1
00:00:03,200 --> 00:00:08,000
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

2
00:00:09,480 --> 00:00:12,479
Speaker 1: Lawyers have long served on the boards of privately held

3
00:00:12,520 --> 00:00:17,320
Speaker 1: companies and nonprofits, and public companies are increasingly looking for

4
00:00:17,400 --> 00:00:21,239
Speaker 1: lawyers to become corporate directors, bringing their legal expertise to

5
00:00:21,280 --> 00:00:24,920
Speaker 1: the boardroom and prestige to the attorneys who can navigate

6
00:00:24,960 --> 00:00:29,440
Speaker 1: potential conflicts. My guest is, when Den Eolis of Eolis

7
00:00:29,440 --> 00:00:33,600
Speaker 1: International Group, a legal recruiting company, are you seeing more

8
00:00:33,680 --> 00:00:37,800
Speaker 1: lawyers being considered for board seats or getting on boards.

9
00:00:38,640 --> 00:00:43,920
Speaker 2: Absolutely, there's been a sea change in the interest in

10
00:00:43,920 --> 00:00:48,800
Speaker 2: including lawyers in the mix of skills and abilities and

11
00:00:48,960 --> 00:00:55,000
Speaker 2: background with very major corporations and in the companies that

12
00:00:55,040 --> 00:00:59,880
Speaker 2: we deal with. They are not the focal point in

13
00:01:00,120 --> 00:01:03,240
Speaker 2: many cases, but they are part of the mix. And

14
00:01:03,320 --> 00:01:06,680
Speaker 2: that was not the case during the past twenty years

15
00:01:06,720 --> 00:01:10,880
Speaker 2: to nearly the same level before that. For lawyers used

16
00:01:10,880 --> 00:01:15,440
Speaker 2: to be on boards frequently because the CEOs who worked

17
00:01:15,440 --> 00:01:19,000
Speaker 2: with them knew them, were comfortable with them, and wanted

18
00:01:19,000 --> 00:01:21,360
Speaker 2: to bring them in. But there have been a whole

19
00:01:21,440 --> 00:01:25,000
Speaker 2: host of changes in the way in which companies work

20
00:01:25,240 --> 00:01:28,679
Speaker 2: with lawyers and law firms, and there's been a big

21
00:01:28,800 --> 00:01:34,280
Speaker 2: change that's been created by chief legal officers having significant

22
00:01:34,440 --> 00:01:41,560
Speaker 2: responsibility internally and the outside lawyers not necessarily having as

23
00:01:41,640 --> 00:01:45,880
Speaker 2: close a relationship with their clients the CEO as they

24
00:01:46,000 --> 00:01:49,480
Speaker 2: used to because they have a much greater responsibility to

25
00:01:49,640 --> 00:01:50,920
Speaker 2: the chief legal officer.

26
00:01:50,960 --> 00:01:54,640
Speaker 1: Where there is from are the lawyers on boards, generally

27
00:01:54,840 --> 00:01:59,880
Speaker 1: lawyers with business backgrounds or general counsel at businesses.

28
00:02:00,440 --> 00:02:04,560
Speaker 2: There are really a great variety of backgrounds for the

29
00:02:04,640 --> 00:02:08,359
Speaker 2: lawyers who end up on boards these days, because there's

30
00:02:08,680 --> 00:02:13,720
Speaker 2: an openness now to a variety of pieces in terms

31
00:02:13,760 --> 00:02:18,080
Speaker 2: of criteria. At the end of the day, what distinguishes

32
00:02:18,160 --> 00:02:20,400
Speaker 2: who does and who doesn't get on the board are

33
00:02:20,480 --> 00:02:24,400
Speaker 2: those who have the necessary credentials and fill the general

34
00:02:24,480 --> 00:02:29,160
Speaker 2: criteria and most of all look sound and feel as

35
00:02:29,200 --> 00:02:32,280
Speaker 2: if they will play well in the sandbox, and companies

36
00:02:32,320 --> 00:02:37,000
Speaker 2: call that chemistry. So the possibilities for lawyers are more

