Fordham Law


Former Judges in Court: When 'Your Honor' Becomes Your Problem

Joel Cohen in Law.com, December 06, 2010

Media Source

Every former president is entitled to the honorific "President," whether or not you liked him in office or in his post-presidency. Whether it's President Carter, Bush(es) or Clinton, wherever they go, whatever they do, they will deserve the word "president" before their name. Ex-governors and ex-mayors also lay proper claim to the title (though maybe not Jerry Springer, who probably doesn't even want it).

So, what about ex-judges? They, too, seem to maintain their titles after they leave the bench due to mandatory retirement, government positions, the financial lures of private practice or new beginnings altogether. Their secretaries answer their phones "Judge X's office," their mail is directed to "Judge X," and they are introduced or glad-handed at bar functions or cocktail parties as "Judge" or "Justice" or "the Honorable." In fact, a Fox News commentator is called "Judge," even when commenting on sports, or maybe even the weather.

Ok, so no big deal. And not a big deal that former Circuit Judge Griffin Bell was called "Judge" Bell when U.S. Attorney General under President Carter, or former District Judge Louis Freeh was "Judge" Freeh when serving as FBI Director under President Clinton. Indeed, Ken Starr, Clinton's bête noir, was routinely referred to as "Judge" Starr even when he served as the special prosecutor investigating the president. Current Attorney General Eric Holder seems an exception, in that he is not generally referred to as Judge Holder, though he too is a former judge.

But most erstwhile judges who remain in the law -- excluding those who become arbitrators, mediators, and others who preside at alternate dispute resolution fora, where they basically occupy the role of judge -- may find their way into the courtroom as lawyers. The value they add to law firms and clients as courtroom lawyers, whether in pleadings, motions, arguments or before a jury, is, at least in part, because they are known in the legal community, and to the presiding judge, as part of the greater fraternity of the judiciary. The honorific, and what it signifies, may often carry a great deal of weight. Indeed, "honorific" is defined as "belonging to or constituting a class of grammatical forms used in speaking to or about a social superior" -- as malignantly aristocratic as that may sound.

Of course, sometimes the titular influence backfires. The presiding judge may not appreciate being lectured by the litigating ex-judge on how she would have handled it in her courtroom. For example, when a former judge told a sitting judge on behalf of his client, an attorney in a famous criminal contempt case, that "my client's conduct was the mistake of a young, inexperienced man -- you and I both could have done the same thing," the presiding judge basically retorted, "Maybe you, not me -- six months." There is and should be disequilibrium in the courtroom:  in that venue, there is only one judge.

But those are probably the exception. The truth is, when a former judge walks into the courtroom she still often wears the halo of her former status. And while one can easily understand that it would be flatly improper to refer to an ex-judge as "Judge" before a jury, just as it would be improper to allow a litigator who is coincidentally a priest to wear his collar in front of a jury and thereby gain the benefit of what his halo brings to the table, it really can't end there. Just imagine being a civil litigant, no matter how able or prominent your own lawyer, and hearing the presiding judge referring to your lawyer's adversary as a judge. Would you as a civil litigant believe that you are getting fair and equal justice if the presiding judge refers to you as Counselor and the gladiator on the other side as Judge so-and-so?

For that exact reason, the American Bar Association opined that a former judge returning to legal practice may not sign his pleadings as "Judge," and may not encourage others to refer to him as "Judge X" or "Your Honor" in the courtroom or otherwise in legal proceedings (ABA Formal Op. 95-391). In fact, ABA Advisory Opinion No. 72, stating that "federal judges [are] returning to private practice in increasing numbers," underscores the issue by placing an obligation on sitting judges to enforce the rule.

But the problem doesn't end there. The issue recently came into sharp focus in a controversial litigation in New York. A trial judge in the Supreme Court of Queens County, Justice Joel Blumenfeld, was extremely troubled by the pre-arraignment interview procedure employed by the district attorney's staff, in which, it has been claimed, prosecutors routinely solicit statements from arrested persons just a few minutes before the arrestees are assigned counsel and arraigned. Justice Blumenfeld, in the context of a confession suppression hearing, decided to hold a hearing on the ethics of the DA's practice. The judge asked a legal ethics professor, Ellen Yaroshefsky, to prepare an expert report exploring and analyzing the practice, as an aid to the court.

Yaroshefsky's report was extremely critical of the prosecutors' conduct. So disturbed was the Queens DA by the judge's plan to hold a hearing and by the conclusory nature of the report, that his office instituted a rare mandamus proceeding to enjoin the hearing, arguing that the Supreme Court lacked authority to evaluate the prosecutors' ethics. The DA's moving papers castigated Yaroshefsky as an activist who favored criminal defendants and made several ad hominem references to a prior representation and her client in that matter, former attorney Lynn Stewart.

