Boatwright is Dry-Docked

June 30, 2015 § 10 Comments

The legal travails of Toulman and Grace Boatwright have been chronicled here before.

To bring you up to date, this is the case in which: (1) a chancellor recused before ruling on a R59 motion; (2) the remaining chancellor refused to rule on the motion; (3) there was an appeal; (4) the COA reversed on the basis that the second chancellor should have ruled on the motion; (5) on remand the second chancellor recused, and a special chancellor took up the case and ruled on the R59 motion; (6) Toulman appealed again; (7) five (yes, 5) judges of the COA recused (if you’re counting, that’s seven recusals in this saga); and (8) the COA affirmed in Boatwright v. Boatwright, handed down June 23, 2015.

It seems a shame to draw the curtain closed on this epic, which arose in 2004, more than eleven years ago. (Of course, if cert is granted …)

Judges Carlton, Lee, and Irving would have granted a new trial, which would have kept this case going for perhaps an additional eleven years (optimistically speaking).

In case you’re trying to diagram this: McGehee wrote the prevailing opinion, in which Griffis, and Ishee joined; Carlton, Lee, and Irving dissented. Barnes, Roberts, Maxwell, Fair, and James did not participate. A 3-3 tie is an affirmance.

On the serious side, both the majority opinion, written by Special Judge McGehee, and the dissent, penned by Judge Carlton, address some weighty issues of judicial ethics arising out of the social relationships between attorneys and judges. This particular case came to grief when the chancellor accepted an invitation to go turkey hunting with one of the lawyers involved in the Boatwright litigation while the case was pending. Both opinions discuss the ethical considerations involved and their ramifications.

As with many ethical questions, there are not only murky areas, but different people in good faith can see things differently and draw different conclusions, as was the case here.

What is sometimes difficult to see is where to draw the line. In the Guardianship of McClinton case decided only last February by the COA, the court brushed aside attorney Michael Brown’s argument that the judge had an improper social relationship with another attorney in the case because the judge frequently had lunch with that attorney and they attended college football games together. For those of us here on the ground, it can be hard to draw distinctions so as to arrive at a firm idea of appropriate conduct.

The main thing is for us all to take to heart the serious ethical implications involved in the social interactions between lawyers and judges, and to be sensitive to them. It’s absolutely true that litigants, their families and friends, and passers-by are watching everything we do and drawing their own conclusions.

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§ 10 Responses to Boatwright is Dry-Docked

  • David says:

    Well, I’ll just leave myself out on a limb here and see who cuts it off. In 41 years of law practice, I’ve found our judicial system corrupt, and incapable of reform. I don’t like the idea of appointed judges, and I am skeptical of elected judges, who owe their position to their donors. I don’t have an answer. I learned early on who the judge’s “favorites” are, and they ruled the roost. They they still do. I’ve challenged several judges for recusal, and always lost. And then lost the case from their rulings. I will contend it was not for lack of merit of my client’s cases, all I asked for was a level field. Judicial corruption is subtle and hard to detect, and almost impossible to prove. But it is there.

    • Larry says:

      Sad to say that happens. I have experienced it myself. Other than one judge, who is now gone, however, I have to say that my experience, over 33 years in practice and 8 1/2 on the bench, has been contrary. That level playing field concept is vitally important.

  • John Shirley says:

    I hope every attoney reads this opinion which has disagreements by the appellate court about judicial ethics. I served for eight years as a member of the Commission on Judicial Performance where we reviewed complaints filed against judges. In almost every meeting, someone had filed a complaint that “the judge discussed my case privately with the attorney for the other side.” In the vast majority of the cases, an investigation revealed something as simple as “I saw the judge shake hands with the attorney and they talked.” Actually, the complainant didn’t hear the conversation but was convinced the judge and the attorney for the other side discussed the case. Upon investigation, what actually occurred may have been a conversation as simple as “Attorney: ‘Judge, good to see you. How have you been?'” “Judge: ‘Fine. Good to see you. How have you been?'” “Attorney: ‘Fine.'”

    The lesson learned: Judge might want to avoid talking to attorneys before court even though the attorneys may now think the judge is a snob. Following that policy helps avoid baseless complaints that have to be investigated, but sometimes irritates attorneys that don’t know the judge”s reasoning. If the judge doesn’t follow that suggestion, the judge should at least reveal, in court, the nature of any conversations that occurred before court thereby giving anyone the opportunity to ask for recusal. Some judges will probably think the suggestion is ludicrous — at least until they are the respondent in a baseless complaint.

  • randywallace says:

    Could it be that Special Justice McGehee, as a hunter, realized that there is significant value in gifted turkey hunts and that inviting someone to turkey hunt on your property is more than a mere social interaction?

  • carter says:

    But what if the hunter were Antonin Scalia?

  • Bruce says:

    The dissent thinks 3-7 social interactions over a 5 yr period and nothing more is grounds for recusal? Over my 37 yr career with numerous circuit chancery justice municipal and youth court judges in my county, i have had that many social contacts with nearly all of them. With their logic, few judges in small counties could hear cases.
    Why the emphasis on the close relationship of grace and her attys? Is that improper?

    • Larry says:

      That’s why I made the reference to McClinton. It’s difficult to see where to draw the line.

    • reidkrell says:

      Having read the briefs in this case, I’m inclined to think that Toulman was misserved by his lawyer. Not that Grace’s lawyers wrote a gangbusters brief either, but Toulman’s left me wondering how this issue was supposed to be handled in counties where there’s only a few lawyers doing this sort of practice.

      I would note also that the federal courts have, I think, the best possible system for managing this, where judges simply have recusal lists in the clerk’s office – lawyers whose cases they won’t hear. You put the people you want to maintain social contact with on that list, and cut everybody else out of your life. But because our judges aren’t tied to particular counties, and I have yet to see a county where cases can be FILED electronically, the logistics of these things become awkward.

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