37
00:02:37,280 --> 00:02:43,359
Speaker 2: about their intellectual assets or they're not as concerned about

38
00:02:43,520 --> 00:02:47,440
Speaker 2: the specifics of the transactions they've worked on. They're more

39
00:02:47,560 --> 00:02:52,079
Speaker 2: concerned about how they approach the business. They're more concerned

40
00:02:52,520 --> 00:02:55,840
Speaker 2: about their ability to make the pivot from being a

41
00:02:55,919 --> 00:03:02,639
Speaker 2: counselor with great business judgment to become a a debater, deliberator,

42
00:03:02,840 --> 00:03:08,960
Speaker 2: and voter who understands and participates in policy making decisions.

43
00:03:09,440 --> 00:03:14,440
Speaker 2: So it doesn't matter what their particular discipline is for

44
00:03:14,600 --> 00:03:20,440
Speaker 2: some boards, for others the industry where the discipline is critical,

45
00:03:20,840 --> 00:03:22,160
Speaker 2: so it's a broad mix.

46
00:03:23,280 --> 00:03:26,800
Speaker 1: Is there a general figure for how much time it

47
00:03:26,840 --> 00:03:28,280
Speaker 1: takes to be on a board?

48
00:03:29,120 --> 00:03:29,520
Speaker 3: Yeah.

49
00:03:29,760 --> 00:03:33,200
Speaker 2: When we are talking with most of our client companies

50
00:03:33,639 --> 00:03:38,200
Speaker 2: because we are doing a search, generally speaking, I find

51
00:03:38,280 --> 00:03:42,320
Speaker 2: they have quarterly meetings. Many of them that have quarterly

52
00:03:42,360 --> 00:03:46,440
Speaker 2: meetings hold those meetings in different places, and so it

53
00:03:46,520 --> 00:03:48,880
Speaker 2: means you've got to travel to get there to the meeting.

54
00:03:49,440 --> 00:03:53,720
Speaker 2: On every board, you have obligations to attend one or

55
00:03:53,720 --> 00:03:57,400
Speaker 2: more committee meetings. Most people are on more than one

56
00:03:57,480 --> 00:04:00,400
Speaker 2: committee when they're a director, and you have to tend

57
00:04:00,440 --> 00:04:05,280
Speaker 2: those committee meetings. But then there are additional responsibilities and

58
00:04:05,720 --> 00:04:11,720
Speaker 2: obligations within those committees that requires projects to be addressed.

59
00:04:12,080 --> 00:04:15,360
Speaker 2: I think it's fair to say that a lawyer who

60
00:04:15,600 --> 00:04:20,040
Speaker 2: is active on boards but does not have a senior

61
00:04:20,560 --> 00:04:25,760
Speaker 2: leadership role on that board in terms of chairmanships of committees,

62
00:04:26,200 --> 00:04:31,200
Speaker 2: probably has to allocate somewhere around thirty days a year.

63
00:04:31,480 --> 00:04:35,400
Speaker 2: Now that might seem like it's not so much time.

64
00:04:35,480 --> 00:04:37,279
Speaker 2: Why couldn't you take three or six?

65
00:04:37,520 --> 00:04:37,719
Speaker 3: Right?

66
00:04:37,839 --> 00:04:40,719
Speaker 2: But the truth of the matter is that there are

67
00:04:41,120 --> 00:04:44,800
Speaker 2: conflicts in terms of when those board meetings will take place.

