"We were driven by a public service mission to reveal how states err on the side of protecting the rights and reputations of judges, not on the concerns of victims or the public.” --- Michael Berens, "Inside the Reuters year-long investigation into judicial misconduct across the U.S., Reuters, July 2, 2020.
Welcome back to How to Legal, where you’ll learn how to use the good side of the Internet to combat the dark side in this online era of fake news, misinformation, disinformation, and/or defamation.
To simplify, hereinafter, “fake news,” refers to “fake news, misinformation, disinformation and/or defamation.”
In this installment we will:
- answer the question what is pro hac vice?
- follow judicial procedures in a defamation per se case in Iowa, Nunes et al v. Lizza, Hearst. Real case demonstration;
- learn more about the elements of defamation law;
- find out what’s a Motion for More Definite Statements;
- briefly revisit defamation per se; and
- see if a judge will give a lawyer a free pass to break the Model Rules of Professional Conduct in a multi-million dollar defamation case in violation of his judicial oath. Real case demonstration; and
- see which judicial canon a judge violates if they did not refer potential criminal conduct to the appropriate authorities.
Remember, pace yourself. There’s a lot of information here. Don’t burn out or get overwhelmed. You are not going to learn everything in a day. You can always scroll down to what interests you, bookmark How to Legal, and come back and read more later.
Thank you for coming back to How to Legal.
Judges preside over defamation cases at both the State and Federal level
First, it’s important to know that judges preside over defamation cases at both the state and federal levels. This also applies to other counts, torts, and causes of action. Whether a case is filed in state or federal court is a larger topic. It goes into jurisdictional issues (personal, supplemental, etc.) which is a How to Legal for another day.
In today’s installment, we’re going to look at a federal case. So, if there is a specific case you are looking at be sure to read the local rules to find any nuances.
Following the money is one way to identify oath-breaking judges, following court proceedings is another.
Following court cases shows you the judges who conduct proper judicial proceedings and live by their oaths. This is important to know because it is not a given, as we learned in the Reuters investigation:
A year-long Reuters investigation, by Michael Berens and John Shiffman, found that nine out of every 10 judges were allowed to keep their positions of extraordinary power after violating judicial ethics rules or breaking laws they pledged to uphold.Inside the Reuters year-long investigation into judicial misconduct across the U.S., Reuters, July 2, 2020.
Nine out of every 10 judges.
Update: See also NBC News‘ Erik Ortiz‘s “Robed in secrecy: How judges accused of misconduct can dodge public scrutiny: Thousands of complaints are filed against judges every year, but very few result in discipline. Ethics experts say the time for states to transform the judiciary is now,” (underline mine) December 26, 2021.
Would you want to appear before a judge who violates judicial ethics and rules — judges who break laws they pledged to uphold and who have extraordinary life-changing power over your life?
I didn’t think so.
Can you imagine what it must be like for people whose cases were assigned to an oath-breaking judge who will throw a case with other officers of the courts (lawyers) for some unjust gain?
What about the ethical, oath following officers of the court? What about them? They have to live with and deal with the consequences caused by their oath-breaking colleague’s misconduct too.
Okay, let’s do this.
What is pro hac vice?
Typically, in the early stages of litigation sometimes you will see a lawyer file a notice of appearance seeking permission from the court as a pro hac vice. I categorize these filings as administrative (as I do with time extension requests and the like), but you should know what pro hac vice means.
Dictionary.law.com defines “Pro hac vice” like this:
pro hac vice
: (proh hock vee-chay) prep. Latin for “this time only,” the phrase refers to the application of an out-of-state lawyer to appear in court for a particular trial, even though he/she is not licensed to practice in the state where the trial is being held. The application is usually granted, but sometimes the court requires association with a local attorney.dictionary.law.com
Nunes et al v. Lizza, Hearst, in the District Court, Northern District of Iowa
In today’s How to Legal, we’re going to look at Nunes et al v. Lizza, Hearst (5:20-cv-04003-CJW), a defamation per se case.
In this case, Congressman Devin Nunes‘ family sued reporter Ryan Lizza and Esquire publisher Hearst over an article Lizza published about Nunes’ family and the farm they own in Iowa.
Nunes et al v. Lizza, Hearst was filed in the U.S. District Court of the Northern District of Iowa. The court’s website is here if you wish to read the local rules, including the judge’s rules.
You may read the court filings at Courtlistener.
