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Chinn: Can of Worms Opened

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iba-chinn-scottThis column is usually void of legal analysis. (Pause for various jokes told to yourself.) But in this edition, I want to highlight a recent legal opinion that bears upon an initiative of the IndyBar. I will raise more questions than I answer, and this likely won’t be the last time we will talk about the matter.

As you may know, the IndyBar has been concerned for a few years now with the reach of Caperton v. A. T. Massey Coal Co., the 2009 decision of the U.S. Supreme Court holding that in some circumstances contributions to judicial campaigns can give rise to due process violations when the judge whose campaign received the contribution fails to recuse himself or herself in a case in which the contributor is a party. Shortly after the decision came down, the IndyBar sent a letter to the Indiana Supreme Court asking that the court consider adopting rules for Caperton’s application in Indiana. The court has yet to do that.

Since then, the IndyBar has explored ways to avoid the appearance of impropriety that may be created, and in some cases has been highlighted by the media, by lawyers giving contributions to judges in front of whom they appear. The Attorneys for an Independent Bench political action committee, as one example, was initially formed as a vehicle to accept contributions for distribution to all nominated judges for those who were concerned about making contributions to specific judges in front of whom they may practice.

Again, the point is not that judges’ impartiality can reasonably be compromised by a $100 or $200 contribution from a lawyer. Nor is that level of contribution likely to invoke Capterton’s due process concerns — millions of dollars in contributions were at issue in that case. Still, we want to avoid circumstances that give rise to an appearance of partiality. And to offer a common-sense point that seems to go largely uncommented on in this context: do you think that most clients even know that the lawyers in their cases can lawfully give money to the judge’s campaign? How many clients, when told that opposing counsel had contributed to the judge’s campaign would fail to ask of his own lawyer, “well, how much did you give?”

Add to this discussion the recent case of Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61 (Ind. Ct. App. 2012). In this case about an advertising dispute between the publisher of Bloom Magazine and a restaurateur, the trial judge denied a motion by the lawyer for the magazine to recuse the judge because the opposing lawyer had been the judge’s campaign chair for the judicial elections held two years previously. The Indiana Court of Appeals unanimously reversed the trial court’s decision denying recusal, holding that the professional (political) relationship between the judge and the lawyer was close enough in time (2008 election, 2010 case) that “a reasonable person would have a rational basis for doubting her impartiality.” The court relied in part on Rule 2.11 of the Indiana Rules of Judicial Conduct, which requires judicial disqualification when a judge’s impartiality might reasonably be questioned, including for the reason of the judge’s personal bias toward a party’s lawyer.

Attention … the can of worms is now open for business. So, how long is the “cooling-off period” before a judicial campaign chair can practice in the judge’s court again? Is it only the campaign chair whose relationship with the judge gives rise to recusal, or would the appearance of the campaign treasurer or other members of the campaign invoke the rule? Are there any circumstances in which the lawyer-campaign chair’s activities are attributed to his or her partners for purposes of recusal? After Kiang, what are the obligations of a lawyer from a legal malpractice/risk management perspective to perform due diligence about whether his or her opposing counsel has been a campaign officer for the judge?

Turning to Caperton-type issues, what about campaign contributions? What amount of contributions under the Indiana rules would be enough to require recusal? (This is not an academic question. There have been motions to recuse judges in Marion County made and granted on the basis of small contributions having been made by the opposing lawyer.) When determining the threshold amount of a contribution that may give rise to Caperton due process issues or Indiana Rule-based appearance of partiality concerns, do you only consider the contributions of the lawyer appearing in front of the recipient judge or do you count all the contributions from that lawyer’s firm?

Brainstorming these questions would be a dangerous drinking game. But lawyers and judges are now going to have to stir them into the cocktails of our practice.•

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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