KBA BAR COUNSEL AND BOARD OF GOVERNORS SEEK TO CREATE PRECEDENT TO ALLOW KBA TO CONDUCT HINDSIGHT REVIEW OF JUDGE’S JUDICIAL DECISIONS -The Doctrine of Judicial Immunity for a Judge’s Official Acts hangs in the balance.

By LawReader Senior Editor Stan Billingsley

   In the ethics investigation of Judge Jay Bamberger, the KBA investigation seeks to expand the jurisdiction of the KBA to review and cite Judges past decisions for ethics review.    The Trial Commissioner argued before the Board of Governors that the KBA had jurisdiction to review a judicial officials acts even without a referral by the JCC.

JUDICIAL IMMUNITY

The Supreme Court Rules for the JCC clearly holds that a judges “erroneous rulings” are not subject to the jurisdiction of the JCC.

See: SCR 4.020 Jurisdiction (of the JCC) which says:

 

     “(2) Any erroneous decision made in good faith shall not be subject to the jurisdiction of the Commission. ”

     We suggest that this rule is based in judicial immunity which was explained in Collins v. Brown, No. 2007-CA-000847-MR (Ky. App. 2/26/2010) (Ky. App., 2010)

” First, as to the judicial defendants, Judge Wise and former Chief Justice Lambert, the trial court properly found them to have been shielded by absolute judicial immunity. The doctrine of judicial immunity is well-settled under federal and common law and predates the adoption of the current Constitution of Kentucky. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1977); Vaughn v. Webb, 911 S.W.2d 273 (Ky. App. 1995). So long as the judge has jurisdiction over the subject matter of the cause before him, he is entitled to immunity. Id. There is no question in this case that Judge Wise and former Chief Justice Lambert acted within their jurisdiction at all times pertinent to the matters raised in Wes’s complaint. Thus, they are clearly entitled to immunity from civil complaints stemming from their judiciall acts.”

The function of absolute immunity in the performance of judicial duties is not to shield members of the judiciary from liability for their own misconduct, but rather “to protect their offices from the deterrent effect of suit alleging improper motives where there has been no more than a mistake or a disagreement on the part of the complaining party with the decision made.” Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001.”

    “[i]t has been repeatedly held by this court in a long line of decisions that a judicial officer is not subject to civil suit when in the performance of his judicial duties and within his jurisdiction, although his ruling may be the result of mistake of law, error of judgment, or malice, or be done corruptly.” 

This is further explained in:  Vaughn v. Webb, 911 S.W.2d 273 (Ky. App. 1995).

“The doctrine of judicial immunity is well-settled under federal and common law and predates the adoption of the current constitution. So long as the judge has jurisdiction over the subject matter of the cause before him, he is entitled to immunity.”

Vaughn v. Webb, 911 S.W.2d 273 (Ky. App., 1995)   

“The acts of Judge Ray, exercised within his jurisdiction, were judicial acts, not administrative acts and Judge Ray is entitled to the protection of judicial immunity. Under federal law, a judge is immune from personal liability for judicial acts if at the time he acted, regardless of whether he acted in error, maliciously, or in excess of his authority, he had jurisdiction over the subject matter before him. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1977)…”

In  Baker v. (Governor) Fletcher, 204 S.W.3d 589 (Ky., 2006) it was stated:    

“See Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), for the best recitation of the rule granting judicial immunity and the reasons underlying its desirability. For Kentucky cases recognizing judicial immunity in the Commonwealth see Henry v. Wilson, 249 Ky. 589, 61 S.W.2d 305 (1933), and Vaughn v. Webb, 911 S.W.2d 273 (Ky.App.1995) (“a judge is immune from personal liability for judicial acts if at the time he acted, regardless of whether he acted in error,…”

“And such a view is also consistent with the immunity afforded to judges, which immunizes judges from suit for ANY judicial act, which is defined as any act that is of the nature normally performed by a judge and one in which the parties dealt with the judge in his official capacity.

 Such judicial immunity applies even if “the action he took was in error, was done maliciously, or was in excess of his authority” so long as the judge did not act in the “clear absence of all jurisdiction.”

    The KBA has not to our knowledge presented any evidence that any action taken by Judge Bamberger was outside his judicial jurisdiction.

    The question of judicial immunity was properly raised by Judge Bamberger.