In this case, lawyers filed pro hac vice appearances, as you can also see on the docket in Dominion, Inc. v Sidney Powell, and scores of other cases. The court permitted the out-of-state lawyers to appear. This is pretty common.
Following proper judicial process
Following is the procedural history of Nunes et al v. Lizza et al.
Step 1: The plaintiffs, Anthony Nunes, Jr, Anthony Nunes, III, NuStar Farms, LLC, filed their Defamation Complaint on January 15, 2020.
Step 2: Defendants Ryan Lizza and Hearst Magazine Media filed a Motion to Dismiss on March 23, 2020. The defendants included a Motion for More Definite Statements. (More on this below with the judge’s ruling).
Step 3: On April 7, 2020, Plaintiffs Nunes filed their Opposition to Lizza and Hearst’s Motion to Dismiss and Motion for More Definite Statements.
Step 4: Defendants Lizza and Hearst filed their Reply on April 14, 2020.
Step 5: Less than one month after the Defendants filed their reply, Federal District Court Judge, the Honorable C.J. Williams ruled. He filed his order on May 12, 2020.
As such Hon. C.J. Williams is following Canon 3A(5) of the Code of Judicial Conduct for U.S. Judges, which reads as follows:
In disposing of matters promptly, efficiently, and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should monitor and supervise cases to reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs. Prompt disposition of the court’s business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to take reasonable measures to ensure that court personnel, litigants, and their lawyers cooperate with the judge to that end.Code of Conduct for United States Judges
From the get-go, as we saw with the judge presiding over Dershowitz v CNN, we can see that this judge is also conducting proper proceedings.
Judges who don’t follow canon(s) essentially do the opposite of what the canon(s) states. So for e.g., a judge who violates Canon 3A(5) did not dispose of matters promptly, efficiently, or fairly … the judge did not demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary costs or delays and so forth– while maintaining extraordinary power over people’s lives.
Judge cites elements of defamation law
Okay, so moving along, as you can see below, in Judge C.J. Williams’s order, he extensively cited Iowa’s defamation laws. In this case, it was libel and libel per se– written. His order reads in part:
Defamation is either libel or slander. Thiesen v. Covenant Med. Ctr., Inc., 636 N.W.2d 74, 83 (Iowa 2001). Plaintiffs’ complaint sounds in libel. The Iowa Supreme Court defines libel as the “malicious publication, expressed either in printing or in writing, or by signs or pictures, tending to injure the reputation of another person or to expose [that person] to public hatred, contempt, or ridicule or to injure [the person] in the maintenance of [a] business.” Plendl v. Beuttler, 111 N.W.2d 669, 670-71 (Iowa 1961).
“Iowa courts recognize two types of libel: ‘libel per se and libel per quod.’” Doe v. Hagar, 765 F.3d 855, 860 (8th Cir. 2014) (quoting Schlegel v. Ottumwa Courier, Inc., 585 N.W.2d 217, 222 (Iowa 1998)). “A statement is libelous per se if it has ‘a natural tendency to provoke the plaintiff to wrath or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse.’” Johnson v. Nickerson, 542 N.W.2d 506, 510 (Iowa 1996) (quoting Prewitt v. Wilson, 103 N.W. 365, 367 (Iowa 1905)). “A statement is libelous per quod if it is necessary to refer to facts or circumstances beyond the words actually used to establish the defamation.” Id. (citing 50 AM. JUR. 2D LIBEL AND SLANDER § 146 (1995)).
The elements of libel claims also differ depending on whether the plaintiff is a private or public figure and whether the defendant is a member of the media. Under Iowa law, for a private plaintiff, like the plaintiffs here, to plead a prima facie defamation action against a media defendant like the defendants here, plaintiffs would need to allege “(1) publication (2) of a defamatory statement (3) concerning the plaintiff (4) in negligent breach of the professional standard of care (5) that resulted in demonstrable injury.” Johnson, 542 N.W.2d at 511. The plaintiff must also prove that the defamatory statement is false. Id. at 511 n.3. “[I]f the incident involves a matter of public concern, the plaintiff must [also] prove actual malice to recover punitive damages.” Id. at 511. When, as here, defendants are members of the media, there is no presumption that the libelous statements are false or caused injury. In other words, libel per se is not available against members of the media. See Bierman v. Weier, 826 N.W.2d 436, 448 (Iowa 2013) (stating that “libel per se is available only when a private figure plaintiff sues a nonmedia defendant for certain kinds of defamatory statements that do not concern a matter of public importance.”). Iowa also recognizes “defamation by implication” which
[A]rises, not from what is stated, but from what is implied when a defendant (1) juxtaposes a series of facts so as to imply a defamatory connection between them, or (2) creates a defamatory implication by omitting facts, [such that] he may be held responsible for the defamatory implication, unless it qualifies as an opinion, even though the particular facts are correct.
Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007) (alteration in original) (quoting Dan B. Dobbs, PROSSER & KEETON ON THE LAW OF TORTS § 116, at 117 (Supp.1988)).Nunes v. Lizza (5:20-cv-04003-CJW) , Docket No. 27, p. 7-8
When you read the court filings (linked above) you will see that Hon. C.J. Williams addressed the arguments from both parties showing he is even-handed and impartial. In addition, he did not misrepresent, mischaracterize, ignore, or omit any pleadings. He read the statements in context.
Hon. Williams ultimately granted the Defendants’ Motion for More Definite Statements for reasons set forth below.
What’s a Motion for More Definite Statements?
To find the answer among the scores of open source legal resources you can use to find out is USlegal.com. USlegal.com is another helpful legal resource anyone can use to learn How to Legal to prevent being deceived by fake news, politics, or deceived by oath-breaking judges and lawyers.
Here USLegal.com provides a helpful overview that defines a motion for more definite statements. It reads in part:
A Motion for More Definite Statement is a motion that requests the court to order the other party to clarify its statements or allegations. Such motions are made because the claims made are so vague or ambiguous that the party making the motion cannot reasonably frame a response. It is the discretion of the court to grant or deny a motion for more definite statement. The presiding judge will grant the motion if it has legal merits, and strike it from the record if it lacks merit.Motion for More Definite Statement Law and Legal Definition, USLegal.com
Specifically, in Iowa, we learn from Casetext.com:
Iowa R. Civ. P. 1.433 — R.Civ.P. = Rules of Civil Procedure
Rule 1.433 – Motion for more specific statement, Iowa R. Civ. P. 1.433 (“the party to plead to it and for no other purpose. It shall point out the insufficiency claimed and particulars desired.”)Casetext.com
So as you can see from these two legal resources cited above, the rules and language are similar, state to state, but there are nuances, so always check the local, the court rules.
Judge grants Motion for More Definite Statements
As Hon. Williams detailed in his order, the court granted the Defendants’ Motion for More Definite Statements. As such, Plaintiff needed to amend their complaint based on the pleadings and the Motion for More Definite Statements. This way the Defendants and the Court wouldn’t have to guess which statements Plaintiff claimed were false. According to the judge, this rarely happens.
Hon. Williams wrote in his order, in part:
In short, the Court finds this is one of the rare instances when a more definite statement is required under Rule 12(e). Although defendants have urged the Court to dismiss the complaint outright under Rule 12(b)(6), to do so here would require the Court to guess as to what exactly plaintiffs are claiming are the false statements. Even if the Court granted such a motion at this stage, it would be a dismissal without prejudice allowing plaintiffs leave to file an amended complaint to allege facts that would state a claim. Without knowing precisely what plaintiffs are claiming, the Court cannot say that plaintiffs are incapable of alleging facts which, if proven, would state a defamation claim against defendants.Nunes v. Lizza (5:20-cv-04003-CJW) , Docket No. 27, p. 19
So what have we learned here? In part, we learned for the Court, the judge, to faithfully and impartially discharge their duty in defamation cases, the court must identify ALL the statements that are capable of defamatory meaning according to defamation laws (read in context with applicable case law), and not leave anyone guessing.
Conversely, based on the afore-stated, a judge who fails to identify ALL the statements that are capable of defamatory meaning violated their oath.
Thereby, that would be a judge who did not “faithfully and impartially discharge and perform all the duties incumbent upon [them] as ___ under the Constitution and laws of the United States,” according to 28 U.S. Code § 453 – Oaths of justices and judges, right?
See also: How to Legal: What’s a Table of Authorities? Lawyer submits case law that’s not applicable in a Defamation case. Dirty Tricks? Oops?
Below is what Hon. Williams wrote on the docket depicting what happened in the case based on the pleadings. It should be reasonable to assume that judges accurately portray what happened, but that may not occur in a court with an oath-breaking judge. Oath-breaking judges apparently are counting on people to not read all the filings where their misconduct and judicial malpractice can be identified.
