New York Law Review

Tag: Lack of Candor

In re Mason, 100 N.Y.2d 58 (2003): Judicial Misconduct and Attorney Escrow Accounts
In re Mason, 100 N.Y.2d 58 (2003)

Judges must be held to a higher standard of conduct than the public at large, and misuse of an attorney escrow account, coupled with a lack of candor and failure to cooperate with investigations, warrants removal from judicial office.

Summary

The New York Court of Appeals reviewed a determination by the Commission on Judicial Conduct to remove Justice Reynold N. Mason from the Supreme Court. The charges stemmed from Mason’s misuse of his attorney escrow account, both before and after assuming his judicial role, along with a lack of cooperation and inconsistent statements during the Commission’s investigation. The Court of Appeals independently reviewed the evidence and determined that Mason’s actions constituted serious misconduct justifying removal from office. The court emphasized the heightened standard of conduct expected of judges and the significance of maintaining the integrity of attorney escrow accounts.

Facts

Reynold N. Mason, while a practicing attorney, vacated a rent-stabilized apartment in 1992. He facilitated his brother-in-law’s occupancy despite the landlord’s objections. The brother-in-law made rental payments to Mason, designated “as attorney,” totaling over $15,000. Mason deposited at least $7,000 of these funds into his attorney escrow account. He then used these funds for personal expenses, including payments to himself, creditors, and in cash withdrawals. Even after being elected as a Civil Court Judge in 1995, Mason continued to use the account for personal matters.

Procedural History

The Commission on Judicial Conduct sustained five charges of misconduct against Mason and determined he should be removed from office. Mason challenged the determination, arguing that a federal court decision invalidated some of the rules he was found to have violated. The Court of Appeals rejected this argument, noting it was not bound by the federal district court decision. The Court of Appeals then conducted its own review of the record and upheld the Commission’s determination, ordering Mason’s removal.

Issue(s)
1. Whether Justice Mason’s misuse of his attorney escrow account, including commingling funds and using the account for personal expenses, constitutes judicial misconduct.
2. Whether Justice Mason’s lack of cooperation with the Commission’s investigation and his inconsistent statements warrant disciplinary action.
3. Whether the appropriate sanction for Justice Mason’s misconduct is removal from judicial office.
Holding
1. Yes, because an attorney may not commingle personal funds with funds held in trust for others, nor may an attorney use an escrow account to pay personal expenses.
2. Yes, because failure to cooperate with the Commission’s investigation and lack of candor compound the seriousness of the underlying misconduct.
3. Yes, because the misconduct, viewed in light of the higher standard of conduct expected of judges, warrants removal from office.
Court’s Reasoning

The Court of Appeals emphasized the established principle that attorneys cannot commingle personal funds with client funds or use escrow accounts for personal expenses. The court noted the confusion that arises when attorneys fail to properly safeguard funds deposited in an escrow account. Whether Mason held the rent money in trust for the landlord or collected it under a sublease, his deposit of the funds into his attorney escrow account and subsequent use for personal expenses constituted a serious violation. The Court stated, “[C]onfusion regarding the legal interests of an attorney and third parties ensues when an attorney fails strictly to segregate personal or business funds from trust funds or to identify and properly safeguard funds deposited in an escrow account.”

The court further highlighted Mason’s lack of cooperation with the Commission’s investigation and his inconsistent explanations as aggravating factors. The court directly quoted, “[J]udges must be held to a higher standard of conduct than the public at large.” The Court of Appeals conducted its own plenary review of the facts and law, ultimately concluding that removal was the appropriate sanction. They distinguished this as more than simply echoing the Commission’s analysis.
May 1, 2003
In re която, 89 N.Y.2d 252 (1996): Judicial Removal for Deceptive Conduct During Investigation

In re Spargo, 89 N.Y.2d 252 (1996)

A judge may be removed from office for engaging in a pattern of deceptive and untruthful behavior during a judicial conduct investigation, even if the initial misconduct that triggered the investigation might not, on its own, warrant such a severe sanction.

Summary

The New York Court of Appeals affirmed the removal of a Civil Court Judge and Acting Supreme Court Justice, Spargo, based on findings by the State Commission on Judicial Conduct. The Commission determined Spargo made inappropriate remarks to a female law intern and then engaged in deceptive behavior during the ensuing investigation, including providing false information during a screening process for a potential Supreme Court appointment. The court held that while the initial inappropriate remarks might not have warranted removal, Spargo’s subsequent dishonesty and lack of candor demonstrated a lack of fitness for judicial office, justifying the sanction.

Facts

A complaint was filed against Judge Spargo concerning a note he passed to his court attorney regarding the physical attributes of a female law intern. The complaint also alleged that Spargo jokingly suggested to the intern that she remove an article of clothing in his presence. During the investigation, while seeking an interim appointment to the Supreme Court, Spargo answered “no” to a question on the Governor’s Judicial Screening Committee questionnaire asking if he had ever been the subject of any inquiry or investigation by a federal, state, or local agency. He also delayed returning a waiver of confidentiality regarding Judicial Conduct Commission records to the State Senate Judiciary Committee and falsely told staff counsel for the committee that he was not the subject of any complaints before the Commission.