     The Supreme Court will have an opportunity to review the findings of the Trial Commissioner and the Board of Governors against Judge Bamberger.   If the court sanctions Judge Bamberger then they will be writing new law which negates the doctrine of judicial immunity and will dangerously expand the jurisdiction of the KBA. Such a ruling would destroy the theory behind the existence of the Judicial Conduct Commission.  Such a ruling would grant the KBA jurisdiction to file a civil action seeking sanctions of judges who were acting in their judicial function.

    Bamberger made rulings which the KBA claims he should have examined more closely.

No evidence was presented against Judge Bamberger by the KBA to support the proposition that he acted “with evil or improper intent to aid the plaintiff’s lawyers misconduct”.  No evidence was presented that Bamberger was even aware of the plaintiff’s lawyers misconduct until after he had retired.

Testimony in the two criminal trials against Gallion and Cunningham suggests that Gallion and Cunningham lied to Judge Bamberger about material elements as to their actions.  Gallion and Cunningham deny this.

The KBA states in their brief that “there is no doubt that Gallion lied to the respondent (Judge Bamberger), as did Chesley and others.” (See page 9 of KBA brief.)

Judge William Graham acting as Trial Commissioner for the KBA in their ethics case against attorney Stan Chesley, concluded:

“Chesley himself bamboozled Judge Bamberger with his often non-sensical answers to the Judg’es queries about notice.”

One must ask; “if Judge Bamberger was in-on-the-deal…why was it necessary for the plaintiff’s lawyers to lie to him about material elements?”

The KBA bar counsel argues that Bamberger relied on a case citation presented to him by one of the plaintiff’s attorneys that was no longer good law (See KBA brief page 11).  We suggest if that is a basis for ethical sanctions then all judges may at some time in their career be brought up on charges. This argument by the KBA Bar Counsel would justify a sanction against any Judge who incorrectly interpreted the law.  If such a theory is sustained by the Supreme Court, then any judge who is ever overruled by a higher court on appeal, will be subject to an ethics sanction by the KBA.  But it also means that the KBA has assumed the jurisdiction to make their own evaluation of a judge’s rulings on any issue coming before him.  

Such a conclusion would result in harassment of all judges and could be used to justify absolute control of the Judiciary by the KBA.

The KBA argues for punishment of Bamberger because he “had not reviewed any accounting whatsoever and had never even seen the Settlement Agreement.”   We suggest that the record clearly shows that Bamberger was correctly advised that the plaintiffs had executed  signed settlement agreements by all 440 plaintiffs regarding the initial award and again received 440 signed settlement agreements on the distribution of the second amount of funds awarded to them.   If the plaintiff and the defendant in a civil case all agree to a settlement, it is not uncommon for a judge not to conduct an accounting.

Judge Bamberger only awarded attorney fees until after the 440 plaintiff’s expressed their satisfaction with the money they received. It was not a situation where the the attorney fees were awarded and the claimants received what was remaining.

 Will a judge now be required to review all settlements by calling in all plaintiffs and defendants to his court room and conducing a hearing on each settlement with each plaintiff and defendant? 

Does a signed settlement agreement submitted by a plaintiff or defendant have no legal consequences if the party later changes their mind? Will this now be a new ethical requirement in all civil cases and criminal cases? If so we predict there will never be another settlement approved by a trial judge.  Why would any judge in the future risk being sanctioned by the KBA by approving a settlement?

The overriding fact in this case admitted by the KBA, is that the attorneys lied to Judge Bamberger, and he is now to be punished by the KBA for exercising his proper judicial discretion. 

 The KBA suggests new law which will greatly burden the states trial judges with needless drudgery.   Did not the plaintiff’s express their satisfaction with a settlement by executing signed settlement agreements?  Don’t the plaintiff’s have a burden to put the court on notice that they are unhappy with a settlement by not signing the settlement. 

We would suggest that as far as the Judge’s duties are concerned, the plaintiffs in this case waived any duty of the judge to personally inquire of each plaintiff of his satisfaction.  They should be equitably estopped from claiming a foul when their own signed releases were relied upon by the court.  They set on their rights for years and never appealed any decision made by Judge Bamberger.  This meant that the only way they could punish Bamberger was to question his integrity.

If the attorneys have improperly obtained the signed settlements, than that is a completely different issue. Attorneys do not enjoy the protection of the Judicial Immunity Doctrine.  If the attorney committed a fraud or malpractice or violated the Code of  Professional Conduct, how does that implicate the judge?  The best answer to this question given by the KBA is that the judge should have known better. This is clear hindsight review.