“The Court grants defendants’ motion for a more definite statement. Plaintiffs are granted 14 days to file an amended complaint specifically identifying the facts in the contested article they allege are false, and to allege facts which, if proven, would show those facts to be false. Signed by Judge CJ Williams on 5/12/2020. (pac) (Entered: 05/12/2020)”Nunes v. Lizza (5:20-cv-04003-CJW)
So the cycle repeated because Judge Williams granted the Defendants’ Motion for More Definite Statements for the reasons set forth above.
He did not violate Canon 3A(5) by insisting that the Parties re-do their filings when the case was ripe for review. He did not fail to issue his ruling.
So Nunes et al v. Lizza et al moved to Round 2 for reasons set forth above: First Amended Complaint, 2nd Motion to Dismiss, 2nd Opposition to Motion to Dismiss, then 2nd reply.
Again, you can read all the court filings at Courtlistener.
Hon. C. J Williams keeps the case moving forward
On September 11, 2020, Hon C.J Williams filed a second detailed ruling, keeping the case moving forward pursuant to Canon 3A(5). He cited the statements the plaintiff alleged were false after the Plaintiffs amended their complaint. He showed his even-handedness again by addressing the plaintiffs’ and defendants’ arguments. He did not ignore pleadings or misrepresent them.
Hon C.J Williams wrote in part:
Defendants argue that none of the identified statements are defamatory for various reasons. Defendants address the statements individually (Doc. 37, at 15–35), but plaintiffs’ brief largely ignores the individual statements and instead focuses on the implication of the Article as a whole (Doc. 41, at 12–22). In this section, the Court will address the individual statements or groups of statements in the order presented in the amended complaint. In the following section, the Court will address plaintiffs’ arguments about the alleged implications of the Article.Nunes v. Lizza (5:20-cv-04003-CJW), Docket No. 50 p. 11
Briefly, the Court determined that one statement was capable of defamatory meaning —defamation per se. Thus, the statement was either provably true or false meeting the elements of defamation per se in Iowa.
Remember Defamation per se from an earlier installment of How to Legal?
In How to Legal: Freedom of Speech. What is slander? What is libel we went over where you can find the defamation laws and elements in different states.
In Iowa, as is typically the case where other states recognize defamation per se…
Under Iowa law, two types of defamation exist, defamation per se and defamation per quod. Defamation per se consists of statements the law considers to be automatically damaging and for which damages need not be proven.Iowa Defamation Laws Explained, O’Flaherty Law
The following types of statements generally qualify as defamation per se:
Statements accusing the plaintiff of a crime;
Asserting that the plaintiff has a “loathsome” communicable disease;
Asserting the plaintiff is unable to do their job or lacks integrity;
Statements that harm the plaintiff’s profession or employment;
Statements accusing the plaintiff of adultery or fornicationIowa Defamation Laws Explained, O’Flaherty Law
ARE YOU STUCK IN A MEDIA ECHO-CHAMBER, or know someone who is, and need help breaking free? Take The Break Free from Media Echo-Chambers 30-Day Challenge.
There are problems on both sides of the political aisle and real problems that need to be fixed. Acting on fake news just creates more problems that need to be fixed.
Read Hon. C.J. Williams second order here to learn more about defamation laws. In addition, by reading the court filings you can confirm that Judge Williams cited all the statements in question, with applicable (relevant) case law, read in context.
He moved forward with the true, false, yes, no, statement. The statement where the plaintiff would not need to show damages if the statement was proven false (defamation per se). He did not misrepresent any pleadings, take any out of context, or omit any either.
So what does this tell us? We learn, that according to the Code of Conduct for U.S. Judges, and the oaths judges take, Hon. C.J. Williams is faithfully and impartially discharging his duties in this case. Thus, he upheld and protected the Constitution of the United States, 5 U.S.C. § 3331, and the laws of the United States —whether you like or dislike the outcome of his ruling or either party.
Moreover, given defamation cases are typically big money, potential multi-million dollar damage cases, Hon. C.J. Williams has demonstrated he’s not one of those unethical judges like we learned about from the Reuters and Wall Street Journal investigations.
See also for e.g.: “Texas Judge Who Accepted Bribe Money In Beer Boxes Headed To Prison,” CBS, September 26, 2019.