68
00:04:45,279 --> 00:04:48,760
Speaker 2: There are conflicts in terms of being on one board

69
00:04:48,800 --> 00:04:51,960
Speaker 2: and what other boards can you be on. And there's

70
00:04:51,960 --> 00:04:55,320
Speaker 2: a big logistics issue in terms of the kind of

71
00:04:55,360 --> 00:04:58,000
Speaker 2: work you're doing, the environment in which you're doing it,

72
00:04:58,360 --> 00:05:01,200
Speaker 2: the industry in which you are at active, and how

73
00:05:01,240 --> 00:05:05,359
Speaker 2: that plays against the interests of other boards being able

74
00:05:05,839 --> 00:05:08,760
Speaker 2: to consider you and you being able to consider them

75
00:05:08,800 --> 00:05:12,279
Speaker 2: as you're a lawyer. The thirty days that I suggest

76
00:05:12,800 --> 00:05:17,720
Speaker 2: is truly the minimum. As a practical matter, boards invariably

77
00:05:17,800 --> 00:05:21,880
Speaker 2: get the biggest challenges and the biggest opportunities, and that

78
00:05:22,000 --> 00:05:25,760
Speaker 2: means being available at the time of those challenges and

79
00:05:25,839 --> 00:05:30,040
Speaker 2: opportunities develop, and they don't develop on any individual's timetable.

80
00:05:30,640 --> 00:05:32,960
Speaker 1: Is it easier to get on a board if you've

81
00:05:33,000 --> 00:05:34,200
Speaker 1: been on boards before.

82
00:05:35,240 --> 00:05:38,520
Speaker 2: There is no question in my mind that there is

83
00:05:38,760 --> 00:05:43,760
Speaker 2: absolutely no situation in which you will get on a

84
00:05:43,800 --> 00:05:47,760
Speaker 2: board more easily than if you've already had a board seat.

85
00:05:47,960 --> 00:05:50,760
Speaker 2: You know, they say about actors that you have to

86
00:05:50,800 --> 00:05:53,240
Speaker 2: have an equity card to get a park, but you

87
00:05:53,320 --> 00:05:55,400
Speaker 2: have to have a park to get an equity card.

88
00:05:55,600 --> 00:05:58,520
Speaker 2: It's really like the same problem in order to get

89
00:05:58,520 --> 00:06:01,400
Speaker 2: a board seat. Nothing is better than having had one

90
00:06:01,720 --> 00:06:05,160
Speaker 2: at the same time, Until you've had one, it's hard

91
00:06:05,160 --> 00:06:07,600
Speaker 2: to get the board seat. So the chicken and egg

92
00:06:07,720 --> 00:06:10,840
Speaker 2: problem which exists in the rest of the world is

93
00:06:11,120 --> 00:06:14,719
Speaker 2: applicable when it comes to lawyers on boards as well.

94
00:06:15,320 --> 00:06:18,279
Speaker 1: And how important are connections and getting a board seat.

95
00:06:18,560 --> 00:06:22,920
Speaker 2: Now those connections ten, fifteen, twenty years ago and more

96
00:06:23,480 --> 00:06:30,560
Speaker 2: were frequently a function of personal relationships. Now boards understand

97
00:06:31,040 --> 00:06:34,680
Speaker 2: that they can get a lot of information about lawyers,

98
00:06:34,920 --> 00:06:39,080
Speaker 2: and they will use companies like ours, for example, for

99
00:06:39,240 --> 00:06:44,000
Speaker 2: the purposes of betting, helping them to put lawyers into

100
00:06:44,040 --> 00:06:49,800
Speaker 2: the pipeline and for giving them ideas of where successful

101
00:06:49,880 --> 00:06:54,320
Speaker 2: lawyers are and what seems to be making them successful

102
00:06:54,680 --> 00:06:57,760
Speaker 2: within the boardroom as a whole, But there is no

103
00:06:57,960 --> 00:07:02,239
Speaker 2: substitute for an end, whether it's a lawyer or anyone else.