The KBA argues in their brief (Page 13) that “to believe his (Bamberger’s) testimony that he signed whatever orders the attorneys give him because he trusted them and had no knowledge or suspicion of impropriety is to believe he had little cognitive ability” … “he was dazzled by and enamored with a group of powerful men…”   Is  ” lack of cognitive ability” a new standard for ethics sanctions?  May not a trial judge weigh the credibility of highly successful lawyers who are nationally recognized for their prior work, when they advise him on issues of law and fact?

The KBA brief includes many conclusions which merely speculate on what Judge Bamberger was thinking when he signed court orders.  Will the Supreme Court tolerate such speculation as to a Judge’s thoughts?  I would submit that the colorful and deprecating language  and unsupported speculation as to another persons’ thoughts,  as used by the Bar Counsel in their brief, would be thrown out of almost any real trial court under the Rules of Evidence.

One of the essential elements of this case which was picked up by the media, and which was played to the hilt by the Bar Counsel was that six months after Bamberger retired he accepted a position on the board of the Healthy Living Charitable Trust.   The Judicial Conduct Code clearly permits even a sitting judge to sit on the board of a charitable trust. 

Bamberger, before accepting this position obtained ethics opinions from two lawyers which suggested that it was not an ethical violation for Bamberger to serve as a board member. At the time he became a Board member of the trust, he had retired from office and had no judicial control over the operation of the Trust.

The Bar Counsel has conveniently ignored the fact that the Healthy Living Charitable Trust was a suggestion made by Stanley Chesley after all of Bamberger’s orders concerning attorney fee awards were signed.  Testimony in federal court trials reveals that there was no plan for the creation of a Cy Pres trust until late in the proceedings (and after Bamberger had made most of his rulings).   The Bar Counsel suggests that a Cy Pres trust is proof of improper conduct.  In fact there is a great deal of precedent in class action cases for such trusts to be set up to dispose of class action funds left over after all plaintiff’s have received their fair share.   Further the Bar Counsel demonstrates their mindset against Judge Bamberger by stating in their brief that the Charitable Trust was “secret”.  This argument suggests, without any proof,  that the trust funds were improperly handled.  

Nationally recognized Class Action expert Stan Chesley gave Judge Bamberger a memo supporting the appropriateness of the cy pres trust option and so did  a highly respected mediator, Pierce Hamlin.  The KBA Bar Counsel brief suggests that Bamberger was “dazzled” by these experts.  (What judge wouldn’t be?)

The charitable trust was approved by the IRS, and was apparently audited by the U.S. Attorney’s office.  After  the funds were seized by the order of Judge Wehr and Judge Crittenden, there was over a million dollars more in the trust then were initially placed in the trust, even after the payment of the trustees salaries and expenses, and after an award by the trust of over a million dollars to other charitable bodies.  

The Bar Counsel dramatically implies that the  board of trustees were highly paid, but their salaries were in line with salaries paid in other charitable trusts.  The IRS had no problem with the fees paid to the trustees, but the Bar Counsel does a parody of the actor Claude Rains as Police Captain Louis Renault in the l942 movie Casablanca, who was “shocked…shocked I tell you!” to find that gambling was going on in his jurisdiction.  What research has the KBA done to support the conclusion that the Charitable Trust trustees where overly paid?  We find no examples of proper salaries for trustees being introduced by the KBA.

While it will not likely be reviewed by the Supreme Court, it would be interesting if the Bar Counsel could be asked if  the Bar Counsel has audited the handling of these trust funds after the court seized the trust funds in behalf of Angela Ford’s clients.  Is the Bar Counsel investigating the purchase of the Gallion personal residence at a judicial sale in Jessamine County by Angela Ford?  Is the Bar Counsel investigating the reason the U.S. Attorney’s office intervened in that judicial sale and obtained an order from the Jessamine Circuit Court setting aside Ms. Ford’s purchase of the real estate.  The KBA would place a high burden on trial judges to obtain accountings but has the KBA met their  own burden?

One of the main arguments made by the Bar Counsel is that the settlement was an “aggregate” settlement as opposed to a “class action settlement”.  This means that if the settlement was an aggregate settlement that the 440 Fen Phen plaintiffs in the class action should receive all of the money left over after the payment of attorney fees and court costs.  On the other hand if the settlement was properly classified as a “class action settlement” then each of the 440 plaintiffs where only entitled to a settlement which fairly compensated them for their true loss.

The issue of whether or not the settlement was an “aggregate” settlement or a “class action settlement” is currently on review by the Sixth Circuit and possibly by the Kentucky Supreme Court.  

Gallion and Cunningham and Chesley all argue that there is a document which is part of the settlement which answers this question.   This document is identified as “the settlement letter of 5-1-01″.  This document  allegedly defines the status of “settling claimants”.  

