An opinion from the U.S. Court of Appeals for the Third Circuit was swiftly vacated two business days after it was issued November 29.
Judge Julio Fuentes had written the opinion, issued as not precedential, on behalf of a three-judge panel. Unbeknownst to Fuentes, his daughter, Karina Fuentes, a lawyer in the New Jersey Public Defender’s Office, had worked on the appellant’s brief.
In the opinion written by Judge Fuentes, the court ruled against attorney Fuentes’ client.
The lawyer called Judge Fuentes as soon as her office got a copy of the court’s opinion, realizing that her father was on the panel that decided in the case. He then called the other two judges on the panel and the court vacated the opinion, which will be presented to a new panel.
The Third Circuit has a system in the clerk’s office for ensuring proper recusals, Fuentes said, but it’s not designed to catch attorneys on the briefs; rather, it catches those who will appear before the court.
Karina Fuentes is listed as the research and writing attorney on the brief.
Judge Fuentes doesn’t look at the attorneys on the briefs, he said, because the issues they present are more important. That’s where he focuses, he said.
His staff are instructed to check for connections, he said, “but this one slipped through.”
Both he and his daughter are glad that the situation could be dealt with, Fuentes said.
“We didn’t catch it in time,” he said, expressing regret that having the case reassigned would burden his colleagues.
“The key is disclosure,” said Samuel C. Stretton, a lawyer who represents judges and lawyers in disciplinary proceedings and who writes an ethics column for The Legal, commenting broadly.
“Judges know a lot of people,” he said, and if they make the disclosure up front, it gives the parties an opportunity to weigh in and avoids the appearance of impropriety.
Guarding the integrity of the institution is important, said Drinker Biddle & Reath attorney Lawrence Fox, who teaches professional responsibility at Yale Law School, both for the parties in a given case as well as the public at large.
Here, he said, “I think everyone’s acted properly.”
Fuentes ruled against his daughter’s client, affirming the District of New Jersey judge who sentenced Joseph Passalaqua to 190 months in prison for conspiring to commit robbery in violation of the Hobbs Act.
“At the time of his sentencing, Passalaqua was a 57-year-old college graduate, former champion gymnast and owner of a gymnastics, dance and karate school,” Fuentes wrote in the now-vacated opinion.
Although he didn’t carry them out himself, Passalaqua had organized the robberies of various restaurants and homes of restaurant owners with whom he had a “personal vendetta,” according to the opinion. He was arrested after he was recorded agreeing to murder three people for cash payment.
On appeal, Passalaqua argued that his sentence was substantively unreasonable. The three-judge panel Fuentes wrote for disagreed.
Fuentes’ situation comes on the heels of a failure to disclose a family relationship in Pennsylvania’s state court system earlier this fall. In October, Philadelphia Court of Common Pleas Judge Allan L. Tereshko resigned as supervising judge of the trial division’s civil section following criticism from the Superior Court because he didn’t disclose that his wife used to work at a firm that was representing a party in his court before he ruled on a motion in the case.
“He took a hard line with himself,” Stretton said of Tereshko. “He really had to.”
The Superior Court, which reversed Tereshko’s opinion on other grounds, admonished him for failing to make the disclosure.
Although he had made a standing order when he was appointed to be the supervising judge last November to recuse himself from any case in which his wife’s former firm was involved, this case predated the order, he explained in October. “I didn’t want to take away from the great work the civil division is doing,” Tereshko said at the time of his decision to resign.
Regarding the Third Circuit case, Fox said “this one was handled right.”
The opinion was vacated as soon as the oversight became apparent.
“Things get missed in honest ways,” he said. “It’s a shame, but that’s the right result.”