104
00:07:02,600 --> 00:07:07,440
Speaker 2: Having connections to a non gov chairman, to a CEO,

105
00:07:07,720 --> 00:07:11,240
Speaker 2: to an executive chairman, that is still going to be

106
00:07:11,880 --> 00:07:16,360
Speaker 2: very important in the process, which is why with our clients,

107
00:07:16,520 --> 00:07:20,520
Speaker 2: individual lawyers we work with them in preparing for board

108
00:07:20,600 --> 00:07:26,520
Speaker 2: service on what's called network mapping, which simply means understanding

109
00:07:26,560 --> 00:07:29,720
Speaker 2: their connections and the value of them, and learning how

110
00:07:29,760 --> 00:07:34,320
Speaker 2: to exponentially expand them so that in addition to the

111
00:07:34,440 --> 00:07:39,000
Speaker 2: opportunities that we may have for them, that they will

112
00:07:39,040 --> 00:07:44,400
Speaker 2: also be much more empowered to develop opportunities because of

113
00:07:44,440 --> 00:07:47,200
Speaker 2: the people who could be helpful to them.

114
00:07:47,760 --> 00:07:52,560
Speaker 1: Have you seen that including lawyers adds to the diversity

115
00:07:52,640 --> 00:07:53,320
Speaker 1: on boards?

116
00:07:53,960 --> 00:07:59,280
Speaker 2: We know that boards are talking about diversity, and that

117
00:07:59,320 --> 00:08:05,560
Speaker 2: includes underrepresented minorities and women, and in every area there

118
00:08:05,600 --> 00:08:09,080
Speaker 2: are a great number of boards that are doing an

119
00:08:09,080 --> 00:08:16,040
Speaker 2: extraordinarily good job on focusing on this issue, and it's

120
00:08:16,080 --> 00:08:19,520
Speaker 2: a big issue. I always tell people, if you expand

121
00:08:19,600 --> 00:08:22,080
Speaker 2: your notion of who want to fit into your potential

122
00:08:22,120 --> 00:08:25,600
Speaker 2: talent pool, you can double your potential talent pool and

123
00:08:25,680 --> 00:08:29,840
Speaker 2: get people you might not otherwise ever consider, who have

124
00:08:30,320 --> 00:08:34,239
Speaker 2: incredible breadth and depth in areas you may not typically

125
00:08:34,280 --> 00:08:39,280
Speaker 2: even think about. The diversity issue right now is one

126
00:08:39,360 --> 00:08:42,240
Speaker 2: on which I think it's fair to say boards are

127
00:08:42,880 --> 00:08:48,000
Speaker 2: very very concerned in general, and they are demonstrating that

128
00:08:48,160 --> 00:08:53,359
Speaker 2: concern by increasing, particularly the percentage of women on their boards.

129
00:08:53,600 --> 00:08:59,000
Speaker 2: The number one requirement for a board member for most

130
00:08:59,040 --> 00:09:01,960
Speaker 2: of our clients is wisdom and.

131
00:09:02,200 --> 00:09:11,200
Speaker 3: That comes in many different flavors, many different cultural backgrounds, industries, expertise, credentials,

132
00:09:11,720 --> 00:09:14,200
Speaker 3: and it's a wide open slate.

133
00:09:14,920 --> 00:09:20,520
Speaker 2: We know that the issue of protecting shareholder profit is

134
00:09:20,720 --> 00:09:24,000
Speaker 2: a key piece in the puzzle for every board member,

135
00:09:24,440 --> 00:09:30,320
Speaker 2: but we also know that environmental issues, social responsibility issues,

136
00:09:30,520 --> 00:09:36,120
Speaker 2: governance are critical. We know that dealing with compensation, both

137
00:09:36,240 --> 00:09:39,720
Speaker 2: within the board and internally in the company are issues

138
00:09:39,760 --> 00:09:43,480
Speaker 2: that have become far more complex. So there is no

139
00:09:43,800 --> 00:09:50,640
Speaker 2: shortage of board directorship needs and certainly an increasing and

140
00:09:50,760 --> 00:09:56,120
Speaker 2: expanding opportunity for lawyers because of the nature of risk

141
00:09:56,200 --> 00:09:59,760
Speaker 2: assessment and governance that moves at the speed of light

142
00:10:00,200 --> 00:10:02,040
Speaker 2: in terms of issues of.

