The Legal Intelligencer: Conflict Concerns Dog JCB

Max Mitchell and Lizzy McLellan, The Legal Intelligencer

November 12, 2015

A prior relationship between Pennsylvania Supreme Court Justice J. Michael Eakin and Judicial Conduct Board chief counsel Robert A. Graci has raised questions on the propriety of the JCB’s ongoing investigation into Eakin, and reportedly led the JCB attorney to step aside in the case.

This is not the first time the JCB has investigated a judge with whom a staff or board member had a pre-existing relationship.

The Associated Press reported late Wednesday that Graci had decided to step down from the Eakin investigation after a Philadelphia Daily News article reported that Graci had represented the justice’s 2011 retention campaign and acted as a spokesman.

Grad did not return a call seeking comment Wednesday.

The JCB is now the sole body investigating whether Eakin should be disciplined over offensive and insensitive emails after the state Supreme Court recently concluded its own examination by deferring to the JCB.

However, this is the second time the JCB has reviewed emails related to Eakin in as many years, and some have raised concerns over why the board cleared Eakin in last year’s review.

Numerous attorneys vouched for Graci as being “a straight-shooter” and having the “utmost respect for ethics and integrity,” and said providing some legal work for Eakin years ago would not likely rise to the level of any serious conflict concerns. However, state Attorney General Kathleen Kane, who had reported Eakin to the JCB and disclosed the emails publicly, has said Grad had a clear conflict of interest, the AP reported.

Concerns about conflicts at the JCB have arisen three times in the past decade.

Last year, when the JCB was investigating a number of allegations against former Justice Seamus P. McCaffery, multiple sources identified then-chairwoman Anne E. Lazarus, a Superior Court judge, as a political ally of McCaffery.

And after the JCB received a 2006 complaint against Luzerne County President Judge Michael T. Conahan, JCB chairman Patrick Judge Sr. disqualified himself from discussions about the complaint because he and Conahan were business partners.

The Legal Intelligencer Then-chief counsel Joseph Massa had waited more than seven months after receiving that complaint to bring it to the board members’ attention. Grad
replaced Massa in 2012.

In 2010, Conahan pleaded guilty to one count of racketeering and was sentenced to 17-and-a-half years’ incarceration.

In the wake of that scandal, the Supreme Court created the Interbranch Commission on Juvenile Justice to make recommendations to avoid similar issues. Among those recommendations, the commission said the JOB should review its internal operating procedures, the “role and independence of JCB staff,” and the constitutional provisions over judicial discipline to “ensure the JCB is accountable.”

Although some changes were implemented, attorney Kenneth J. Horoho Jr., who served on the commission, said some of the concerns raised over the close connections with JCB members are similar to the concerns the commission tried to address.

“We were concerned about transparency, oversight and accountability,” Horoho said, adding that the Eakin situation is much less severe than problems the board was dealing with. “You’d like to think that after Luzerne the JCB went far enough with changes to its internal operating procedures.”

Horoho noted that it is difficult to know exactly what changes were made because the board has numerous confidentiality rules. The biggest hurdle to changing any of those rules is that any changes will have to be made through amending the state constitution, Horoho said.

“I think the JCB did a good job of implementing some of those recommendations, but clearly there wasn’t any constitutional change to their rules,” he noted.

According to retired Superior Court Judge Phyllis Beck, the structure of the board and the constitutional amendment that created it are “tine.”

“But like everything else in life, it depends on the people who run it,” Beck said. “I think the creators of the amendment thought it appropriate that judges know the system and therefore they appoint people who they know are qualified.”

Beck said she has some confusion as to how the JCB reached its decision to clear Eakin last year.

“Ideally he should have stepped away if there was a conflict of interest and put one of his staff members in charge,” Beck said.

She added that “it would be naive to think that if he’s the chief counsel, that he does not advise the board or have some interaction with the board.”

Beck additionally noted that the JCB system was not built simply with discipline of Supreme Court justices in mind. The majority of complaints, she said, are filed against magisterial district judges.

Ethics attorney Abraham Reich noted that Rule 1.7 of the Pennsylvania Rules of Professional Conduct says a concurrent conflict of interest exists when the representation of one client will adversely affect another client, or if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

“You have to consider an analysis under the concurrent conflict of interest provisions of the Rules of Professional Conduct,” Reich said. “The lawyers involved are lawyers of high integrity and I am not passing judgment on that, but that is the kind of analysis I would bring to the table.”

Several attorneys said expecting members of the board to have no connections with judges or attorneys involved in the disciplinary cases would be unrealistic, given the number of qualified people working in the arena.

Horoho said the focus should also be on the vetting process to ensure that qualified candidates with high integrity end up on the board, and ethics attorney Samuel C. Stretton said he felt the entire appointment process should be more open to the public, including posting the position openly so qualified people from varied backgrounds can get involved.

Stretton said the current appointment process usually brings in qualified and successful people, but it also tends to reinforce connections and keeps the pool of potential candidates small. This was a particular problem 20 years ago, he said, when few women and minorities were being appointed to critical positions.

Stretton said he made this issue a central point when he ran for a seat on the Supreme Court in 1993.

“Some of these people are pretty bright and good people, but I thought it would be better to open the process up,” Stretton said. “We’re not there yet. There’s not as much as I would like.”