08-3187 Volume Appendix15.pdf - Medical Supply Chain

“A judge is responsible for his or her own conduct and for the conduct of
others, such as court personnel, when those persons are acting under the
judge’s direction or control. A judge may not direct court personnel to
engage in conduct on the judge’s behalf or as the judge’s representative
when such conduct would violate the Code if undertaken by the judge.”
The respondent’s magistrate communicated falsely while under oath to the
Kansas Attorney Disciplinary Panel in January 20005 about the petitioner’s
litigation which was still ongoing and in appeal. The comment to Canon 3A(6)
states: “The admonition against public comment about the merits of a pending or
impending action matter continues until completion of the appellate process.”
The petitioner in his affidavit (itself attacked without basis by the respondent
as untruthful in the respondent’s Memorandum and Order of Dismissal) described
the magistrate staying back to talk ex parte to the tribunal members an extrinsic
fraud used to procure the disbarment that the petitioner witnessed and no one
disputes.
It is well settled, of course, that a judge is not subject to discipline for
exercising his discretion in performing a judicial act, even if his decision be
erroneous (In re Laughlin, 153 Tex. 183, 265 S.W.2d 805, appeal dismissed,
348 U.S. 859, 75 S.Ct. 84, 99 L.Ed. 677; In re McGarry, 380 Ill. 359, 44
N.E.2d 7). However, not every act of a judge done in the performance of his
duty is an act of judicial discretion. As the court said in Bar Assn. v. Franko,
168 Ohio St. 17, 151 N.E.2d 17:
“Although it is quite true that a mere mistake in the exercise of judicial
discretion by a judge is not and should never be the cause or subject of a
disciplinary proceeding under the Canons of Judicial Ethics prescribed by
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08-3187 Medical Supply Chain vs. Neoforma Volume XV 5721