143
00:10:01,960 --> 00:10:05,199
Speaker 1: Import Thanks for being on the show, Wendin. That's Wehn

144
00:10:05,280 --> 00:10:10,120
Speaker 1: Deini Jolis of the Eolis International Group. Over the last

145
00:10:10,160 --> 00:10:14,319
Speaker 1: four months, the investigation into whether the nation's oldest federal

146
00:10:14,440 --> 00:10:18,160
Speaker 1: judge is able to perform her duties has become public

147
00:10:18,400 --> 00:10:21,800
Speaker 1: in a way that's unusual for the federal judiciary, and

148
00:10:21,840 --> 00:10:24,880
Speaker 1: now a three judge panel of the Federal Circuit, the

149
00:10:24,920 --> 00:10:28,160
Speaker 1: same appellate court that judge Pauline Newman, has sat on

150
00:10:28,320 --> 00:10:33,040
Speaker 1: for nearly forty years, has voted unanimously to sanction the

151
00:10:33,120 --> 00:10:36,840
Speaker 1: ninety six year old judge over her refusal to cooperate

152
00:10:36,880 --> 00:10:40,600
Speaker 1: with an investigation into her mental fitness. Newman has fought

153
00:10:40,640 --> 00:10:44,760
Speaker 1: back against the investigation by suing her colleagues, accusing them

154
00:10:44,800 --> 00:10:48,520
Speaker 1: of violating the Constitution. She's known for her descents and

155
00:10:48,600 --> 00:10:51,120
Speaker 1: believes that her colleagues are trying to get rid of

156
00:10:51,120 --> 00:10:52,880
Speaker 1: her to avoid that scrutiny.

157
00:10:53,520 --> 00:10:58,640
Speaker 4: I think the nation needs my voice. I think that

158
00:10:58,720 --> 00:11:03,240
Speaker 4: if the judges on this court are willing and more

159
00:11:03,280 --> 00:11:08,600
Speaker 4: than willing to push me out in order to get

160
00:11:08,640 --> 00:11:11,560
Speaker 4: me out of the way so that no one says

161
00:11:11,679 --> 00:11:15,320
Speaker 4: that they've made a mistake, that I need to be

162
00:11:15,440 --> 00:11:18,520
Speaker 4: here to countermand.

163
00:11:17,880 --> 00:11:21,800
Speaker 1: That joining me is ethics. Law expert Arthur Hellman, a

164
00:11:21,800 --> 00:11:25,520
Speaker 1: professor at the University of Pittsburgh Law School. Arthur the

165
00:11:25,600 --> 00:11:29,520
Speaker 1: panel released its one hundred eleven page report along with

166
00:11:29,600 --> 00:11:33,720
Speaker 1: more than two hundred pages of exhibits. How unusual is

167
00:11:33,800 --> 00:11:37,320
Speaker 1: it for the judicial panel to release its report for

168
00:11:37,400 --> 00:11:38,280
Speaker 1: the public to read.

169
00:11:39,240 --> 00:11:42,360
Speaker 5: That's never happened before. As far as I'm aware that

170
00:11:42,440 --> 00:11:46,280
Speaker 5: the Judicial Counsel because I suppose the Judicial Council must

171
00:11:46,280 --> 00:11:50,480
Speaker 5: have been the entity that authorized it would publicly issue

172
00:11:50,600 --> 00:11:56,240
Speaker 5: a special Committee report in advance of the Judicial Council decision.

173
00:11:56,679 --> 00:12:00,040
Speaker 5: That has never happened. In fact, in most instances, the

174
00:12:00,040 --> 00:12:03,880
Speaker 5: special Committee report itself is never published at all. The

175
00:12:04,000 --> 00:12:09,640
Speaker 5: Judicial Council summarizes the conclusions and perhaps quotes from it,

176
00:12:10,160 --> 00:12:14,520
Speaker 5: but ordinarily this would not be a public document. So

177
00:12:15,160 --> 00:12:19,000
Speaker 5: it's unprecedented that it would not be only made public,

178
00:12:19,360 --> 00:12:22,960
Speaker 5: but made public in advance of the Judicial Council decision.

