http://www.thelegalintelligencer.co...ces-Challenges-in-Proving-Violations-by-Eakin
JCB Faces Challenges in Proving Violations by Eakin
Ben Seal, The Legal Intelligencer
December 11, 2015
Read more: http://www.thelegalintelligencer.co...-in-Proving-Violations-by-Eakin#ixzz3u15QpSKS
Now that it has brought ethics charges against Justice J. Michael Eakin, the Judicial Conduct Board faces its next task: demonstrating the offensive and pornographic traffic on Eakin's private email account actually constituted violations of the Code of Judicial Conduct and the Pennsylvania Constitution. And while public and political criticism against Eakin is mounting, the case against him might not be a slam dunk legally.
Some court observers said the 51-page complaint filed by the board Tuesday isn't persuasive in its effort to outline Eakin's misconduct, making it unlikely the Court of Judicial Discipline will find cause to remove him from the bench. The CJD issued an order late Thursday asking Eakin to show cause why he shouldn't be suspended pending a decision in his case, and setting a Dec. 21 hearing in Northampton County on the order.
The JCB charged Eakin with two violations of the old Code of Judicial Conduct, in place when the emails were sent, and two sections of the constitution.
"They're going to have to explain how what happened here was a violation of these very general provisions that do not specifically address emails," said John Hare, an appellate attorney at Marshall Dennehey Warner Coleman & Goggin.
Hare noted that amendments made to the Code of Judicial Conduct in 2014 included specific provisions referring to emails, but because Eakin's emails were sent and received before the amendments, that level of detail isn't present in the canons under which he'll be tried. Furthermore, Hare said, the complaint, while detailing a lengthy list of emails Eakin received and a shorter list of those he sent, doesn't provide any guidance on how those two actions are treated differently by the ethics codes.
Ethics attorney Samuel C. Stretton said that while he doesn't view Eakin's conduct favorably, he doesn't think it rises to the level of ethics violations. He emphasized the difference between sending offensive emails from a government address and doing so from a private address, which is what Eakin is charged with having done. Eakin's emails were first discovered because some were sent to members of the Office of Attorney General.
Among the many emails he sent and received, Eakin sent a joke about battered women and engaged in a sexually suggestive email thread about a woman who was employed by him at the time, the complaint said. A disc with 48 of Eakin's private emails (four of which he sent) was delivered to the JCB by the OAG last November, according to the complaint, and another disc with 943 emails (157 of which he sent) was delivered Sept. 28.
The board charged Eakin with violations of Canon 2A of the Code of Judicial Conduct, on promoting public confidence in the integrity and impartiality of the judiciary; Canon 5, on regulating extrajudicial activities to minimize the risk of conflict with judicial duties; Article V, Section 17(b) of the constitution, on violating canons of legal ethics; and Article V, Section 18(d)(1), on bringing the judicial office into disrepute.
Duquesne University School of Law professor Bruce Ledewitz said it's unclear what standard is being used in charging Eakin, and called the case against him "amorphous."
"The charge against him, legally, is not terribly persuasive," Ledewitz said.
Nonetheless, he said, the public perception of the issue is the complete opposite. There is no question that the people of Pennsylvania have lost confidence in the judiciary because of the emails, Ledewitz said, and Eakin has brought the judiciary into disrepute. But Ledewitz said he doesn't know of any instance in which a judge has been disciplined for bringing the judiciary into disrepute without otherwise violating the ethics canons.
Ellen Brotman of Griesing Law, an ethics attorney who handles disciplinary matters, said she thinks the Court of Judicial Discipline will find all four canons were violated.
"When you look at the canons and both the length of time this has been going on and the theme and the pattern of these emails, I think that it's clear that these canons were violated," Brotman said.
The notion that the emails were all sent from a private address won't be a sufficient mitigating factor, she said.
"It's hard to say in this day and age that the fact that you are using your private email gives you any level of comfort that that private email won't someday be public," she said. "All it takes is for that email to be forwarded to the wrong person."