As we can see here, the damages are higher when a defamation case involves a whistleblower, see: “Judge Adds $5M to McQueary’s $7M Verdict Against Penn State: McQueary testified he reported that Jerry Sandusky sexually abused a boy in a shower. The judge found once it became public Penn State humiliated him,” Associated Press, November 30, 2016.
So it’s a big deal when officers of the court throw a multi-million dollar defamation case for some unjust gain, right? They tell on themselves when they do not faithfully apply applicable case law, yes?
Who are all the officers of the court?
According to Nolo, the following are all the officers of the court: “Any person who has an obligation to promote justice and uphold the law, including judges, clerks, court personnel, police officers, and attorneys (who must be truthful in court and obey court rules).”
Okay, that was a lot of reading. Let’s pause for a musical interlude. Stretch, and move around because next we’ll see a magistrate judge in this case faithfully discharge his duties when he enforced the model rules of professional conduct governing lawyers, as all ethical judges would do according to their oaths when they are notified that there was a problem(s).
For me, my music break is Simple Minds, “Someone, Somewhere (in Summertime).” What about you? See: Simple Mind’s official website.
Will a Magistrate Judge give a pro hac vice attorney a free pass to violate the Model Rules of Professional Conduct?
Fast forward to a deposition in Nunes v. Lizza, where, for a lack of better words, things appear to have gone astray when the Defendants tried to obtain evidence that the alleged defamatory (false) statement was true.
In brief, after taking a deposition, the attorneys for defendant Lizza and Hearst notified the Magistrate Judge assigned to the case that there were some problems.
What happened is kinda wild, so it’s best to read Magistrate Judge Mark A. Roberts 8-page order at Docket No. 119 which lays it all out.
This way, you can also see the rules and applicable case law governing attorneys that Magistrate Judge Mark A Roberts cited. By doing so, you can verify that Magistrate Judge Mark A Roberts is conducting proper proceedings by ensuring that the Model Rules of Professional Conduct governing attorneys will not be broken in his courtroom in violation of Rule 3.4, among other rules. Rule 3.4 reads in part.
A lawyer shall not:(a) unlawfully obstruct another party’ s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;ABA Model Rules of Professional Conduct
Magistrate Judge Mark A Roberts wrote, in part:
Because of Judge Williams’s ruling, the sole surviving claim is for defamation arising from Defendants’ allegedly false statements that Plaintiffs knowingly employed undocumented or unauthorized workers. Thereafter, discovery focused on the immigration status of Plaintiffs’ employees, including, among other things, Plaintiffs’ I-9 documentation and records in the possession of the Social Security Administration. Defendants noticed the depositions of six of Plaintiffs’ current employees and had them served with subpoenas duces tecum that required them to bring identification to their depositions. Plaintiffs’ counsel, Steven S. Biss, accepted service of the subpoenas on behalf of the employees, but Plaintiffs arranged for separate counsel, Justin Allen, to represent the deponents. F.S.D. was the first such witness to be deposed on May 12, 2021.
While Defendants’ counsel was questioning F.S.D. about his purported signature on various documents, Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document. [F.S.D.] — ” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Mr. Biss then interrupted stating, “Hold on. Hold on. Can we go off the record for just a minute? I’d like to talk to Justin before we do this.” (Id. (Dep. p. 72).) In fact, the deposition was delayed for much more than just a minute. More than two hours later, the deposition resumed. When Defendants’ counsel attempted to make record, Mr. Biss interrupted him several times insisting that Mr. Allen would make a statement and the deposition would be rescheduled. Once Mr. Biss got his way, Mr. Allen stated,
I am not going to allow [F.S.D.] to answer that question because when we left it I advised him to invoke his Fifth Amendment right. We took a break. We went off the record, and we’ve had several conversations with lots of people and I’ve talked to [F.S.D.], and as of now I am no longer representing him. I am not his lawyer.
(Id. at 21 (Dep. pp. 74-75).) The depositions were then halted.Magistrate Judge Mark A. Roberts Order, Docket No. 119, p. 1-2.
For your convenience, the following are excerpts where Magistrate Judge Roberts admonished the Plaintiffs’ pro hac vice attorney’s conduct “to avoid a repetition of this problem.” Based on the rules, judges who give a lawyer a free pass to keep repeating any problems are showing you they are in the tank with that lawyer and that lawyer gets a free pass to keep repeating the misconduct.
