An ethics panel of the Supreme Judicial Court has concluded that judges may accept free legal services to fight misconduct charges, potentially killing a state investigation into District Court Judge Raymond G. Dougan’s controversial acceptance of more than $85,000 in free services from a prominent Boston law firm.
The finding by the Committee on Judicial Ethics, a five-member panel that advises judges, challenges a longstanding state policy that required judges to pay their own legal bills to avoid the potential for conflict. The concern had been that a lawyer donating legal services might later expect that judge to repay the favor with a friendly ruling from the bench.
The influential committee’s finding, contained in a March 15 opinion provided to another judge facing ethics charges, said judges may accept free legal services to mount their defense as long as the lawyers never appear in court before them.
“Your acceptance [of free legal services] under these circumstances is also consistent with your broader obligations to promote public confidence in the integrity and impartiality of the judiciary,” wrote the committee, whose opinions, if followed, protect judges from disciplinary action.
Michael E. Mone Sr., the attorney who sought the committee ruling on behalf of the other judge, said the opinion will probably apply to other judges, including Dougan, first justice of the Boston Municipal Court branch that handles cases in downtown Boston.
Dougan received free legal services from the law firm Foley Hoag after Suffolk District Attorney Daniel F. Conley filed a formal complaint against Dougan alleging that he habitually ruled in favor of criminal defendants, even when evidence of their guilt was extensive.
Judge Dougan declined to comment, but his lawyer, Michael B. Keating, issued a statement asserting vindication: “We believe the Committee on Judicial Ethics’ decision announced today, which is consistent with earlier opinions of the Committee on Judicial Ethics, fully supports Foley Hoag’s representation of Judge Raymond Dougan on a pro bono basis before the Commission on Judicial Conduct.”
But the finding worries the former executive director of the Commission on Judicial Conduct, who said the new opinion erodes ethical standards and could open the door to other kinds of gifts to judges, such as swearing-in parties sponsored by law firms.
“The entire time I worked at the commission, my friends who work at the SJC and I wouldn’t even buy each other so much as a cookie,” said Jill Pearson, who retired last year after 24 years at the agency. “We thought about the appearance of impropriety at all times. Most judges and employees of the judicial branch in Massachusetts understand this principle and live by it very carefully. “
“But now this CJE opinion leaves all the principled judges with no support,” she said. “How will they explain to their lawyer friends that their friends can’t treat them to dinner or give them extravagant gifts? The principle has been whittled away.”
Pamela Wilmot, executive director of the watchdog organization Common Cause, urged the State Ethics Commission to review the issue of gifts for judges and legal defense funds for public officials.
“It would certainly be troubling if this case were to lead to more occasions of free representation [for judges] with the attendant risk of more clout for those willing and able to provide free representation,” she said.
Mone said the finding by the Committee on Judicial Ethics makes sense, noting that investigations by the Commission on Judicial Conduct can be long and expensive. “People, whether they’re judges or lawyers, need to have competent representation,” said Mone. “In many cases, they cannot afford that representation.”
Mone said he previously billed all judicial clients for his services based on the advice of the Commission on Judicial Conduct, whose policy for decades has been that the judges who appear before the agency must pay the lawyer who is representing them.
After the Globe disclosed that there were ethical questions about Dougan’s free legal services, Mone said he became concerned that he, too, could be violating ethical standards, even by offering a rate discount to judges. He asked the committee if it was acceptable for a judge who had once worked for Mone’s firm to receive discounted legal services from Mone now.
Mone rejected the idea that the committee finding is going to open the floodgates to lawyers giving gifts to judges. He said he believes it applies only to legal services, not other gifts, and he does not believe lawyers would take on these difficult cases to ingratiate themselves with judges.
At least one of the many judges who have paid lawyers to represent them in disciplinary proceedings bristled Tuesday when he read the opinion.
“Am I going to get my money back?” the judge jokingly told colleagues, according to someone who heard the remark.
It is unclear whether the opinion will apply to clerk magistrates, who can also run up huge legal bills during misconduct investigations. One clerk magistrate, Robert E. Powers, who is facing discipline by the SJC after an investigation by a committee that oversees clerks, has legal bills of more than $100,000, according to someone Powers told about the bills.
Dougan’s lawyer, Keating, said in his statement that the committee opinion was right.
“It has always been our view that pro bono representation of Judge Dougan was in full compliance with Massachusetts legal and ethical standards and, moreover, was critical to defend the independence of the Massachusetts judiciary,” Keating said in his statement
Defense lawyers rallied to Dougan during the investigation, accusing Conley of bullying an independent-minded judge. Keating argued that the bias complaint threatened the idea of judicial independence.
Keating and two other Foley Hoag lawyers defended Dougan all the way to the SJC, convincing the court that Dougan should not have to answer questions about the thinking behind some of his decisions. The landmark ruling barred future investigators from probing judges’ thought processes.
In December, Dougan was notified the judicial conduct commission had dismissed Conley’s complaint, after reviewing a 1,000-page report compiled by an independent counsel, J. William Codinha. That would have been the end of the controversy, except for disclosures made by Dougan showing he had received a large amount of free legal services. After the Globe reported on the free services, Dougan told colleagues the judicial conduct commission had begun a new investigation, much to his frustration.
Howard Neff, head of the judicial conduct commission, also declined to comment. Agency officials have never officially confirmed they were investigating Dougan.
The Supreme Judicial Court has said the Committee on Judicial Ethics opinions deserve great weight, writing on its Web page: “A judge who seeks and receives a formal opinion from the Committee and then follows a course of conduct in reliance on that opinion is protected from disciplinary action, even if the committee’s opinion should later turn out to have been erroneous.”