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Disciplinary Counsel v. O'Neill9/7/2004
context in which actual grievance complaints against judges are uncommon, establishes a serious problem regarding Respondent, the panel majority also considers that these incidents arose out of five years of judicial service predating the Complaint filed in 2002. The panel majority recognizes that most of the violations found address Respondent's lack of judicial temperament and lack of compliance with the particular obligations of judicial office. The majority of the violations do not impinge on the Respondent's underlying qualifications necessary for the practice of law. As a result, the panel majority concludes rather than warranting disbarment from the practice of law as recommended by the Relator, the sanction should be a significant actual suspension which recognizes the multiple serious violations relating to judicial service but does not ultimately deprive Respondent of the right to practice law.
339. Balancing the multiple violations found with aggravation by dishonesty, pattern of conduct, resulting harm, effect on public esteem for and integrity of the judiciary with mitigation of service to the profession, contribution to the community and absence of a prior disciplinary record, the majority of the panel recommends that the Respondent be suspended from the practice of law for two years.
Judge Jack Puffenberger, dissenting:
For the reasons listed below, I hereby dissent from the report and recommendation of the other two panel members.
The extensive allegations presented in this complaint are far reaching in substance and, in many instances, require Respondent to justify judicial determinations made many years before. This Board must be cautious not to infringe upon areas of our legal system wherein our judiciary has traditionally been granted extensive discretion in making judicial determinations. Inappropriate actions of one member of the judiciary must not be sanctioned in a manner that would have a "chilling effect" on judges who may sometimes utilize methods which may be perceived as "unconventional". Judges are constantly making split second decisions in the courtroom and sometimes their motives for making these determinations can be placed in question. Our legal system has acknowledged this and provides proper avenues of recourse outside the disciplinary process. To require our judges to be placed under oath in a disciplinary setting and explain why a judicial determination was made is foreign to our legal system. In situations where the judicial determination was made years earlier, that task of explaining why the decision was made can be nearly impossible.
While it is not my intention to review the panel report case by case, I will generally address each of the counts in the Amended Complaint and conclude by formulating a more generalized dissent to both the findings and the recommendation.
In reviewing each of the Counts in the Amended Complaint, the Board must apply the standard of whether the violations have been proven by clear and convincing evidence. This is a high standard to meet and is more than a simple preponderance of the evidence.
In Count I, the panel report finds that Respondent engaged in ex-parte communications. In Nezvalova, Disciplinary Counsel clearly failed to establish that the conversations were ex-parte in nature. No one gained a procedural or tactical advantage as a result of the conversation which was administrative in nature. Two distinguished judges, Judge Corzine and Judge Parrott, testified that this was not an ex-parte conversation. Likewise, the conversation in Smiley was administrative in nature and Judges Corzine, Parrott and former Judge Tracey testified that conversations
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