Did circuit judge do too much homework?

10/17/2010 © Sarasota Herald-Tribune
Column by Tom Lyons
Published: Sunday, October 17, 2010.

Since I liked her reprimand of a law firm that handles foreclosure cases by the bushel basket, I'm biased in favor of Circuit Judge Janette Dunnigan.
So f I were a judge assigned to review the propriety of that reprimand, I'd need to recuse myself. I wanted to find the law firm guilty as soon as I read that Dunnigan cited the lawyers there for contempt and assessed them a fine. But anyone familiar with the work of foreclosure mills in general should be biased against them.
Such firms have become infamous for filing documents signed by robo-signers, often clerks who use fancy titles that make them sound important but who have little idea what is in the thousands of documents they put their signatures on to attest to their accuracy and truth.

That revelation now threatens to bring the real estate legal world to a crisis state, as more judges have caught on.
Smith, Hiatt and Diaz, a Fort Lauderdale law firm that files thousands of foreclosures statewide on behalf of mortgage loan servicers, was reprimanded and later cited for contempt by Judge Dunnigan, who fined the firm $49,000.
Among other things, the judge said they repeatedly failed to show for hearings the firm had scheduled.
After previous apologies, the fine and contempt citing inspired the firm to fire back at Judge Dunnigan. The firm's motion seeks to get her -- literally and metaphorically -- off their case.
The firm says the judge got some facts wrong, and a motion claims that in two no-show cases the firm had sent notice to cancel the hearings.
Maybe the judge didn't get every detail right. But the pattern of behavior was real, as the judge found when she checked on other courts.
Way to go, judge, I'd say. But the law firm is trying to use the judge's diligence against her, claiming it is a violation of judicial ethics for her to seek or use evidence not presented in her court.
Justice is supposed to be blind, and sometimes it is required to be ignorant. When one side of a civil suit fails to bring in some useful facts, for instance, it is improper for a judge to help by running her own investigation.
But does the same apply when a judge is citing a law firm for bad behavior in her own court, and she wants to be sure that behavior was typical and not flukish?
Here's the solid, unwavering word on that from several judges, and from the director of the Judicial Qualifications Commission, the state organization that investigates judicial ethics complaints. All agree: They can't even opine, because it would be unethical to do so while the matter is pending.
Argh!
I'm not qualified to guess, but I can cite this in favor of my hope that Dunnigan was doing the right thing: According to past advice from the state panel that advises judges on ethical matters, judges are supposed to check into the facts after they encounter an alleged lawyer in their court he or she suspects is practicing law without a license.
That isn't so different from Dunnigan checking on lawyers who clearly have more cases than they can handle, and who admittedly rely heavily on clerical workers to create and file massive numbers of the court documents the lawyers there Barely see.
But I can see why such a firm would prefer that a judge know as little as possible about what the firm has been doing in other courts. The facts do tend to create a bias -- just like mine.

Tom Lyons can be contacted at tom.lyons@heraldtribune.com or (941) 361-4964.