Judge Bamberger is faulted by the KBA for his judicial interpretation of this issue.  This issue has yet to be decided by the appellate courts. But it demonstrates that the action by the KBA against Judge Bamberger is based on the Bar Counsel’s  interpretation of the meaning of said document as opposed to Judge Bamberger’s interpretation of the meaning of said document. It ignores the possibility that the appellate courts, in due course, may agree with Judge Bamberger’s ruling. 

If this position is sustained in favor of the KBA, then any ruling of any judge can be subjected to ethics prosecution if the KBA disagrees with the trial court’s findings.  Is the Bar Counsel the proper person to rule on questions such as this before they are decided by the appellate courts?

The record of the Bamberger proceedings reveal testimony of Kenneth R. Feinberg.  Feinberg is a nationally recognized expert on class action settlements and the evaluation of claims in class actions.  He is the man that President George W. Bush appointed to oversee the evaluation of compensation for the victims of the Sept. 11 terroristic attack upon the New York World Trade Center.  Feinberg also handled the evaluation of the claims of the 440 plaintiffs in the Kentucky Fen Phen case and he states under oath:

“I have read and considered the assertion in the Plaintiff’s memorandum supporting their motion for summary judgment that Exhibit 3 to the settlement agreement is a “smoking gun” that “proves” that all of the $200,000,000 was intended to compensate only 431 claimants, many of whom are involved in the instant litigation against their former attorneys. In my opinion that assertion is simply a naive misunderstanding or misinterpretation of the language in the settlement agreement and the purpose it served in memorializing the settlement.”

(Footnote on Kenneth Feinberg:

Kenneth Feinberg (born October 23, 1945, Brockton, Massachusetts)[1] is an American attorney, specializing in mediation and alternative dispute resolution. Feinberg was appointed Special Master of the U.S. government’s September 11th Victim Compensation Fund and currently serves as the Special Master for TARP Executive Compensation, popularly called the “pay czar.” Additionally, Feinberg currently serves as the government-appointed administrator of the BP Deepwater Horizon Disaster Victim Compensation Fund. He is also an adjunct professor at the Columbia University School of Law, University of Pennsylvania Law School, Georgetown University Law Center, New York University School of Law, the University of Virginia School of Law and at the Benjamin N. Cardozo School of Law.)

In the first criminal trial of Gallion, Cunningham and Mills, before Judge Bertlesman, the court ruled the settlement was a class action settlement, not an “aggregate” settlement.  No weight is given by the KBA to this ruling of a U.S. District Judge.  If a Federal judge found it to be a “class action” type settlement it is reasonable to justify Judge Bambergers identical finding on this issue.

In the second criminal trial, Judge Danny Reeves refused to allow testimony on this subject and instructed the jury that it was an “aggregate” settlement.  That ruling is on appeal to the Sixth Circuit Court of Appeals.

Judge Wehr, the Boone Circuit Court Judge who handled the Angela Ford case against the Plaintiff’s original lawyers granted a summary judgment apparently finding it was an aggregate settlement.   That summary judgment was set aside by the Ky. Court of Appeals.  The Court of Appeals found that it was a jury question and could not be decided by a summary judgment ruling as it was in the purview of the jury to rule on the facts.  That issue is apparently on appeal to the Kentucky Supreme Court.  In the meantime the $20,000,000 seized in behalf of Angela Ford’s clients is still apparently in their hands, but there is no court judgment supporting their claim to those funds.  They may win such a judgment in the future, but at the present they haven’t to our knowledge returned those funds to the court.  

After reading a news story in the Lexington Hearld -Leader this author called the Master Commissioner of Jessamine County and he reported to LawReader that the judicial sale of Gallion’s personal residence in Jessamine County to Angela Ford,  had been set aside at the request of the U.S. Attorney’s office.  Why was this done?   Has the Bar Counsel conducted a review of Ms. Ford’s handling of the $20,000,000 seized from the charitable trust proceeds?

The Master Commissioner reported that the U.S. Attorney’s office objected to the use of funds held in trust by Angela Ford, to purchase the Gallion residence, on the basis that some of the money held in trust by Ford “belongs to some 12 clients she does not represent.    

The KBA would impose a duty upon Judge Bamberger to account for the handling of all funds. Does the Bar Counsel now take the position that the KBA has no responsibility to inquire about the handling of these trust funds in light of the action by the U.S. Attorney’s office?

