Legal Ethics

Was Judge's Opinion Unethical?


Should a judge face an ethics complaint based simply on what he writes in a court opinion? No way, says Bruce Rogow, a law professor at Florida’s Nova Southeastern University. But attorney Wally Pope says the answer to that question depends on what the opinion says.

The two lawyers are opposing counsel in an unusual ethics complaint made against a Florida state appeals court judge over the opinion he wrote criticizing the ethics of a colleague on the appellate court bench. (As discussed in an earlier ABAJournal.com post, Judge Michael Allen’s opinion claimed that his colleague, Judge Charles Kahn, had improperly participated in an appeal of a politician’s bribery conviction.) Yesterday, the two attorneys appeared before Broward Circuit Court Judge Paul Backman, at a hearing on the state Judicial Qualification Commission’s ethics complaint against Allen, reports the Miami Herald.

Rogow, who represents Allen, asked Backman to dismiss the case, saying it is ”unprecedented” to file an ethics complaint against a judge based only on what he wrote in a legal opinion. Further, an ethics charge against a sitting judge is appropriate only if his alleged actions are so severe that they could warrant removal from the bench, Rogow contended.

But Pope, who represents the judicial commission, said Allen’s criticism of Kahn in the opinion was appropriately the subject of an ethics complaint against Allen. That’s because Allen’s comments undermined the public’s confidence in the judiciary and suggested Kahn was corrupt, even though no one had asked Kahn to recuse himself, Pope argued. He also said Allen, when he criticized Kahn, relied on unverified newspaper articles.

Backman said he plans to rule ASAP on a motion to dismiss.

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