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Judge Sues Lawyer over Publication of Judicial Conduct Complaint

By Sara E. Costello, Litigation News Associate Editor – December 20, 2010

Lawyers and judges are unfortunately exposed all too often to discourtesy and a lack of civility in modern legal practice. It is especially troubling, however, when disputes between lawyers and judges foster additional litigation.

A Texas state court judge recently filed a lawsuit against a prominent plaintiffs’ attorney. The original petition [PDF] filed by Judge Carlos Cortez, of Dallas County’s 44th Civil District Court, included defamation and extortion claims against the attorney. Judge Cortez later substantially narrowed [PDF] the facts alleged in his petition and dropped the extortion claim. The lawsuit stems from an earlier complaint against Judge Cortez that the attorney filed with the Texas State Commission on Judicial Conduct.

Lawsuit Alleges Attorney Motivated by Politics
According to Judge Cortez’s original petition, the attorney’s complaint to the commission was intended “to diminish” the judge’s “chances of re-election.” Judge Cortez alleged that the attorney hoped “to attract a political opponent” to run against and defeat him. He further alleged, based on a presuit deposition of the attorney, that the attorney did not base the complaint on firsthand knowledge of the judge’s behavior. Instead, the attorney apparently relied on events reported to him by other sources, including other state court judges.

Judge Cortez asserted that “[m]onths passed without any publicity” after the attorney filed his complaint with the commission. Then, “just weeks before the filing deadline for judicial candidates,” the attorney gave copies of the complaint to media outlets, such as the “Texas Lawyer, Dallas Observer, WFAA Channel 8 News, and the Dallas Morning News.”

The “malicious and defamatory attack” allegedly continued when the attorney emailed a copy of the complaint to more than 100 members of the local chapter of the American Board of Trial Advocates. Judge Cortez contended that “judicial investigations of filed complaints are required by the Judicial Conduct Commission to be kept confidential” unless “formal proceedings are instituted.”

According to a report in the Texas Lawyer, which was provided with a copy of the attorney’s complaint, the complaint filed with the commission asserts that Judge Cortez belittles, berates, and ridicules his colleagues both to the public and to other judges. Along with his complaint, the attorney submitted a series of emails allegedly exchanged between Judge Cortez and several Dallas judges and lawyers.

In one of the emails provided to the Texas Lawyer and attributed to Judge Cortez, he called his fellow judges “a f---ing joke.” He described one judge as “Car Wreck Craig” and also accused another judge of falling asleep at the bench.

Candor or Misconduct?
When evaluating the attorney’s complaint, the commission will have to decide whether Judge Cortez’s pointed emails about his colleagues rise to the level of misconduct or even require additional investigation.

Judges “emailing amongst themselves should be able to discuss issues with a level of candor” says Theresa M. House, New York City, vice-chair of the ABA Section of Litigation’s Trial Practice Committee. They “have an obligation to balance,” however, this interest “with respect for their colleagues,” she maintains.

Regardless of the commission’s conclusion about Judge Cortez’s conduct, some have noticed a decrease in courtesy throughout the bar. “The reality is there is a growing lack of civility” in the legal profession “that we have to deal with,” says Nash E. Long III, Charlotte, cochair of the Section of Litigation’s Trial Practice Committee.

Reactions to the Attorney’s Actions
Judge Cortez’s lawsuit calls into question the opposing attorney’s motives for filing the complaint and making his accusations public. If the attorney was acting in good faith and has knowledge of judicial misconduct, he “has an obligation to come forward,” House says. That is “exactly what he is supposed to do.”

On the other hand, if the attorney acted with “reckless disregard” as to the truth or falsity of the information he released to the public about the qualifications or integrity of the judge, “it is an absolute violation” of Model Rule of Professional Conduct 8.2, Long notes.

Election an Important Factor in Dispute
Long believes that Texas’ system for electing judges cannot be ignored when examining the circumstances of Judge Cortez’s lawsuit and the attorney’s complaint filed with the commission. This situation “seems like it was driven by the fact that the judge was in a re-election campaign” Long says. He worries about “forcing judges to be part of the political process.” Disputes like this one “might be an outgrowth of electing judges,” Long notes.

Keywords: litigation, judicial conduct, ethics, political campaign


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