Note to self – hold my tongue if I ever preside over a family law case (which is unlikely, as I have no intention of ever being a judge). And no matter what, no matter how bad the parents may be behaving, it does NOT justify misbehavior from the bench. One judge was recently bench-slapped by the state Commission on Judicial Performance for not remembering the wisdom of holding his tongue – fortunately, in California, not Colorado Springs.
Judge Matthew J. Gary was presiding over a family law case, and the mother was requesting permission to relocate with the children. So far, so normal – in Colorado, a parent seeking to move with the kids also needs the other parent’s consent or permission from the court. The court held numerous hearings on that issue, and of attorneys’ fees, over the period of the next year and a half (it would be much quicker in Colorado, but perhaps that is California for you?)
Ill-Advised Statements by the Judge
It’s not unusual for a family law judge to admonish parents who are being overly-litigious or difficult, or even to comment sarcastically about their credibility. I’ll never forget hearing about a retired judge in El Paso County telling one spouse “When I administered the oath to you today, I was wasting my time.” But while judges are usually more diplomatic, save for the occasional zinger, it’s unusual to have a judge constantly belittle the litigants over a long period of time. Which is what Judge Gary did. His comments during the hearings in this case included such gems as:
- Mocking the mother’s last name (Battilana), saying “it’s a battle. Your name is appropriate.”
- Accusing the parents of not only damaging their minor child, but probably ruining marriage for whatever children their child may have in the future.
- Referring to mother’s counsel as coming “out of your underwear.”
- Talking about the proceedings, and the parents spending money they did not have, as a “huge, colossal, nuclear meltdown… Way to go. Way to go. I’m done. Go off to trial, burn it all up. Good luck…”
- Talking about religion & death (“adults don’t understand death. One of the purposes of religion and culture is because people don’t understand death” before launching into a long soliloquy about religion, death, the afterlife, etc)
- Telling the parties that it was a “nothing case” that should have been settled, and they were “making mountains out of molehills.”
- Making references that call into question his impartiality, such as he was “picking sides” and “knew where the problems lie.”
These are just the highlights – there were more, as reflected in the Decision and Order Imposing Public Admonishment Pursuant to Stipulation – yep, while parties may say nasty things behind the scenes and hope not to get caught, Judge Gary said every little thing on the record, so there are transcripts of his transgressions.
Discipline by the Commission
In language which shows the art of understatement, the commission stated:
Judge Gary’s remarks to and about the parents were undignified and discourteous (in violation of canon 3B(4)), could also be reasonably perceived as reflecting bias or prejudice (in violation of canon 3B(5)), and failed to promote public confidence in the integrity and impartiality of the judiciary (in violation of canon 2A).
Finally, the commission recognized what attorneys have long known – family law is already emotional enough, and judges/attorneys should do what they can to be reasonable, not exacerbate the emotions:
Family law matters can be particularly fraught with emotion. These situations are when a calm and steady hand, a respectful demeanor, and the appearance of neutrality are especially needed. A judge may convey to family law litigants the judge’s concerns about the detrimental effects that high-conflict disputes may have on children, but may not do so by telling parents, in harsh terms, that the judge knows how their children will turn out.
Ultimately, the punishment was what non-lawyers would consider to be a “slap on the wrist” – a public admonition does not result in Judge Gary’s suspension or removal from the bench, it just means that the state issues its order publicly so lawyers around the country can use it as a teaching point of what not to do. And, as the story has been picked up by the national press, it also means normal people can chuckle a bit to realize that even judges are human and can make mistakes.
We recently wrote about a lawyer disciplined for behaving badly. Though it’s much less common for a judge to do this, turnabout is fair play. And good advice for any professional is that if you say something in an adversarial situation that felt great to say, you may well have gone too far.
Family Law Attorneys Can Also Get Embroiled in Cases
While the judge was clearly in the wrong (given the public admonishment he received, and the conduct he stipulated to), it’s worth noting that the parties themselves and the attorneys share part of the blame for how acrimonious the case got.
The judge noted during one hearing that the case had incurred almost $100,000 in attorney fees and was nowhere close to finishing. Given that the marriage in question only lasted two years before the case was filed, this is truly a mind-blowing sum of money.
It’s easy for attorneys and parties to churn up fees in highly contested cases and that is what it sounds like happened here. Pursuing frivolous motions and arguments is a tempting way for some attorneys (not the reputable ones!) to pad their bill at the end of the day. While a client is the one making the ultimate decisions in a case, the attorney does not need to blindly follow whatever the client says.
Attorneys are not only advocates, but we are counselors as well. A good family law attorney will be the first to tell his or her client to pick and choose the battles worth fighting for. If a motion is frivolous or a waste of the court’s time, the attorney needs to tell that to the client, and not blindly file it because the client insists.
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