      Is all of the $20,000,000 still in her possession? Were these trust funds used to purchase the Gallion home at the Judicial Auction in Jessamine County?  How was such a purchase for the benefit of the trust?  How much of a return has been earned on these funds since they were turned over by the successor judges in trust for Ms. Fords clients? 

The judge who permitted the seizure of the Charitable Trust funds in behalf of the Summary Judgment plaintiffs acted properly because at the time of his order there was a summary judgment in effect, and Gallion and Cunningham did not post a supersedes bond. 

 We raise these issues due to the fact that the KBA Bar Counsel’s brief castigates Judge Bamberger for not inquiring about the handling of funds by the plaintiff’s lawyers.  

What actions has the Bar Counsel taken to review the handling of these funds by Angela Ford as publically raised by the Herald-Leader article? 

We have read the 16 page brief of the KBA and find it frequently makes an emotional argument about things it has not proven, and which is apparently based on their psychic readings of Judge Bamberger’s mind.  It has always been my belief that before a prosecutor can make a closing argument on an issue, it should be supported by at least some proof.

This is exactly the reason that the Doctrine of Judicial Immunity was created many of years ago and applied in every American jurisdiction.  Will judges now be subject to unsupported speculation about their motives in performing their official acts?

A denial of judicial immunity to Judge Bamberger will put every judge in Kentucky under the threat of KBA discipline sanctions if they acted on representations made by the attorneys or parties who appeared before them.  If any judge is overruled by a higher court will he now be subject to an ethics prosecution because he ruled incorrectly on the law or made some other kind of  mistake? 

Setting aside the judicial immunity defense  would grant to the KBA the ability to review any decision ever made by a judge in his entire career. There is no statute of limitations on ethics prosecutions. This hindsight review of judicial actions by the KBA is a dangerous step which was taken by the KBA Bar Counsel, the Trial Commissioner, the Inquiry Commission and now by the Board of Governors. 

We would suggest that the Judicial Immunity Doctrine can co-exist with the KBA discipline process.  In Hardesty the Supreme Court (in dicta) suggested that there were instances where the KBA could proceed without a referral by the JCC.   One reasonable interpretation of that dicta is to  recognize the right of the KBA to proceed immediately against a Judge who has been convicted of a criminal offense.  A criminal offense is not a judicial function and therefore is not protected by the judicial immunity doctrine.

However, the JCC should retain the right in any case against a judge, to make a finding as to whether or not the actions of the defendant judge “was an action within his judicial function” and therefore entitled to the judicial immunity defense. 

If the JCC finds that a judges’ complained of conduct was done within the role of a judge (i.e. signing orders, holding hearings, etc.) he should be entitled to judicial immunity and no discipline action could be taken by the KBA without a finding by the JCC that the judge was acting outside of his official duties.  (We again point out that KBA discipline actions are defined as civil actions.)

On the other hand, if the JCC issues a finding of fact that the complained of actions of the judge were not judicial acts, (i.e. a violation of the criminal code) then the judge should not be protected by judicial immunity.

The JCC by making a referral to the KBA is essence is saying that the conduct of the judge was not protected by judicial immunity.  The JCC is authorized by Supreme Court Rules to refer a judge to the KBA for consideration of sanctions or disbarment.  No such referral was made by the JCC in the case involving Judge Bamberger.  The KBA never really explains why the Supreme Court Rule allowing the JCC to make a discipline referral to the KBA should be ignored.  The Bar Counsel basically ignores this Supreme Court Rule.

The KBA in essense argues that they do not have any limits on their jurisdiction to consider a discipline action, and therefore they claim that the Supreme Court Rule regarding “referrals” by the JCC is without any meaning.

The purpose of the JCC is to provide a body with knowledge of judicial functions. The JCC  membership includes a Court of Appeals judge, a Circuit Judge and a District Judge.  They are presumed to have an understanding of the type of special problems and duties of judges.

If the KBA is allowed carte blanche to determine the proper duties of judges and to rule on whether actions taken by a judge are within his judicial function, then there really will be no reason to continue the existence of the JCC.   The willingness of the KBA to totally ignore an evaluation of judicial functions and judicial immunity is clearly supported by their actions against Judge Bamberger.

 If the special role of the JCC  is ignored by the Supreme Court, then the KBA Bar Counsel, the Inquiry Commission and the Board of Governors (who are all made up of lawyers and in some instances private citizens, who do not have judicial experience), will be the reviewing body authorized to review of the conduct of judges and will have to power to rule on the application of the judicial immunity doctrine.

