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22 janvier, 2008 12:09

Dan Levine

The Recorder

01-22-2008

It seems the disciplinary actions involving Los Angeles federal Judge Manuel Real just won't die.

At the same time the U.S. Judicial Conference upheld a decision last week to censure Real for improper ex parte communications with a litigant, the conference revealed a second complaint regarding a "pattern and practice" of Real not providing adequate reasons for his decisions when required to do so.

The Judicial Council of the Ninth Circuit had privately reprimanded Real for that behavior. But the national conference remanded the matter back to the 9th Circuit for more fact-finding on whether Real had acted willfully.

"If the council finds willfulness, it should consider a more severe sanction," the opinion states, "such as a public censure or reprimand and an order that no further cases be assigned to the judge for a particular period of time."

Real did not return a phone call seeking comment. His lawyer, Donald Smaltz of Spiegel Liao & Kagay in Rancho Palos Verdes, Calif., declined to comment.

The complaint involving Real's contact with a bankruptcy litigant has long been an issue before the 9th Circuit, whose handling of it helped spur national calls for reform of the judicial discipline process.

Los Angeles attorney Stephen Yagman accused Real in 2003 of improperly interfering in a bankruptcy case to protect a probationer Real was supervising. At first, former 9th Circuit Chief Judge Mary Schroeder dismissed the complaint without appointing a special committee to investigate. A divided 9th Circuit council confirmed her decision.

But with Congress weighing impeachment proceedings against Real, Schroeder eventually did appoint an investigative committee. The 9th Circuit council recommended a public reprimand in 2006.

Real appealed to the national conference's Committee on Judicial Conduct and Disability, which rejected his arguments in an opinion dated Jan. 14.

"The judge's claim that he has been punished enough is not compelling because the lack of any sanction would appear to ratify the judge's view that no serious misconduct occurred," the conference committee judges wrote.

But the committee also rejected Yagman's argument that censure was too light a penalty.

"A public reprimand is within the discretion of the council, was arrived at through a full consideration of the available alternatives, and should not be overturned," the committee wrote.

The judicial conference is currently weighing new rules for judicial discipline, which may be voted on in March. Some judges fear the reforms will remove some local discretion from the process. Second U.S. Circuit Court of Appeals Judge Ralph Winter chairs the reform committee, yet he also helped pen the Real decision, which left intact the 9th Circuit's judgment.

Thus, by releasing its Real opinion now, the conference may be trying to allay judges' fears, said Arthur Hellman, a professor at the University of Pittsburgh School of Law.

"This is a very strong signal that they're not going all the way, that they're leaving some room for exercising discretion on a regional level within the circuits," Hellman said.

Yagman, who has since been convicted of tax evasion and disbarred, said a complaint against a judge in the 9th Circuit has now finally received the attention it warranted.

"To me, it seems to have taken too long, but I am hopeful that in the future a complaint against a judge will be handled more expeditiously," he said.