179
00:12:23,559 --> 00:12:26,480
Speaker 5: Judicial Council is the body that has the authority to

180
00:12:27,040 --> 00:12:28,600
Speaker 5: impose sanctions.

181
00:12:28,840 --> 00:12:33,120
Speaker 1: Do you think it was released because of how public

182
00:12:33,200 --> 00:12:38,200
Speaker 1: this has become and how Judge Newman herself has responded

183
00:12:38,480 --> 00:12:38,880
Speaker 1: to this.

184
00:12:39,600 --> 00:12:44,880
Speaker 5: Well, it could be a product of the fact that

185
00:12:45,040 --> 00:12:51,280
Speaker 5: Judge Newman has repeatedly called for release of materials and

186
00:12:51,559 --> 00:12:56,800
Speaker 5: public availability of proceedings that ordinarily are confidential, not only

187
00:12:56,920 --> 00:13:01,800
Speaker 5: while they're happening, but even afterwards. So it could be

188
00:13:01,880 --> 00:13:05,320
Speaker 5: that I find myself wondering though, if committee did not

189
00:13:05,480 --> 00:13:10,400
Speaker 5: make a decision, that they would issue the evidence first,

190
00:13:10,679 --> 00:13:14,800
Speaker 5: and then in a week or two, the Judicial Council

191
00:13:15,000 --> 00:13:17,920
Speaker 5: would issue a decision, and I have no doubt that

192
00:13:18,000 --> 00:13:22,800
Speaker 5: the Council will act in accordance with the recommendations, in

193
00:13:22,840 --> 00:13:26,680
Speaker 5: other words, laying the groundwork for the decision. But it's

194
00:13:26,720 --> 00:13:31,400
Speaker 5: still something that I think was unnecessary and probably undesirable.

195
00:13:32,320 --> 00:13:34,880
Speaker 1: So let's just step back a moment for those who

196
00:13:35,160 --> 00:13:39,400
Speaker 1: don't know what's been happening. It started with other judges

197
00:13:39,480 --> 00:13:44,480
Speaker 1: and court staff raising concerns about Judge Newman's health. She

198
00:13:44,720 --> 00:13:47,520
Speaker 1: was said to have suffered a fainting spell where she

199
00:13:47,600 --> 00:13:50,800
Speaker 1: was unable to walk without assistance after oral arguments in

200
00:13:50,800 --> 00:13:54,080
Speaker 1: May of twenty twenty two. Just tell us what happened

201
00:13:54,120 --> 00:13:56,359
Speaker 1: after that so we can get an idea of the sequence.

202
00:13:56,840 --> 00:14:01,520
Speaker 5: Well, reports came to the Chief Judge, Chief Judge Kimberly Moore,

203
00:14:02,040 --> 00:14:08,400
Speaker 5: primarily interactions with court's staff, but it did include some

204
00:14:08,640 --> 00:14:14,240
Speaker 5: interactions with judges. Those reports were enough to persuade the

205
00:14:14,360 --> 00:14:18,680
Speaker 5: Chief Judge that there was a possible problem with Judge

206
00:14:18,720 --> 00:14:24,360
Speaker 5: Newman's mental capacity, and so she took steps to investigate

207
00:14:24,440 --> 00:14:27,840
Speaker 5: us was quite proper and indeed what she should have

208
00:14:27,880 --> 00:14:33,040
Speaker 5: done under the statute that Congress passed. Judge Moore engaged

209
00:14:33,120 --> 00:14:38,080
Speaker 5: in that preliminary investigation decided that there was enough to

210
00:14:38,160 --> 00:14:42,160
Speaker 5: move forward, and I think she asked Judge Newman to

211
00:14:42,640 --> 00:14:48,000
Speaker 5: voluntarily take senior status, but she told Judge Newman that

212
00:14:48,280 --> 00:14:54,360
Speaker 5: she would be identifying a complaint that initiates a formal proceeding,

213
00:14:54,960 --> 00:14:59,280
Speaker 5: and so that started the proceeding that led to this report.