We submit that logic requires that the application of the judicial immunity doctrine should be addressed by the JCC and reviewed by the Supreme Court. Such an interpretation upholds the power of the JCC to make referrals to the KBA.

We feel confident that the Supreme Court will proceed with caution and will carefully consider what a destruction of the judicial immunity rule will mean to other judges and to the continued existence of the JCC.

                                             JURISDICTION OF THE JCC AND KBA

   The question of the jurisdiction of the JCC and KBA was also raised by Judge Bamberger in his brief to the Board of Governors.

Bamberger asserted that “Section 121 (of the Kentucky Constitution) fixes original jurisdiction for judicial discipline exclusively in the (Judicial Conduct) Commission…”   

The JCC did not refer Judge Bamberger to the KBA “for possible suspension or disbarment…”

In KBA v. Hardesty 775 S.W.2d 87 (Ky., 1989), the Supreme Court dismissed an action by the KBA against a judge.  The Supreme Court added some dicta which suggested 

in the future it will be appropriate for the Bar Association to proceed against the individual in his capacity as a lawyer, as provided for in SCR Rule 3, regardless of the action taken by the JRRC.”

 

This dicta by the Supreme Court in Hardesty did not discuss the effect of  SCR 4.020(1)(d) which gives the Judicial Conduct Commission “the authority to refer any judge of the Court of Justice who, after notice and hearing is found by the Commission to be guilty of misconduct, to the KBA for possible suspension or disbarment from the practice of law.”

 Again we note that the JCC sanctioned Judge Bamberger but they did not exercise their discretion to refer him to the KBA for further discipline.

   The dicta in Hardesty  which suggests that the KBA may take action without a referral from the JCC is not precedent and does not discuss SCR 4.010(1)(d).  Dicta is not authority. It was stated in Stone v. City of Providence, 236 Ky. 775 (KY, 1931)  “such language was dicta, as that question was not really involved, and the dicta is not now binding upon us in this subsequent case…”

We would hope that the Supreme Court, in reviewing Hardesty, should note that Judge Hardesty was charged with making sexual propositions which are clearly outside his judicial function immunity. He was allegedly attempting to sell leniency for sexual favors. 

We have yet to see any proof that Judge Bamberger by signing certain orders was acting “outside of his judicial function“.   This point distinguishes almost every argument raised by the KBA Bar Counsel in their brief to the Board of Governors and to the Trial Commissioner.

There is clear authority for the KBA to discipline any judge (or lawyer) who is actually convicted of a crime. We would suggest that an actual conviction of a judge of the criminal law would justify action by the KBA without a referral by the JCC.    Rulings that support this conclusion, which bypasses the JCC, hold that the criminal conviction must be final, and the KBA has no discipline jurisdiction based on a criminal act, until the defendant is found guilty

Judge Bamberger was never charged with any violation of criminal law and certainly was never convicted. 

We note that the Code of Professional Conduct classifies discipline actions against judges and attorneys as civil actions.   Therefore we suggest that it is well established in the law that a judge enjoys sovereign immunity or judicial immunity for any acts taken within his jurisdiction regardless if they were in error. 

One issue that is raised by the actions of the KBA Bar Counsel is that ethics prosecutions are not entitled to judicial immunity protection.   We would suggest that an ethics prosecution by definition is a “civil action”, and as long as the actions of the judge were performed as a judicial function that judicial immunity applies.  If the Supreme Court changes that rule, then the entire jurisprudence regarding judicial immunity will be made meaningless.

 THE FEE JUDGE BAMBERGER AWARDED TO PLAINTIFF’S ATTORNEYS WAS WITHIN GUIDELINES ESTABLISHED BY THE COURT OF APPEALS

   In Shelton v. Simpson, 441 S.W.2d 421 Ct. of Appeals, May 23, 1969, the court upheld a fee of 50% in a Kentucky class action which had 400 plaintiffs. In that decision the Court of Appeals set aside the trial judges fee award of 25%, and restored the 50% fee claimed by the class action attorney.

Bamberger awarded an attorneys fee of 48%, and the Court of Appeals in Shelton v. Simpson upheld a class action attorneys fee award of 50%. So we ask how outrageous was Judge Bamberger’s fee award?

The Bar Counsel has colorfully suggested that all costs incurred in the Fen Phen case were attorney fees.   The Plaintiffs attorneys did not get some $130,000,000 in fees as claimed by the KBA.  The actual plaintiff’s lawyers received an award of 48% of the gross award.   The attorneys hired expert witnesses, consultants, and Mr. Feinberg and donated $20,000,000 to the Fund for Healthy Living Charitable Trust.  The funds paid to these other parties can be argued to have been court costs.  Nevertheless the KBA, playing to the press, suggests that all money not paid to the original plaintiffs was paid to their attorneys.