William C. Costopoulos of Costopoulos, Foster & Fields, who is representing Eakin alongside Eakin's wife, Heidi Eakin, of the same firm, said he plans to move the matter along as expeditiously as possible. Justice Eakin has already admitted to the facts of the JCB's complaint—that he sent and received the emails at issue—and plans to present "a legitimate and good-faith and aggressive response," Costopoulos said.
Lynn Marks of Pennsylvanians for Modern Courts said the board's complaint presents an opportunity to finally air out everything and give Eakin a chance to respond to questions about his involvement in the emails—questions that have been hovering around him and the Supreme Court for more than a year. Eakin, in a statement, said Tuesday he welcomes the opportunity for transparency.
"It's in everybody's interest—Justice Eakin, the court itself and the entire Pennsylvania community—to have this move along as expeditiously as possible, but obviously being done in the most comprehensive, thorough way," Marks said.
Observers agreed that having a publicly available, concrete complaint outlining both Eakin's actions and his alleged ethics violations represents a positive step forward in the disciplinary process. The Supreme Court has conducted two reviews—one last fall and another once new emails were available this fall—and the JCB has now done the same. Attorney General Kathleen Kane last week appointed a special prosecutor to conduct another review of the emails.
But the JCB, led by deputy chief counsel Francis J. Puskas II, won't have an easy time proving the emails constitute violations, some attorneys said.
"To suggest that he clearly violated any discernible standard, I think, is a stretch," Hare said.
Puskas is serving in place of JCB chief counsel Robert A. Graci, who recused from the case in mid-November after the Philadelphia Daily News reported that he had represented Eakin's 2011 retention campaign and acted as a spokesman. Puskas did not return a call for comment.
Ben Seal can be contacted at 215-557-2368 or bseal@alm.com. Follow him on Twitter @BSealTLI. •
Read more: http://www.thelegalintelligencer.co...-in-Proving-Violations-by-Eakin#ixzz3u15ILoXw
JCB Faces Challenges in Proving Violations by Eakin
Ben Seal, The Legal Intelligencer
December 11, 2015
Read more: http://www.thelegalintelligencer.co...-in-Proving-Violations-by-Eakin#ixzz3u15QpSKS
Now that it has brought ethics charges against Justice J. Michael Eakin, the Judicial Conduct Board faces its next task: demonstrating the offensive and pornographic traffic on Eakin's private email account actually constituted violations of the Code of Judicial Conduct and the Pennsylvania Constitution. And while public and political criticism against Eakin is mounting, the case against him might not be a slam dunk legally.
Some court observers said the 51-page complaint filed by the board Tuesday isn't persuasive in its effort to outline Eakin's misconduct, making it unlikely the Court of Judicial Discipline will find cause to remove him from the bench. The CJD issued an order late Thursday asking Eakin to show cause why he shouldn't be suspended pending a decision in his case, and setting a Dec. 21 hearing in Northampton County on the order.
The JCB charged Eakin with two violations of the old Code of Judicial Conduct, in place when the emails were sent, and two sections of the constitution.
"They're going to have to explain how what happened here was a violation of these very general provisions that do not specifically address emails," said John Hare, an appellate attorney at Marshall Dennehey Warner Coleman & Goggin.
Hare noted that amendments made to the Code of Judicial Conduct in 2014 included specific provisions referring to emails, but because Eakin's emails were sent and received before the amendments, that level of detail isn't present in the canons under which he'll be tried. Furthermore, Hare said, the complaint, while detailing a lengthy list of emails Eakin received and a shorter list of those he sent, doesn't provide any guidance on how those two actions are treated differently by the ethics codes.
Ethics attorney Samuel C. Stretton said that while he doesn't view Eakin's conduct favorably, he doesn't think it rises to the level of ethics violations. He emphasized the difference between sending offensive emails from a government address and doing so from a private address, which is what Eakin is charged with having done. Eakin's emails were first discovered because some were sent to members of the Office of Attorney General.
