Judge Jay Bybee received free legal services in 2012, the sixth year in a row. (Jason Doiy)
In 2012, four federal appeals ­judges enjoyed free legal services from law firms — including Judge Jay Bybee of the Ninth Circuit, for the sixth year in a row — and another 14 had financial agreements with firms they worked for before taking the bench.
These judges represented only a small subset, seven percent, of the 257 federal appeals judges whose mandatory annual financial disclosures were provided to The National Law Journal. The ­lingering financial ties that bind these judges to law firms aren’t prohibited — assuming judges recuse when the relationships ­create potential conflicts of interest. See chart, ” Judges’ Law Firm Ties, By the Numbers.”
A National Law Journal review of judges’ annual reports showed they were largely successful in avoiding conflicts, with a few exceptions.
The judiciary’s ethics rules don’t stop judges from accepting pro bono legal help, or receiving money owed from the years they spent in private practice. But in all cases involving a former firm, judges should weigh whether participation “would create any appearance of impropriety,” according to the judiciary’s ethics guidelines.
Judges cannot hear a case if they receive money from a law firm involved. And they’re required to look out for potential conflicts even if money isn’t changing hands — for instance, when a judge only recently left private practice, or has a retirement plan with a firm.
“The question ought to be: ‘Does a judge have a stake in the firm’s continued financial success?’ ” said Arthur Hellman, a professor at the University of Pittsburgh School of Law.
FREE LEGAL SERVICES
Judges often sidestepped conflicts by placing law firms on an automatic recusal list — in some instances, for many years after a judge left the firm. In one instance, Bybee failed to recuse from a case involving Davis Polk & Wardwell. From 2007 to 2012, Bybee reported free legal services from Davis Polk and Latham & Watkins valued at more than $3.3 million, according to the judge’s financial disclosures. He declined an interview request.
Latham counseled Bybee ­regarding allegations that he violated attorney ethics rules when working on U.S. Department of Justice memos authorizing abusive interrogation techniques. Davis Polk helped establish a legal defense fund for the judge. The legal representation appeared to taper after DOJ cleared Bybee in 2010. In 2012, Bybee reported only $2,299 in legal services from Davis Polk.
Bybee did not participate in at least three cases involving Latham clients, court records show. He recently ack­nowledged for the first time his failure to recuse in the Davis Polk case. The firm represented a Guatemalan woman applying for asylum. Bybee was on the three-judge panel that ruled in 2011 against Davis Polk’s client.
The court notified attorneys in the case on March 28 about the recusal issue in response to an inquiry by the Center for Public Integrity. The center published a report examining cases in which judges didn’t recuse despite financial conflicts, such as holding stock in a company appearing before them in litigation. No parties responded to the notice, so the case was unaffected.
Three other judges reported free representation as gifts: D.C. Circuit Senior Judge Laurence Silberman, and Judge Richard Paez and Senior Judge A. Wallace Tashima of the Ninth Circuit. They were plaintiffs in a lawsuit challenging Congress’ refusal to pay cost-of-living raises for judges. Each disclosed $67,082 in legal services in 2012 from Kirkland & Ellis.
Silberman said the judges agreed not to hear cases involving Kirkland while the judicial pay lawsuit was pending. The recusals stopped once the case ended; the judges prevailed in 2012. “It seemed to be a logical point once the litigation was completely over, keeping in mind, after all, that Kirkland & Ellis’ services were for the benefit of all federal judges,” Silberman said. Court records show he didn’t hear cases involving the Chicago-based firm while the lawsuit was ongoing.
Tashima recused from at least one case, court records show. He served as a special master in a dispute over sanctions against lawyers in litigation involving a Kirkland client. Tashima withdrew in January 2009, just before the judges filed their suit. He didn’t mention the judicial pay suit, writing only that he was leaving “out of an abundance of caution.”
Court records show Kirkland filed friend-of-the-court briefs before Paez in at least two cases, but the judge did not hear any case in which the firm represented a party. Paez said through a court official that the recusal policy didn’t apply to amicus parties.
Kirkland partner Christopher Landau, the judges’ attorney, said his firm didn’t encounter ethical issues representing the judges, who he described as “smart and engaged” clients. “It was certainly something that I undertook with some degree of trepidation, because they’re certainly not your ordinary clients,” he said.
Judges are allowed to receive payments based on their law firm partnership interest, according to the ethics guidelines. They can’t share in profits the firm earned after they left, however.
Hellman said the judiciary’s ethics guidelines lean in favor of disqualification if a judge has any financial arrangements with a firm, even if the terms were predefined and the judge wasn’t receiving money at the time.
Second Circuit Senior Judge Robert Sack, confirmed in 1998, receives $72,000 annually from Gibson, Dunn & Crutcher through a lifetime retirement agreement, according to his disclosure. Judge Raymond Kethledge of the Sixth Circuit, appointed in 2008, received $100,000 through a multiyear buyout agreement with his former firm, Bush Seyferth & Paige (formerly Bush Seyferth & Kethledge.)
Sack and Gibson Dunn did not return interview requests. Kethledge declined to comment. A Bush Seyferth representative did not return interview requests.
Sack’s connection to Gibson Dunn caused at least one conflict, court records show. A Second Circuit panel — excluding Sack — barred the firm in 2000 from entering a bankruptcy case assigned to Sack. The firm should have known Sack might be forced to recuse if it got involved in the litigation, the court said.
Court records didn’t show any cases Kethledge heard involving Bush Seyferth.
AGREEMENTS WITH FORMER FIRMS
Eight other judges reported agreements with their former firms, most of which didn’t yield income.
Ninth Circuit Judge Sandra Ikuta reported a defined-benefit plan through O’Melveny & Myers. Court records show she participated in one case involving an O’Melveny client. She realized the conflict in March, according to a letter filed by the clerk of court alerting the parties about the recusal issue. Although Ikuta doesn’t control the plan and isn’t receiving payments, the connection required disqualification, according to the letter. No parties responded.
Four judges appointed in 2012 and 2013 reported law firm income earned just before they were confirmed. The ethics guidelines recommend judges wait at least two years before hearing cases involving a former firm. Court records showed no conflicts concerning those judges.
“It can look suspicious, even if unfairly suspicious, to a litigant if a firm has made a final payment to a judge on Day One … and three months later the judge decides an important motion in favor of that firm,” said Stephen Gillers, a professor at New York University School of Law.
This is the second part in a series on federal judicial disclosure reports. Contact reporter Zoe Tillman at email@example.com.