But that is a matter to be decided by the Supreme Court and we have found no precedent for guidance on this issue.

Any close examination of the facts reveals that the original offer in the Fen Phen case was about $20,000,000.  The trial consultant and Stan Chesley were brought in to help mediate the settlement and as a result a settlement of $200,000,000 was reached.  Even if this is found to be an “aggregate” award should not the plaintiff’s pay the costs of the consultants and expert witnesses?

KENTUCKY.COURT OF APPEALS DECISION

The key issue in this case is whether or not this settlement approved by Bamberger was an “aggregate” settlement or a “class action settlement”, and that has not been finally decided.

 Judge Bertlesman ruled it was in fact a “class action”.  The Kentucky Court of Appeals say this is a jury question.

Nevertheless the KBA unilaterally concludes that it was an “aggregate” settlement intended only for the benefit of the 440 plaintiff.  Based on their ruling they would permanently disbar Judge Bamberger over his ruling that it was a “class action” settlement and that the original plaintiffs where not entitled to all the proceeds.

 2007-CA-001971   Date: 2/3/2011 ABBOTT V. GALLION, CUNNINGHAM AND MILLS

Quotes from the Ct. of Appeals ruling:

“…it was represented to the Court (i.e. to Judge Bamberger) during the June 27, 2002, hearing regarding that Seven Million Five Hundred Thousand Dollars ($7,500,000.00) that all clients had or would agree to the balance of funds going to charity. It is now clear from the paper discovery produced that same was not true, and none of the clients were advised of the magnitude of the funds being transferred.”

” Judge Bamberger was not made aware of the fee contracts,…”  (i.e. the contingent fee contracts originally obtained by CMC.)

” Abbott points out that GMC  (Gallion Mills and Cunningham) gave it no notice of the true amount of fees it was taking, or that it had asked Bamberger to approve fees in excess of the contingent fee contracts it had executed.”

” This is an independent action that is not the result of a modification or vacation of Bamberger’s orders in the Guard action.”  (i.e. the Court is saying the plaintiff’s represented by Angela Ford did not seek to set aside any orders of Judge Bamberger.)

” In response to Abbott’s motion for partial summary judgment, the seventeen-page affidavit of Hon. Kenneth R. Feinberg, a practicing attorney and an expert in mass tort litigation, was submitted.

 Feinberg’s affidavit concluded the settlement entered in the Guard action was “reasonable” and the “side letter” agreement supported the conclusion that the $200,000,000.00 paid by AHP was not intended to compensate only the 431 plaintiffs, but was also intended “to provide for other payments, including potential claims or (sic) other Phen-Fen (sic) users, subrogation claim holders, and other unforeseen claims.”

 

Feinberg went on to state:

 There was nothing out of the ordinary in the Boone Circuit Court approving the use of approximately twenty million dollars from Guard for cy pres purposes or in approving the formation of a charitable foundation, the Kentucky Fund for Healthy Living, Inc. (Kentucky Fund), to administer the cy pres funds. I am aware that certain of the plaintiffs’ attorneys were appointed by the Court to serve as directors of the Kentucky Fund.

In my opinion, there was no conflict of interest or impropriety whatever in those appointments. The plaintiffs’ attorneys were in an excellent position to understand the purposes of the fund and to carry out the intent of the Court that approved the establishment of the charitable foundation.

In my opinion, the case was handled properly and ethically. I have seen nothing that credibly suggests any misconduct by the attorneys or any inappropriate action by the judge who presided over the case. It appears that the instant action against the plaintiffs’ attorneys in

Guard  (AKA the Fen Phen case) is based on nothing more than misinformation or lack of understanding of the procedures involved in class action or common fund or aggregate mass tort settlement.”

Feinberg’s affidavit was sufficient to create genuine issues of material fact such as:

…whether the entire settlement, minus fees and expenses, was to be split between the 431 settling claimants; whether the settling complainants were fairly and adequately compensated; whether KFHL was funded with money that should have been distributed to the settling claimants or was funded with excess funds for which the plaintiff’s consent to its ultimate use was not required; and, whether GMC and Chesley were obligated to indemnify AHP for additional claimants who might come forward after the settlement had been dispersed. The foregoing questions of fact justified going forward with trial. Steelvest, 807 S.W.2d at 480-82; See also, Chalothorn v. Meade, 15 S.W.3d 391 (Ky. App. 1999).”

