Philadelphia judicial ethics complaint shows value of local bar association investigations

ABA Journal Law News Now reported last week about the troubles brewing in Philadelphia for a local judge accused of making misrepresentations on candidate questionnaires.

The October 25 Law News Now post, by Debra Cassens Weiss, links to the Pennsylvania Judicial Conduct Board Complaint against Judge Thomas M. Nocella. Apparently, in Pennsylvania, candidates for judicial office are required to respond to questionnaires which, inter alia, inquire into the prospective judges' finances and litigation histories. These questionnaires are used to determine whether a candidate receives a "qualified" or "not qualified" rating.

Judge Nocella made some disclosure of financial difficulties and past lawsuits and, at one point, was rated unqualified as a result. He successfully appealed the initial unfavorable rating -- but it appears that the Judicial Conduct Board is contending that, at best, Nocella minimized the extent of his difficulties. According to Weiss's post, Judge Nocella stands accused of failing to disclose "two Internal Revenue Service liens against him for more than $469,000, a personal bankruptcy filing, a contempt finding for disobeying court orders stemming from his representation of a political action committee, and 24 cases in which he was a defendant or a respondent." The failure to make complete and accurate disclosures on the questionnaire can result in disciplinary action in Pennsylvania.

A similar situation may be unlikely to occur in Cook County. Yes, judges and prospective judges get into financial difficulties from time to time in Cook County, just as anyone anywhere might. But, in Cook County, when a judicial candidate steps forward or a judge seeks retention, the bar associations investigate the responses that judicial hopefuls provide. Edward Austin, a former Chair of the Judicial Evaluation Committee of the Chicago Bar Association, explained, "The cornerstone to the CBA evaluation process is the investigation. Our investigators work tirelessly to not only contact listed references but also references not listed by the Candidates. Additionally, a Google search, Cook County Circuit Court Clerk name check for pending or past litigation and an ARDC search are conducted to uncover any and all information pertinent to someone seeking a judicial post. There have been many instances in the past where candidates have not included or omitted information on their questionnaire that was subsequently found during the investigation process. The omissions have included lawsuits, ARDC complaints, and bankruptcy filings."

While he agreed that record searches would likely pull up some discrepancies in a less-than-candid candidate's disclosures, Michael A. Strom, the President of the Decalogue Society of Lawyers, a member of the Alliance of Bar Associations for Judicial Screening, was uncertain that all of a candidate's financial problems could be ferreted out, even with a vigorous investigation. "I could easily see practitioners in the Chicago area having problems totally unrelated to their area of concentration, and unknown to their colleagues," Strom said. "For example, I know many veteran personal-injury and insurance defense practitioners from years of practice in that field. When bar association judicial screeners call to ask about a candidate, it is extremely unlikely that I would know about any tax problems or IRS liens. Multiply that one interview by 20 and throw in interviews of judges before whom the candidate has practiced, and it would not be surprising to see personal debt, bankruptcy, domestic relations issues, and other issues remaining unknown to the attorneys who would best know the candidate."

Large urban areas and their correspondingly large judicial systems "tend to make individual judges less public figures, less well-known to the bar and to voters who may be called to vote on judicial elections or retention," Strom said. "We often hear how judicial elections in rural or lightly populated regions are [more] effective since people in those communities have a greater tendency to know their neighbors, their community leaders - not just professionally but personally," Strom added. "Accordingly, attorneys in Calhoun County would be much more likely to know about the sort of issues covered in the ethics complaint concerning Judge Nocella whether [or not] the disclosures were made in application forms."

Al Durkin is the Co-Chair of the Illinois State Bar Asssociation's Judicial Evaluation Committee and a member of the Alliance board. "Judicial candidates in Cook County are very concerned when they come before the Alliance," Durkin said. "Candidates do their best to provide information in order to allow the member bars to make as informed a decision as possible."

Every candidate is specifically asked if he or she is or has been a party in any litigation, Durkin said, adding that a negative answer to this question would probably be "a death knell" to the candidate's chances for a favorable evaluation if investigation revealed that the candidate attempted to conceal involvement in a number of legal matters.

Ed Austin stressed that candidates who seem to have provided incomplete information are given an opportunity, under the CBA's practice, to explain themselves. In such cases, Austin said, candidates "are notified of our discovery prior to a hearing pursuant to Rule 22 and the issue is addressed at the hearing if they seek to continue with the evaluation." Durkin said the Alliance follows a similar procedure. "In fairness," Durkin said, "there might be a situation where a candidate did not know" -- a code violation suit involving a building managed by the candidate's spouse, for example. The Alliance hearing can also be postponed "to give the candidate time to put together a response," Durkin said.

Austin noted that favorable rating from the CBA can be pulled if information previously concealed comes to light. The CBA Board of Managers and the Executive Committee can "withdraw a past finding if new information is brought to light that was not disclosed during the original evaluation." Alliance members have also changed ratings in the past.

"Non-disclosure is taken very seriously" by all judicial evaluation committees in Cook County, Austin said, "and, as is often the case, the cover up is worse than the crime."

The Pennsylvania practice appears to rely on candidate self-disclosure -- and one would certainly hope (and expect) that persons seeking judicial office would be honest and truthful. Our Cook County judicial screening process also depends on self-disclosure. But in our practice, as Ronald Reagan said to Mikhail Gorbachev, we trust, but verify.