Eakin Case Expected to Bring Caution to Judges’ Behavior – James McErlane Quoted in The Legal Intelligencer – PA Law Weekly

April 5, 2016

Written by: Ben Seal

While ethics attorneys are split over the precedent established by the Court of Judicial Discipline’s recent order sanctioning former Justice J. Michael Eakin with a $50,000 fine, the net effect of Eakin’s case is clear: Judges will need to be more conscious of their behavior away from the bench if they wish to avoid public scrutiny and potential discipline.

Eakin’s March 15 retirement from the bench, combined with the court’s March 24 opinion and order saying his sanction was “significantly reduce[d]” by his retirement, demonstrated that a jurist can receive harsh punishment for private, noncriminal conduct.

Determining how the fact-specific nature of Eakin’s case could apply to future instances of judicial misconduct is difficult, attorneys said, but it does reinforce—and perhaps expand—the notion that a judge’s personal life reflects upon the judiciary.

“If, in fact, that does become a precedent, then a lot of judges are going to be losing their jobs and losing their money in the years to come,” said James McErlane of Lamb McErlane, a former chair of the Judicial Conduct Board. McErlane said he expects Eakin’s discipline to be an “aberration” in the long run.

The JCB charged Eakin last December with four ethics violations over the exchange of offensive emails from a private address. McErlane said he expects it to take a while to sort out the potential ramifications of In re J. Michael Eakin, adding that he thinks a more moderate approach will be applied in future cases. But, he wondered, how far can the issue be taken? At what point does private behavior become a public concern?

The CJD said Eakin’s emails “can be fairly considered to be ‘on-bench’ conduct” because of his significant administrative responsibilities. The court said he violated Canon 2A of the old Code of Judicial Conduct by failing “to conduct himself in a manner that promotes confidence in the integrity and impartiality of the judiciary.”

In combination with “basically a forced retirement,” Eakin’s $50,000 fine constituted a harsh sanction, according to Ellen Brotman of Griesing Law. It should directly affect judges’ future conduct, particularly when it comes to the world of email, which Brotman said will be treated with far more caution.

“Email is very dangerous and is not private, in the sense that once it’s out of your control, it’s out of your control, and it’s potentially exposed to the entire world,” Brotman said.

The lesson to be learned from Eakin’s case is that professional standing should inform private behavior, she said. Judges don’t give up their First Amendment rights when they don the black robe, but the ethics canons require that they maintain personal lives that reflect well on the judiciary.

“We have to be conscious that how we express ourselves and conduct ourselves is consistent with the values we’re sworn to uphold,” Brotman said.

Samuel C. Stretton, who testified at Eakin’s suspension hearing last December that the emails didn’t violate any canons, said the court’s handling of Eakin’s discipline represented a “sea change” compared with prior precedent. The sanction, he said, indicates that private matters with no criminal implications will lead to “very severe discipline” in the future. The case could place judicial discipline on a “slippery slope” by expanding the type of personal conduct that can be sanctioned, he said.

Stretton said he read the court’s opinion to show that Eakin would have been removed from the bench if he had not retired.

Interpreting the opinion’s precedential value, though, is complicated by the court’s discussion of the matter. The court noted its reduction of “what would likely have been the sanction” if Eakin hadn’t retired, and it also mentioned in a footnote that the sanction was “tantamount to a six-month suspension without pay,” leaving attorneys unclear on exactly how the case will be applied in the future.

But there’s “no doubt,” McErlane said, that judges should be more cautious today than they might have been before the Eakin case.

“If you’d be ashamed to read about it on the front page of the paper, you shouldn’t be doing it and you shouldn’t be saying it,” Brotman said. “That’s what happened here.”

Written by: Ben Seal -215-557-2368 or
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