214
00:15:00,080 --> 00:15:03,560
Speaker 1: Seems to have escalated this dispute is that Judge Newman

215
00:15:03,720 --> 00:15:07,400
Speaker 1: refused to cooperate with the committee in any way and

216
00:15:07,480 --> 00:15:09,800
Speaker 1: refused to submit to medical testing.

217
00:15:10,160 --> 00:15:12,920
Speaker 5: Yeah, that's exactly right, June. And that is one of

218
00:15:12,920 --> 00:15:16,560
Speaker 5: the things that makes this unique, I think, and also

219
00:15:16,800 --> 00:15:21,360
Speaker 5: very troubling because at each stage Judge Moore and the

220
00:15:21,400 --> 00:15:27,160
Speaker 5: Special Committee asked what they ordered Judge Newman to do

221
00:15:27,200 --> 00:15:30,920
Speaker 5: these various things, submit to testing and submit to interviews

222
00:15:30,960 --> 00:15:36,000
Speaker 5: and so forth, and each time Judge Newman said yes,

223
00:15:36,080 --> 00:15:41,520
Speaker 5: but only under certain conditions, the Chief Judge added to

224
00:15:41,880 --> 00:15:48,520
Speaker 5: the charges charges of misconduct based on failure to cooperate.

225
00:15:49,040 --> 00:15:53,600
Speaker 5: So it was indeed an escalate proceeding where we had

226
00:15:53,640 --> 00:15:57,760
Speaker 5: this back and forth and each time new charges were added,

227
00:15:58,320 --> 00:16:05,040
Speaker 5: until finally the Special Committee ended up limiting its initial

228
00:16:05,160 --> 00:16:10,800
Speaker 5: consideration only to the misconduct charges of failing to cooperate,

229
00:16:11,120 --> 00:16:15,480
Speaker 5: and nominally that is what this order is about. It's

230
00:16:15,520 --> 00:16:20,280
Speaker 5: not about the disability. Well, that's obviously what underlies it,

231
00:16:20,520 --> 00:16:25,840
Speaker 5: but the sanction is imposed for the misconduct of failing

232
00:16:25,920 --> 00:16:29,440
Speaker 5: to cooperate. And I think that's a serious problem here

233
00:16:29,480 --> 00:16:33,400
Speaker 5: because there's really a mismatch between the underlying concern, which

234
00:16:33,480 --> 00:16:38,200
Speaker 5: is disability, and the formal charge, which is misconduct by

235
00:16:38,240 --> 00:16:39,880
Speaker 5: reason of failure to cooperate.

236
00:16:40,280 --> 00:16:44,040
Speaker 1: It seems like that failure to cooperate, it's hard for

237
00:16:44,160 --> 00:16:48,840
Speaker 1: Judge Newman to disagree with that because she hasn't cooperated.

238
00:16:49,480 --> 00:16:54,000
Speaker 5: That is certainly true, she hasn't cooperated. But her argument,

239
00:16:54,080 --> 00:16:58,440
Speaker 5: which the committee rejects, is that her failure to cooperate

240
00:16:59,120 --> 00:17:04,920
Speaker 5: was justified because of what she views as procedural failings

241
00:17:04,960 --> 00:17:09,040
Speaker 5: in this proceeding. In other words, it's sort of analogous

242
00:17:09,280 --> 00:17:14,760
Speaker 5: to contempt proceeding as a means of testing an injunctive

243
00:17:15,000 --> 00:17:21,640
Speaker 5: order that, in order to challenge the validity of the proceedings,

244
00:17:21,840 --> 00:17:24,800
Speaker 5: Judge Newman refused to comply with the order.

245
00:17:25,640 --> 00:17:29,000
Speaker 1: The details in this one hundred and eleven page report

246
00:17:29,040 --> 00:17:33,960
Speaker 1: and two hundred plus pages of exhibits were some say troubling,

247
00:17:34,359 --> 00:17:37,639
Speaker 1: others say distressing to read. Can you tell us a

248
00:17:37,680 --> 00:17:40,639
Speaker 1: little bit about what's disclosed.