It reads in part:
This Court has had occasion to provide instruction on appropriate behavior:
The Federal Rules of Civil Procedure, and cases applying those rules, provide very clear guidance about how an attorney (and a witness) should behave during a deposition. Rule 30(c)(2) states that a deponent must answer all deposition questions, even if his or her attorney objects, unless the attorney expressly instructs the deponent not to answer or moves to suspend the deposition. See Fed. R. Civ. P. 30(c)(2). If counsel for a deponent believes that a question is inappropriate, he or she has two choices: object to the question and allow the witness to answer, thus preserving the objection, or instruct the witness not to answer. The second option is appropriate only to (a) preserve a privilege, (b) enforce a court ordered limitation or (c) bring a motion to terminate or limit the deposition on grounds that it is being conducted in bad faith or in order to unreasonably harass or embarrass the deponent. See Fed. R. Civ. P. 30(c)(2) and (d)(3)(A). It is not appropriate to instruct a witness not to answer on the basis of relevance.Magistrate Judge Mark A. Roberts Order, Docket No. 119, p. 4-5.
To avoid a repetition of this problem, Plaintiffs’ attorneys are adjured to read the Van Stelton decision. In addition, they are ordered to comply with the Federal Rules of Civil Procedure and conform their behavior in future depositions to those rules.Magistrate Judge Mark A. Roberts’ Order, Docket No. 119. p. 6.
At this juncture, I decline to appoint counsel because Plaintiffs have represented that independent counsel has been retained to represent the employees. As I stated at the hearing, a lawyer admitted to practice in Iowa should be aware of his or her obligations under Rule 32:1.8(f)(2) of the Rules of Professional Conduct, which requires independence of professional judgment on behalf of a client, even if someone else is paying for those services. As I intended to convey at the hearing, if concerns arise about the exercise of independent judgment by the attorney replacing Mr. Allen, I may reconsider the necessity of appointing counsel.Magistrate Judge Mark A. Roberts’ Order,Docket No. 119., p. 6-7.
Remember every jurisdiction has its own rules. So while the rules are similar to the ABA’s Model Rules of Professional Conduct, there may be slight differences.
Here are Iowa’s Rules of Professional Conduct. You can cross reference them with the ABA’s model rules to see what I mean.
Thus, Magistrate Judge Mark A Roberts is another example of another judge who upheld and protected the Constitution of the United States, 5 U.S.C. § 3331, and the laws of the United States –whether you like or dislike the outcome of his ruling or either party.
This judge did not give an attorney a free pass to violate the Model Rules of Professional Conduct (governing attorneys) one time, let alone multiple times.
Judges who do not refer potential criminal conduct to the appropriate authorities violate Canon 3B(6)
To learn about other actions judges who live by their oaths, and who conduct proper judicial proceedings do when they encounter potential misconduct, including potential criminal conduct, see: Canon 3B (6):
Canon 3B(6). Public confidence in the integrity and impartiality of the judiciary is promoted when judges take appropriate action based on reliable information of likely misconduct. Appropriate action depends on the circumstances, but the overarching goal of such action should be to prevent harm to those affected by the misconduct and to prevent recurrence.
A judge, in deciding what action is appropriate, may take into account any request for confidentiality made by a person complaining of or reporting misconduct. See Rules for Judicial-Conduct and Judicial-Disability Proceedings, Rule 4(a)(6) (providing that “cognizable misconduct includes failing to call to the attention of the relevant chief district judge or chief circuit judge any reliable information reasonably likely to constitute judicial misconduct or disability. A judge who receives such reliable information shall respect a request for confidentiality but shall nonetheless disclose the information to the chief district judge or chief circuit judge, who shall also treat the information as confidential. Certain reliable information may be protected from disclosure by statute or rule. A judge’s assurance of confidentiality must yield when there is reliable information of misconduct or disability that threatens the safety or security of any person or that is serious or egregious such that it threatens the integrity and proper functioning of the judiciary. A person reporting information of misconduct or disability must be informed at the outset of a judge’s responsibility to disclose such information to the relevant chief district judge or chief circuit judge. Reliable information reasonably likely to constitute judicial misconduct or disability related to a chief circuit judge should be called to the attention of the next most-senior active circuit judge. Such information related to a chief district judge should be called to the attention of the chief circuit judge.”).
