Guest commentary: Judicial legislation won’t accomplish much _lowres


Corrupt a state judge, but don’t dare call one corrupt! That cynical conclusion comes from considering the grossly disproportionate treatment as between a judge and a lawyer under the Louisiana Supreme Court’s disciplinary process.

Pending House legislation requiring ethics-transparency rules for Louisiana’s Supreme Court doesn’t address the real institutional issue.

In late 2014, the Judiciary Commission recommended, and the Supreme Court concurred, that District Court Judge John “Robin” Free, of Port Allen, receive a 30-day suspension. Free admitted his misconduct of accepting an all-expenses-paid trip to a hunting ranch owned by a Texas lawyer who had just settled a lawsuit in Free’s court for $1.2 million.

Also in late 2014, a Louisiana Attorney Disciplinary Board hearing committee recommended a nine-month suspension (with six months deferred) plus at least two years of supervised probation for Christine Mire (a former student of mine). The Disciplinary Counsel considered the punishment too lenient. Mire denied any wrongdoing and beat the more serious allegations of making false statements and misrepresentations.

So what did Mire do that was worse than Free’s corruption? The Hearing Committee found that Mire “crossed the line” by aggressively appealing a bankruptcy court order and “went too far” in attempting in several cases to recuse for bias Judge Phyllis Keaty (then a district judge in Lafayette) and for filing an ethics complaint against Keaty.

Mire’s major offense, however, apparently was writing in a filing to the Louisiana Supreme Court that the review by the 3rd Circuit Court of Appeal of a decision by Keaty (then a candidate for, and now a member of, the 3rd Circuit Court) showed that “corruption and/or incompetence of attorneys and judges in this case … is a systemic problem.”

Neither the bankruptcy court, nor the Louisiana Supreme Court took disciplinary action. Keaty filed the disciplinary complaint.

Even if unjustified, Mire’s charge of judicial corruption was nothing comparable to Free’s corrupt acts. She argued for the benefit of her client; Free benefited himself.

Moreover, the Judiciary Commission had previously privately warned Free about other misconduct. Mire had no previous misconduct charges.

Why such unequal treatment? My view: institutional politics! Like other institutional actors, e.g., university faculties, medical doctors, judges and lawyers work to protect the powers-that-be within the profession.

The great majority of Louisiana’s judges, I assume, are honest. The failing of many judges and lawyers, however, may be turning a blind eye to occasional judicial misconduct.

Maintaining good relations among state judges and between lawyers and judges is important but not at the cost of tolerating unethical conduct.

By the standards they set, judges control the ethical climate in the courts.

For unethical conduct, trial judges have formal and informal means to punish lawyers. The more serious problem involves the coziness between some lawyers and trial judges.

Years ago, a plaintiff attorney (another former student) asked my advice about handling a judge’s improper calls to him. He hoped to avoid unethical conduct without jeopardizing his relationship with the judge.

In failing to impose a serious punishment on Free, Louisiana’s Supreme Court missed the perfect opportunity to demonstrate seriousness about judicial corruption.

Pending legislation to create rules promoting judicial transparency won’t accomplish much.

Rules are secondary to principles. The fundamental principle of our court system is simple: Judges must be neutral. From that principle comes the rule barring private judge-lawyer conversations or contacts related to a case.

Under America’s constitutional system of separation of powers, the proper legislative response to particular instances of judicial corruption is not legislation but impeachment of the offending judge.

John S. Baker Jr. is an LSU Law Center professor emeritus.