(The Court of Appeals ruled)  ” We agree that creation of a cy pres trust is a valid option under the appropriate circumstances.” 

Author’s comment: According to the Court of Appeals, the Charitable Trust approved by Judge Bamberger was a valid option for him to consider.  This ruling of the Court of Appeals was not  mentioned in the Bar Counsel’s brief.  The Bar Counsel stated in their brief re: the Charitable Trust:

 “He (meaning Bamberger) allowed the attorneys to keep another twenty million dollars of settlement funds …”

 This money was not kept by GMC. It was placed in a charitable trust and those funds are  now believed to be held in trust by Angela Ford in behalf of her clients, and others who are not her clients (??).  The argument by the Bar Counsel simply misstates the facts on this issue. This exaggeration is just one of many in the Bar Counsel’s brief.)

” Therefore, reversal is necessary. Because we have determined partial summary judgment was improvidently granted…”.

Author’s comment: Upon trial it is possible that a judgment may be entered declaring the settlement to have been a “class action” settlement and not an “aggregate” settlement, and if that occurs, then every claim brought by the Bar Counsel against Judge Bamberger’s rulings will be cast in quite a different light. 

 We submit that the Supreme Court  must view  Judge Bamberger’s rulings in light of the law, and not just the rhetoric of the Bar Counsel.  We have not discovered one instance in the Bar Counsel’s brief which supports their conclusion that Bamberger ever acted outside of his judicial function in making any ruling.  Therefore there is a strong argument that Judge Bamberger should be protected by the Doctrine of Judicial Immunity.

CONCLUSION

The Bar Counsel has argued that Judge Bamberger was dazzled by the legal arguments of highly respected experts in the class action practices, and therefore he should be sanctioned with permanent disbarment.  This sets a dangerous precedent for any judge who has ever made a ruling. If this novel theory of jurisdiction over judge’s rulings by the Bar Association is upheld, then every judge will henceforth be subject to hindsight review by the Bar Counsel.

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                   Author’s disclosure:  I have been a friend of Judge Bamberger since May 2, 1971.  I admittedly believe in his credibility and integrity.  This issue however is a legal argument about the Judicial Immunity Doctrine and the jurisdiction of the KBA, and not about my friendship with Judge Bamberger.

  My concern about this case is that the Bar Counsel is seeking to establish a precedent that every judge will in the future be subject to hindsight review of their reasons for making any ruling, and that the Bar Counsel will need only to speculate as to their justifications for every ruling they make.  

The Trial Commissioner and the Board of Governors ignored the judicial immunity issue.   This issue is presumed to be headed for appeal  to the Supreme Court.  

After Judge Bamberger retired as Boone Circuit Judge I was assigned by the Chief Justice to serve as a Senior Status Circuit Judge in Boone County.   The Fen Phen case, due to the established assignment policy of the Boone Circuit Court was automatically assigned to me.   Angela Ford first filed a recusal motion against Judge Frohlich but upon learning that the case had been actually assigned to me immediately filed a recusal motion to remove me from the case.  She alleged that my friendship with Judge Bamberger justified my recusal.   She also moved that “all Northern Kentucky Judges be recused from the case.”

I wrote Chief Justice Lambert and said that I had no great desire to handle this case but found no precedent for a recusal motion based on my relationship with Judge Bamberger.  He was not a party to the pending lawsuit.  I had “control” of the case for less than a week.  During that time I did not make any rulings, did not sign any orders  and conducted no hearings.  I was thankful that Chief Justice Lambert appointed another Judge to hear the case.  

I do not now, nor have I ever, represented Judge Bamberger or any other party in the pending cases or appeals.

This article is written out of concern for the future of the judiciary in which I served as a Trial Commissioner, District Judge and Senior Status Circuit Judge for 27 years.  I have witnessed five years of innuendo and media sensationalism directed against Judge Bamberger.  I speak up now only after having had an opportunity to  read his brief and the Bar Counsel’s brief  and other pleadings so as to understand the real facts.

I served on the Judicial Conduct Commission as an alternate for four years.   I believe that their work is highly professional and fear that the Bar Counsel and the KBA are attempting to eviscerate the jurisdiction of the JCC.

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*The case heard by Judge Bamberger is called the “Fen Phen” case, or the “Phen Fen” case but the correct name of the case is Guard v. A.H. Robbins.   In some places in the record it is stated that there were 430 original plaintiffs, or 431  and in other places it is said that there were 440 plaintiffs, and in other places another number is stated.

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