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February 06, 2017 Top Story

Judging Without Being Sworn In Can Jeopardize Bar License

Law clerk cannot act as judge without running afoul of ethical rules

By Kathy Milenkovski

A Chicago law clerk was suspended from the practice of law and was criminally indicted for impersonating a judge just weeks before the November election in which she was the unopposed democratic candidate to actually become a judge. She won the election but has been enjoined from taking the bench by order of the disciplinary commission pending resolution of the charges issued against her. Section leaders note her action was a clear ethics violation.

Law Clerk Dons Robe and Hears Traffic Cases

The clerk in question claimed to be shadowing the Cook County Circuit Court judge to learn more about the position in light of her upcoming election. The clerk maintains she donned the robe and sat in the judge's chair at the urging of the judge, who has been removed from the bench by special order of the court and assigned to desk duty while the Judicial Inquiry Board considers whether to take any action against her in connection with this matter. Circuit judge Valarie E. Turner, who allowed the clerk to take the bench, has been diagnosed with Alzheimer's disease and is "mentally unable to perform her duties," according to a complaint filed by the Illinois Judicial Inquiry Board.

According to the Illinois Attorney Registration and Disciplinary Commission, the clerk heard three traffic cases while posing as a judge. The clerk claims she didn't take any action in the cases and the real judge stood over her the entire time directing her, although others, including the sheriff's deputy in the courtroom, contradict the clerk's account of her participation.

The clerk was fired from her job by the chief judge and suspended from the practice of law until further order of the Illinois Supreme Court. The order handing down her interim suspension noted "in the event of respondent's election at the November 8, 2016, general election as a Circuit Judge of Cook County, First Sub Circuit, respondent is enjoined and restrained from taking the judicial oath of office or assuming the office of judge until further order of the Court." The clerk has also been indicted and charged with misdemeanor false impersonation and felony official misconduct, which carries a maximum five-year prison term. Nevertheless, she was allowed to remain on the ballot and went on to win her election.

Pretending to Be a Judge Is a Violation of Ethical Rules

"What she did violates the ethics rules. You can't pretend to be someone you're not," says John M. Barkett, Miami, Florida, a member of the ABA Standing Committee on Ethics and Professional Responsibility. Rule 8.4(c) of the ABA Model Rules of Professional Conduct says it's professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. It's pretty open and shut that you really shouldn't be doing that. As to what happens now, that's another story," he adds.

"If you're not a judge, you shouldn't be ruling on cases," agrees Scott E. Reiser, Roseland, New Jersey, cochair of the ABA Section of Litigation's Ethics & Professionalism Committee. "The judge should have known that. The clerk should have known that. We can't have people who aren't elected acting as the judicial officer. Only a judge can sit in the chair, wear the robe, and pass judgment. The judge can't delegate that responsibility to someone who wasn't elected," adds Reiser. "If the judge had legitimate training intentions, there are other ways to accomplish that. A clerk can learn the law by writing memos, observing procedure, and so on. But, a clerk can't put on the judge's robe. The judge has to wear the robe—that's an actual rule in New Jersey where I'm from," explains Reiser.

"This was not some random person off the street. She is a lawyer with a law license. She was seeking elected office. She was employed by the court. She should be held to a higher standard of conduct than someone who is not in the same position," suggests Emily C. Harlan, Washington, DC, cochair of the Section's Criminal Litigation Committee.

"The harm to the litigants in this case may be minimal, but the harm to the integrity of the system is substantial," says Reiser. "The reasons this is problematic are obvious, I think," says Harlan. "Even though it was just traffic court, it undermines the judicial system. It makes people apprehensive about a judiciary that is already facing criticism," she adds. "Let's not forget, there was a major lapse in judgment by the judge as well. She had been on the bench for years, and had been in private practice, and had served as a prosecutor before that. The judge should have known what her duties were," says Harlan. "She should have known better, too," she adds.

What's the Appropriate Punishment?

While Harlan believes some disciplinary measure clearly needs to be taken, Harlan questions whether it is overkill to criminally charge the clerk. "She's facing the potential permanent loss of her law license. She is likely to be barred from taking the bench, even if her license is not permanently suspended. She's lost her job. Isn't that punitive enough?" Harlan wonders, noting that "ultimately, that's a discretionary decision for the prosecutor."

"I find it a bit surprising that they are seeking criminal sanctions," agrees Barkett. "This seems like something the bar should handle," he adds, though he notes the Illinois Disciplinary Commission has made it clear in prior rulings that ethical rules are to be enforced on their terms, not on the basis of the motive. The clerk is mounting a vigorous defense and is claiming she did nothing wrong.


Katerina E. Milenkovski is an associate editor for Litigation News.

Keywords: Model Rule 8.4, ethics, judge, discipline

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