Queens District Attorney Richard Brown, who is commonly referred to as Judge Brown, is a former Justice of the Appellate Division, 2nd Department, the court in which the mandamus was properly brought. Of course, everyone on his former court and elsewhere in the system he continues to habit knows his former status, even if he doesn't sign the pleadings and isn't referred to in court as "Judge."

The problem arose here: In support of the ethical propriety of his Queens Central Booking Program of unrepresented defendants, District Attorney Brown offered his own papers supporting his mandamus petition to his former court. In a one-two punch, he also retained, pro bono, a distinguished, retired judge of the Court of Appeals (New York's highest court) and former law school dean, Joseph Bellacosa, to offer an additional affidavit. Bellacosa's opinion focused on what he deemed the impropriety of Yaroshefsky's report, finding it "puzzling, unfounded and ironically bordering on irresponsibly unprofessional conduct." Bellacosa's significant credentials and accomplishments in New York's appellate courts, including his Court of Appeals opinions on legal ethics, buttressed the force of his report to the court whose decisions he himself used to review. The district attorney's office papers kept reminding their readers precisely who was on their side, i.e., that they had a noted "judge" in their corner. They basically trotted out the affidavits, dressed up in black robes.

Justice Blumenfeld and Professor Yaroshefsky met the DA's expert with a counter-expert: Lawrence Fox, a law firm partner in a significant law firm, former chairman of ABA's Standing Committee on Legal Ethics and Professional Responsibility and visiting lecturer on legal ethics at Yale Law. Pertinent here, and putting aside whether (Judge or Dean) Bellacosa or Fox is right on the merits, Fox's amicus brief said the following about Bellacosa:

Finally, Yaroshefsky amici cannot permit the petitioner's constant references to "Judge" Bellacosa, and the characterization of his views go unaddressed. The way the District Attorney describes it, one would think this court should rein in Justice Blumenfeld because a far higher authority, "Judge" Bellacosa, has spoken. But in fact this is improper advocacy based on the participation in this proceeding by a retired judge. At the point where "Judge" Bellacosa is providing his opinion, he is just another lawyer, laboring in the vineyard the same way amici are. And to continue to treat him as if he were a judge and his opinion entitled to some exalted status by virtue of that judgeship, is clearly contrary to the way former judges who practice law should be treated.

Of course, Bellacosa doesn't call himself "Judge" Bellacosa in his affidavit nor encourage the Appellate Division justices who will decide the mandamus petition to do so. He does, of course, makes very clear precisely who he is by virtue of his important works on the courts, and we don't quarrel here with his conduct in submitting such an affidavit as he did. However, far more patently, the district attorney's office time and time again in its papers makes clear precisely who their expert is -- by name, "Judge" Bellacosa -- lest the appellate court forget who was on the DA's side.

Those who have served as judges are indisputably entitled to respect by the bar, whether they left the bench by reaching a mandatory retirement age or by opting to continue their careers as practicing lawyers. But when judges retire and decide to appear in a courtroom or in court papers, their adversaries are also entitled to respect, in the form of a level playing field. If the ex-judge is not wise enough to go out of his or her way to ensure that no undue respect is expected or allocated by dint of prior judicial status, as a number of them do, then the still-sitting judges must do it.

Judge Bellacosa, whom we go out of our way to identify with that honorific here, in a venue where he fully deserves it, has made significant accomplishments in his career, which continued as a law school dean. But when he, and those like him, are proffered to a court as an expert, as Fox argues, he is just the same as the rest of us: He takes off his pants one leg at a time. Former judges are men and women who were once on the bench and who are, when litigating or experts, lawyers now, must be treated as such when they, or their opinions, show up in court.

There can be no dispute that the accolades on one's resume are fair game in assessing professional pedigree, particularly in law. Yet, we must not allow a former judgeship to bestow undue influence or confer exalted status upon a court. It requires effort, from every member of the bench and bar, to embrace ex-judges in a courtroom setting while resisting attempts to offer or obtain leverage through improper advocacy, of the type we discuss here. The alternative to letting ex-judges fairly participate in courtroom proceedings is that the system would lose some of its best legal minds. Many private law firms prohibit their partners from practicing law after they retire from the firm. We do not ask the same of judges after they retire from the bench, nor should we need to, so long as we treat them right.

Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He teaches Professional Responsibility at Fordham Law School. He is also the author of "Truth Be Veiled," released in July 2010 by Coffeetown Press. Katherine A. Helm, Ph.D., is a former law clerk to a U.S. Court of Appeals judge and a U.S. District Court judge and is returning to private practice in New York. This column is the latest in a monthly series by Cohen and Helm for Law.com. The views expressed are the personal opinions of the authors.