Appropriate action may include direct communication with the judge or lawyer, other direct action if available, reporting the conduct to the appropriate authorities, or, when the judge believes that a judge’s or lawyer’s conduct is caused by drugs, alcohol, or a medical condition, making a confidential referral to an assistance program. Appropriate action may also include responding to a subpoena to testify or otherwise cooperating with or participating in judicial or lawyer disciplinary proceedings; a judge should be candid and honest with disciplinary authorities. (underline mine)Code of Conduct for United States Judges
Update: Here is an example of a federal judge following the judicial canons from Bob Garrett of the Dallas Morning News Twitter.
BREAKING: Judge asks feds to probe possible child porn production at Bastrop home for sexually abused girls.— Bob Garrett (@RobertTGarrett) March 30, 2022
Also, @dallasnews has learned The Refuge has enjoyed high-level support from state government, including by @GregAbbott_TX and his wife.#txlegehttps://t.co/FWFkt3k5sO
Remember according to Nolo following are all the officers of the court: “Any person who has an obligation to promote justice and uphold the law, including judges, clerks, court personnel, police officers, and attorneys (who must be truthful in court and obey court rules).”
None of them are supposed to cover up potential crimes. All of them must promote justice and uphold the law. Every one of them.
Judges admonish lawyers to prevent any repeats of said conduct
So what have we learned?
In part, we’ve learned that ethical judges act when they see potential attorney rule violations, and/or potential attorney rule violations are brought to their attention.
Ethical judges don’t cover it up, defend it, or pretend it does not exist, and sit back and let an officer of the court break the rules, and their oaths, abuse and victimize a party seeking justice. Those who do are oath-breaking judges. These judges, according to the canons, also give the appearance of being in the tank with an attorney for some unjust gain.
Words matter. Ethical officers of the court matter. You never know how many people can be hurt by oath-breaking officers of the court, defamation, and falsehoods until you do.
Okay, let’s wrap this up.
I hope you feel empowered by this latest installment and it gives you an appreciation and respect for all the ethical, oath-following officers of the court, who stand firm against corruption when we know there are so many officers of the court who don’t.
As Judy Perry Martinez, the former president of the American Bar Association (ABA), wrote in the ABA Journal, “Protecting the Courts: Unfair attacks on judges undermine judicial independence, the rule of law,”
“No democracy can survive without an independent judiciary.”
Yes, and no one can obtain due justice in a proceeding with oath-breaking officers of the court so it’s in everyone’s best interest, (except for the oath breakers), that they all be exposed, held to account, and for due justice to be restored.
If you wish to keep following this case, you can at Courtlistener. It has taken a twist. See: Mike Masnick, “Judge Says Devin Nunes’ Family Has To Tell The Judge Who Is Funding Their Lawsuit Against Esquire & Ryan Lizza,” Techdirt October 27, 2021, and Law&Crime, among other media outlets.
Thank you for being a part of a solution to combating the fake news online crisis by becoming informed.
It’s time to step away from your computer and move around. We’ll end this latest How to Legal with another musical interlude.
For me, it’s Talk Talk “Living in another world,” and “Such a shame.” What about you? See Talk Talk’s Facebook page. RIP Mark Hollis. You brought joy and continue to bring joy to countless people’s lives through your music.
Nothing on this website may be construed as legal advice. While I have litigated as a pro se defamation plaintiff, I am not a lawyer. This information is for educational purposes. If you need legal advice please consult with a licensed legal professional.
If you would like to show support for my efforts to make the Internet a safer and more honest place you may send donations here. Thank you! If you are stressed out by fake news, real news, or for any reason, you might want to check out Stuff for Stress. Also, here’s some merch.
ARE YOU STUCK IN A MEDIA ECHO-CHAMBER, or know someone who is, and needs help breaking free? Take The Break Free from Media Echo-Chambers 30-Day Challenge.
There are problems on both sides of the political aisle and real problems that need to be fixed. Acting on fake news creates more problems that need to be fixed.
Lastly, if you see any typos or mistakes, kindly send me an email so I can fix it. Thanks. No text messages.
+ Updated to include Erik Ortiz, “Robed in secrecy: How judges accused of misconduct can dodge public scrutiny, NBC News, December 26, 2021, the Lincoln Project’s ad based on real-world events, whistleblower defamation damages; and Dallas Morning News reporting on a Federal Judge referring potential criminal conduct to the proper authorities.