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Engaging Co-Counsel Solely to Cause Recusal of the Judge Violates Rules of Professional Conduct and Warrants Discipline

Bar Association of Montgomery County Newsletter September 2016

In a case involving a federal judge ultimately impeached and removed from office, a Louisiana lawyer was recently disciplined for taking moves designed to force that judge’s recusal from a pending case. In re Mole, 822 F.3d 798 (5th Cir. 2016). Joseph Mole represented Lifemark Hospitals in protracted litigation with Liljeberg Enterprises in the United States District Court for the Eastern District of Louisiana. See In re Liljeberg Enters., 304 F.3d 410 (5th Cir. 2002). When Liljeberg retained Leonard Levenson and Jacob Amato six weeks before trial, Mole became concerned because they were close friends of the trial judge, Thomas Porteous. So Mole moved to recuse Judge Porteous, but Judge Porteous denied the motion. Mole then filed a writ of mandamus with the United States Court of Appeals for the Fifth Circuit, which denied the writ. Mole’s client remained afraid that the judge’s close personal relationship with opposing counsel would unfairly advantage the other side. Having failed in his efforts to gain direct relief from the judiciary, Mole came up with a different approach.

Mole asked fellow lawyer Don Gardner to join the trial team. Gardner was not experienced in the type of litigation that was the subject of the upcoming trial, but he was a close friend of the judge. Gardner later admitted “he was hired becauseLifemark ‘wanted to have a pretty face . . . someone who knew the judge.’” In re Mole, 822 F.3d at 800. Lifemark agreed to pay Gardner an initial retainer fee of $100,000 nd “an additional $100,000 severance fee ‘in the event that Judge Porteous withdraws or if the case settles prior to trial.’” Id. (footnote omitted).

The judge did not withdraw, a bench trial was held, and Judge Porteous took the case under advisement for nearly three years. He eventually ruled overwhelmingly in favor of Liljeberg” and that decision was “overwhelmingly reversed on appeal” by the Fifth Circuit. Id. at 801 (citing In re Liljeberg Enters., Inc., 304 F.3d at 469).

Then the real fun began. The Fifth Circuit reprimanded Judge Porteous for what it described as both criminal and unethical misconduct committed while presiding over the Lilijeberg litigation, including his denial of Mole’s motion or recusal. That same conduct led the House of Representatives to impeach Judge Porteous and the Senate to convict him and remove him from office. Id. At 801; see Jennifer Steinhauer, "Senate, for just the 8th Time, Votes to Oust a Federal Judge," N.Y.. Times, (Dec. 9, 2010), http://www.nytimes.com/2010/12/09/us/politics/09judge.html. Mole and Gardner testified before the Senate about Mole’s retention of Gardner on Lifemark’s behalf.

Unfortunately for Mole and Gardner, their testimony helped bring down not only Porteous, but also Mole and Gardner themselves. For after the impeachment proceedings, two judges in the Eastern District of Louisiana brought a disciplinary complaint against Levenson, Amato, Mole, and Gardner for acting “to improperly influence [Porteous] to achieve results that were prejudicial to the administration of justice, including receiving either favorable treatment for their respective clients or a prompt voluntary recusal,” all in violation of Louisiana Rules of Professional Conduct. In re Mole, 822 F.3d at 801 (footnote omitted) (internal quotation marks omitted). A local rule of the Eastern District of Louisiana applies the Louisiana Rules of Professional Conduct to lawyers practicing before that court.

The Eastern District referred the complaint to a disciplinary committee, which recommended that the court conduct a hearing. The matter was assigned to a judge, who conducted a hearing and “found that Mole ‘diligently represented his client at all times in a manner that is a credit to the profession,’ and that any misconduct by Mole was, ‘at most, “negligent” and time-barred’ under the disciplinary rules of the Louisiana Supreme Court.” Id. at 801. The hearing judge recommended that the en banc court of the Eastern District dismiss the charges against Mole.

The en banc court did not see things the same way. “It found that ‘the clear and convincing evidence introduced at the Senate hearing and before this Court establishes Mr. Mole selected and recommended Mr. Gardner to represent Lifemark because of Mr. Gardner’s close friendship with Porteous and with the intent to get Porteous recused.’” Id. The court also found that the severance fee was intended to incentivize Gardner to accomplish that objective. Id. The court concluded that Mole had violated Louisiana Rule of Professional Conduct 8.4(d) and (e), which provide:

It is professional misconduct for a lawyer to ... (d) Engage in conduct that is prejudicial to the administration of justice; (e) State or imply an ability to influence improperly a judge, judicial officer, governmental agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.1

The Eastern District suspended him from practicing before that court for one year, with six months deferred. In re Mole, 822 F.3d at 801. Mole appealed to the Fifth Circuit. After rejecting various procedural challenges raised by Mole, that court affirmed the decision of the Eastern District. The appellate court held that there was sufficient evidence to support the lower court’s finding that Mole had hired Gardner to prompt Judge Porteous’s recusal from the case. Id. at 803-05, 807.

The court also explained that it had “previously held that ‘a lawyer may not enter a case for the primary purpose of forcing the residing judge’s recusal.’” Id. at 805 (quoting McCuin v. Tex. Power & Light Co., 714 F.2d 1255, 1265 (5th Cir. 1983)). The court further explained that “[a] lawyer’s acceptance of employment solely or primarily for the purpose of disqualifying a judge creates the impression that ... the lawyer is available for sheer manipulation of the judicial system.... To tolerate suchgamesmanship would tarnish the concept of impartial justice.’” Id. (quoting McCuin) (footnote omitted). While Mole did not accept employment so that he could disqualify the judge, he employed Gardner “to achieve the same purpose.” Id. This, the court concluded, was improper:

A common sense application of McCuin shows that this is improper: If a lawyer may not enter a case to force the presiding judge’s recusal, then it would be irrational to argue that a lawyer could simply hire another lawyer to force the recusal. Thus, we conclude that the action of hiring an attorney to motivate a recusal is prejudicial to the administration of justice and implies an ability to improperly influence a judge in violation of Louisiana Rules of Professional Conduct 8.4(d) and (e).

Id. at 805-06 (emphasis in original).

1 Maryland Rule of Professional Conduct 8.4(d) and (f), on the other hand, are somewhat different, providing:

It is professional misconduct for an attorney to: (d) engage in conduct that is prejudicial to the administration of justice; (f) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Maryland Attorneys’ Rules of Professional Conduct or other law.

Brad McCullough represents businesses and individuals in a wide variety of cases in federal and state trial and appellate courts, as well as before arbitration panels and in mediation proceedings. For more information, contact him at 301-657-0734 or jbmcullough@lerchearly.com.

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