Procedural History

The State Commission on Judicial Conduct determined that Judge Spargo violated rules requiring judges to uphold high standards of conduct and promote public confidence in the judiciary, recommending his removal from office. A Referee conducted a full evidentiary hearing. The Commission’s determination was based on the Referee’s findings and the Commission’s own review. Judge Spargo then sought review of the Commission’s determination in the New York Court of Appeals.

Issue(s)

Whether the State Commission on Judicial Conduct’s determination that Judge Spargo should be removed from office is supported by a preponderance of the evidence, and whether the sanction of removal is appropriate given Spargo’s conduct.

Holding

Yes, because the Commission’s determination was supported by a preponderance of the evidence, and the sanction of removal was appropriate, considering Judge Spargo’s pattern of evasive, deceitful, and untruthful behavior, which evidenced a lack of fitness to hold judicial office.

Court’s Reasoning

The court deferred to the credibility determinations of the Referee and the Commission, finding no reason to disturb their findings that Spargo’s testimony was not credible. The court found that Spargo’s inappropriate note and suggestion to the intern, while deserving of sanction, would not, standing alone, justify removal. However, the court emphasized that Spargo engaged in a pattern of evasive, deceitful, and untruthful behavior, particularly in his attempts to conceal the pending investigation while seeking a Supreme Court appointment. The court rejected Spargo’s explanations for his false statements on the questionnaire and to the Senate Judiciary Committee staff. The court reasoned that “deception is antithetical to the role of a Judge who is sworn to uphold the law and seek the truth,” quoting Matter of Myers, 67 NY2d 550, 554. The court distinguished Spargo’s conduct from instances of mere poor judgment, emphasizing that Spargo was motivated by personal gain to dissimulate. The court acknowledged that removal is reserved for truly egregious conduct, but held that judges must be held to a higher standard, and Spargo’s actions warranted the sanction of removal.

February 17, 1998
In the Matter of Gelfand, 70 N.Y.2d 211 (1987): Judicial Misconduct and Abuse of Power

In the Matter of Gelfand, 70 N.Y.2d 211 (1987)

A judge’s misuse of judicial power to pursue a personal relationship and subsequent lack of candor during judicial conduct proceedings warrants removal from office, even if some of the allegations considered were based on uncharged conduct.

Summary

Bertram Gelfand, Surrogate of Bronx County, was charged with judicial misconduct stemming from his actions related to a former law assistant with whom he had an affair. The charges included misusing his position to prolong the relationship and later seeking vengeance when the assistant ended it. The State Commission on Judicial Conduct recommended removal, finding Gelfand lacked candor during the proceedings. The New York Court of Appeals accepted the determined sanction of removal, holding that Gelfand’s conduct violated the standards of integrity and propriety required of judicial officers and undermined public confidence in the judiciary.

Facts

Gelfand had an extramarital affair with his law assistant. After she ended the relationship, Gelfand fired her, emptied her office, and delivered her belongings to her home. He then made numerous phone calls, leaving obscene messages. He falsely identified himself as her attorney to gain access to her. He confronted her boyfriend and threatened to speak to the boyfriend’s employer (the Bronx County District Attorney) to get him fired. Gelfand also asked a Deputy Chief Administrative Judge to view any of the law assistant’s future employment applications unfavorably. He later met with the law assistant’s new employer and expressed his displeasure at them for hiring her without consulting him.

Procedural History

The State Commission on Judicial Conduct filed a formal complaint against Gelfand. A Referee sustained all charges and found Gelfand lacked candor. The Commission determined removal was appropriate. Gelfand sought review from the New York Court of Appeals.

Issue(s)

Whether the Surrogate of Bronx County’s actions, motivated by a personal relationship with a former law assistant, and his subsequent lack of candor during the proceedings, constituted judicial misconduct warranting removal from office.

Holding

Yes, because the Surrogate misused his judicial powers and failed to be candid, conflicting with the standards of integrity and propriety required of judges, undermining public confidence in the judiciary.

Court’s Reasoning

The court found that Gelfand misused his position as Surrogate to prolong a sexual relationship and later to exact personal vengeance. This conduct constituted violations of the Rules Governing Judicial Conduct and the Code of Judicial Conduct. The court emphasized that the effectiveness of the judicial system depends on public trust, which Gelfand’s actions undermined. Quoting the Code of Judicial Conduct, the court noted that judges must maintain integrity and impartiality. While acknowledging that the Commission improperly considered some uncharged conduct, the court held that the acts described in the formal complaint and proven at the hearing were sufficient cause for removal. The court stated, “By allowing his personal relationships to influence both his judgment and the administration of the court over which he presides he could not help but impair public confidence in his integrity and impartiality.” The Court also cited previous cases: “effectiveness of the judicial system is dependent upon the public’s trust and violations such as these which undermine that trust are so contrary to the ethical obligations required of Judges in conducting their personal and judicial duties that removal is essential (see, Matter of Aldrich v State Commn. on Judicial Conduct, 58 NY2d 279, 283; Matter of Shilling, 51 NY2d 397, 402; Matter of Kuehnel, 49 NY2d 465, 469).”

July 2, 1987