Among the many emails he sent and received, Eakin sent a joke about battered women and engaged in a sexually suggestive email thread about a woman who was employed by him at the time, the complaint said. A disc with 48 of Eakin's private emails (four of which he sent) was delivered to the JCB by the OAG last November, according to the complaint, and another disc with 943 emails (157 of which he sent) was delivered Sept. 28.
The board charged Eakin with violations of Canon 2A of the Code of Judicial Conduct, on promoting public confidence in the integrity and impartiality of the judiciary; Canon 5, on regulating extrajudicial activities to minimize the risk of conflict with judicial duties; Article V, Section 17(b) of the constitution, on violating canons of legal ethics; and Article V, Section 18(d)(1), on bringing the judicial office into disrepute.
Duquesne University School of Law professor Bruce Ledewitz said it's unclear what standard is being used in charging Eakin, and called the case against him "amorphous."
"The charge against him, legally, is not terribly persuasive," Ledewitz said.
Nonetheless, he said, the public perception of the issue is the complete opposite. There is no question that the people of Pennsylvania have lost confidence in the judiciary because of the emails, Ledewitz said, and Eakin has brought the judiciary into disrepute. But Ledewitz said he doesn't know of any instance in which a judge has been disciplined for bringing the judiciary into disrepute without otherwise violating the ethics canons.
Ellen Brotman of Griesing Law, an ethics attorney who handles disciplinary matters, said she thinks the Court of Judicial Discipline will find all four canons were violated.
"When you look at the canons and both the length of time this has been going on and the theme and the pattern of these emails, I think that it's clear that these canons were violated," Brotman said.
The notion that the emails were all sent from a private address won't be a sufficient mitigating factor, she said.
"It's hard to say in this day and age that the fact that you are using your private email gives you any level of comfort that that private email won't someday be public," she said. "All it takes is for that email to be forwarded to the wrong person."
William C. Costopoulos of Costopoulos, Foster & Fields, who is representing Eakin alongside Eakin's wife, Heidi Eakin, of the same firm, said he plans to move the matter along as expeditiously as possible. Justice Eakin has already admitted to the facts of the JCB's complaint—that he sent and received the emails at issue—and plans to present "a legitimate and good-faith and aggressive response," Costopoulos said.
Lynn Marks of Pennsylvanians for Modern Courts said the board's complaint presents an opportunity to finally air out everything and give Eakin a chance to respond to questions about his involvement in the emails—questions that have been hovering around him and the Supreme Court for more than a year. Eakin, in a statement, said Tuesday he welcomes the opportunity for transparency.
"It's in everybody's interest—Justice Eakin, the court itself and the entire Pennsylvania community—to have this move along as expeditiously as possible, but obviously being done in the most comprehensive, thorough way," Marks said.
Observers agreed that having a publicly available, concrete complaint outlining both Eakin's actions and his alleged ethics violations represents a positive step forward in the disciplinary process. The Supreme Court has conducted two reviews—one last fall and another once new emails were available this fall—and the JCB has now done the same. Attorney General Kathleen Kane last week appointed a special prosecutor to conduct another review of the emails.
But the JCB, led by deputy chief counsel Francis J. Puskas II, won't have an easy time proving the emails constitute violations, some attorneys said.
"To suggest that he clearly violated any discernible standard, I think, is a stretch," Hare said.
Puskas is serving in place of JCB chief counsel Robert A. Graci, who recused from the case in mid-November after the Philadelphia Daily News reported that he had represented Eakin's 2011 retention campaign and acted as a spokesman. Puskas did not return a call for comment.
Ben Seal can be contacted at 215-557-2368 or bseal@alm.com. Follow him on Twitter @BSealTLI. •
Read more: http://www.thelegalintelligencer.co...-in-Proving-Violations-by-Eakin#ixzz3u15ILoXw
