, well.

BL

Dickhead Lawyer Has Foul-Mouth

Richard Shackleton, a New Jersey Township Lawyer went out for a little Gun Range live pigeon shoot and just couldn't let the nearby protestors, alone.  Shakleton, after having his way with the birds cruised into the crowd of protestors and according to the ABAJournal website unleashed a vile rant including:

"'Go f--- yourself, you rotten c---,'

Shackleton’s invective was caught on videotape, as was his later refusal to apologize when confronted during the public comment period of a township meeting, the story says. 'I meant every word of it,' Shackleton said.  An employee of the group, Showing Animals Respect and Kindness (shortened to SHARK) filed the ethics grievance, while the Pennsylvania lawyer he addressed, Marianne Bessey, filed the private criminal complaint after police did not file charges."
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Shackleton now faces ethics charges and misdemeanor disorderly public allegations for his behavior and use of anglo-saxons.  It sounds like the New Jersey ethics authorities are going to use their First Amendment rights to reprimand Mr. Shakleton at some point in the not too distant future.  When the ethics police do this, it will be a victory for political correctness or courtesy. 

I remember the first time I heard lawyers use this kind of language with one another--even as an ex-Army tank commander from the, . . . er, Viet Nam "era," I was pretty surprised and shocked.  Really, there are rules of conduct applicable to this sort of language and conduct.  I really don't get this language coming from a lawyer particularly a public servant in public.  It's not illegal to talk this way, but it's not living up to the aspirational ideals of the "profession."  It's also not an ethics issue. 

Benjamin Thomas Field--Bad Prosecutor

I get a news feed from a website called Legal Profession blawg which had the report from the California Bar Association concerning the heavy discipline imposed on a career prosecutor, a 5 year suspension over "prosecutoria misconduct."  The opinion can be read at the link. I read it with a real sense of horror at both the actions of Benjamin Field and the sanctions imposed on this guy. 

Apparently in California, win-at-all-costs prosecutors can actually lose their licenses to practice law.  In OurState, in Texas, in alot of places around the country this guy would be elevated to the bench, not sanctioned.  

Reading the entire opinion you do find that he was nominated for a Judgeship at one point, and Mr. Field was basically well-regarded by a lot of lawyers who are defense attorneys and Judges.  But what Field did in 4 cases: withheld exculpatory evidence, defied court orders, made flagrantly improper closing arguments, and in one instance ordered a prohibited dental exam on a minor to prove a tenuous point--all resulted in convictions being reversed and the taxpayers and citizens of California bearing the brunt of the misconduct, let alone the criminal defendants who after all had certain rights under the US and California constitutions. 

Mr. Field was a public servant and he screwed up in at least 4 cases, significantly.  He should be disciplined--but 5 years!  Harsh?  As harsh as I've ever encountered for "prosecutorial misconduct" that didn't actually rise to the level of criminal conduct by the prosecutor.