February 2007
Featured Disciplinary Case
Topic
A judicial officer should not voluntarily vouch for the character of a disciplined attorney
during the course of a reinstatement proceeding.
Summary
In re John B. Whitaker, 2006 B 2222, ___ So.2d ___ (Lou. Feb. 22, 2007). Whitaker was a Natchitoches Parish judge until his retirement from the bench. During his tenure as a judge, the Judiciary Commission of Louisiana commenced an investigation of judicial misconduct on his part. Because that investigation was not complete at the time he left the bench, the matter was transferred to the Office of Disciplinary Counsel for review. Formal charges were eventually filed alleging two different substantive violations. The first, and most serious charge, involved his issuance of orders and directives, both verbal and written, on five hundred occasions, authorizing the Natchitoches Sheriff's Office to perform certain actions when there were no cases pending, no motions or rule filed, and no hearing set. The second charge alleged that, in violation of the state judicial ethics code, Whitaker voluntarily submitted a letter to the Chief Disciplinary Counsel in support of an individual's readmission to the bar. As to the former matter, the evidence demonstrated that Whitaker issued orders and directives unrelated to any pending proceeding. The orders and directives covered a wide range of situations, including child custody, community property disputes, return of separate property, release of a vehicle from a mechanic's shop, the arrest of a probationer, a return of a vehicle from an individual who was not entitled to hold the vehicle, and others. The sheriff testified that at times he felt that he needed orders from Whitaker to comply with requests made by citizens and that he would refer those citizens to the judge chambers. If Whitaker gave the sheriff a verbal or written order or directive, the sheriff would then attempt to carry it out. On occasion, the sheriff would request written authorization from Whitaker, believing that he needed additional authority before he could perform certain acts. It was Whitaker's position that these ex parte rulings did not violate the judicial conduct code since the sheriff's office already had the authority to perform the actions that were being taken. The Louisiana Supreme Court, however, disagreed. The Court concluded that Whitaker blatantly disregarded the due process protections established by law. Further, the Court found it particularly disturbing that, in at least one instance, Whitaker personally benefited from this practice when he ordered the sheriff to retrieve his girlfriend's car from a local garage. The Court concluded that, "Although there might not be evidence in the record of palpable harm resulting from respondent's actions, the potential for abuse in this scenario is patently obvious." As to the other allegation filed against him, at the relevant time, the Louisiana Code of Judicial Conduct, provided as follows:
A judge shall not testify voluntarily as a character witness. Although a judge should be sensitive to possible abuse of the prestige of office, a judge may, based on the judge's personal knowledge, serve as a reference or provide a letter of recommendation. Letters of recommendation may be written only on private stationery which does not contain any official designation of the judge's court, but the judge may use his or her title.
Many other jurisdictions have enacted similar prohibitions.
See generally, Annotated Model Code of Judicial Conduct (ABA 2004) at 69, 73-75. In this instance, Whitaker corresponded on his official letterhead in furtherance of the reinstatement petition of Gregory N. Wampler, who had been disbarred in Louisiana in 1994. Wampler was disciplined because he had pled guilty to federal charges of counts of securities fraud for counterfeiting two certificates of deposit totaling $125,000.00 and presenting them to his client as the client's funds. He also pled guilty to five counts of state charges for felony unauthorized use of a movable in excess of $1,000.00, when he misappropriated the funds of five clients, totaling approximately $97,500.00. Wampler was sentenced to twenty-one months imprisonment at the federal prison camp at Fort Bliss in Texas. On behalf of Wampler, Whitaker wrote:
If the proverb that "as the twig is bent so grows the tree" has any truth to it then Mr. Wampler can again become a productive member of the bar because I know he was raised right.
Whitaker explained that he did not know that the judicial ethics rules had been amended to prohibit letters from judges to the Disciplinary Board. Nevertheless, taking all factors into account, Whitaker was suspended from the practice of law for one year and one day. Aggravating the misconduct was the fact that Whitaker was a recidivist. In 1985, he was suspended from judicial office for one year for smoking marijuana on two occasions after becoming a judge and for associating with prostitutes, users and sellers of illegal drugs, and an individual against whom felony criminal charges were pending.
As aside, Gregory N. Wampler was reinstated on February 7, 2003, subject to a five-year period of probation and the conditions.