249
00:17:41,320 --> 00:17:45,280
Speaker 5: Yes, well, there's a lot of stuff there. Most of

250
00:17:45,320 --> 00:17:51,200
Speaker 5: it is about interactions with court employees. But there's one

251
00:17:51,280 --> 00:17:54,479
Speaker 5: email chain, as you say, it's not two hundred pages

252
00:17:54,520 --> 00:17:58,240
Speaker 5: of appendices. There's one email chain towards the end of

253
00:17:58,280 --> 00:18:03,480
Speaker 5: those appendencies that I found very significant because it's all

254
00:18:03,600 --> 00:18:06,399
Speaker 5: they are except for the every action of names and

255
00:18:06,440 --> 00:18:10,320
Speaker 5: other details. But it's over a course of two days

256
00:18:10,440 --> 00:18:14,440
Speaker 5: in July, as I recall and Judge Newman repeatedly requests

257
00:18:14,960 --> 00:18:19,200
Speaker 5: in these emails, she repeatedly requests the return of what

258
00:18:19,240 --> 00:18:24,960
Speaker 5: she calls her chambers computer with my stored information. And

259
00:18:25,000 --> 00:18:27,879
Speaker 5: you have Chief Judge Moore and the director of it

260
00:18:28,840 --> 00:18:32,360
Speaker 5: and the Clerk of Court. They all repeatedly tell her

261
00:18:32,400 --> 00:18:36,639
Speaker 5: that there is no chamber's computer with her stored information

262
00:18:36,880 --> 00:18:40,840
Speaker 5: because everything, all the information is on the network drive.

263
00:18:41,119 --> 00:18:45,640
Speaker 5: And you have Judge Newman just seems unable to comprehend

264
00:18:45,840 --> 00:18:49,080
Speaker 5: what they're telling her, because she makes the same requests

265
00:18:49,280 --> 00:18:52,280
Speaker 5: again and again. And I have to say, I don't

266
00:18:52,280 --> 00:18:56,439
Speaker 5: think anyone can read that chain and not have some

267
00:18:56,760 --> 00:19:01,760
Speaker 5: doubts about Judge Newman's mental capacity. It is sad and troubling,

268
00:19:01,960 --> 00:19:07,280
Speaker 5: but it provides some powerful support for the committee's conclusions

269
00:19:07,880 --> 00:19:09,400
Speaker 5: about Judge Newman's situation.

270
00:19:10,200 --> 00:19:13,679
Speaker 1: One thing that sort of has always puzzled me is

271
00:19:13,720 --> 00:19:18,199
Speaker 1: that she's even refused to acknowledge that she had a

272
00:19:18,240 --> 00:19:22,080
Speaker 1: heart attack, and that seems like something that could easily

273
00:19:22,080 --> 00:19:25,920
Speaker 1: be acknowledged and could easily be either proven or disproven.

274
00:19:26,440 --> 00:19:31,000
Speaker 5: Well, I suppose one can read that as the word

275
00:19:31,040 --> 00:19:34,960
Speaker 5: that comes to mind is denial, and I think that

276
00:19:35,240 --> 00:19:39,320
Speaker 5: is part of what the committee is saying, that Judge

277
00:19:39,359 --> 00:19:43,920
Speaker 5: Newman does not acknowledge in any way that she has

278
00:19:44,080 --> 00:19:46,920
Speaker 5: any kind of problem if you look at what's there,

279
00:19:47,000 --> 00:19:51,080
Speaker 5: of course, but you also look at what is not there.

280
00:19:51,200 --> 00:19:56,520
Speaker 5: And one spiking thing about the way the committee went

281
00:19:56,560 --> 00:20:00,280
Speaker 5: about its proceeding is that it decides, I did it

282
00:20:00,320 --> 00:20:05,280
Speaker 5: affirmatively not to conduct any interviews with the other judges.

283
00:20:05,440 --> 00:20:08,560
Speaker 5: In other words, all of this is based very explicitly

284
00:20:09,080 --> 00:20:14,840
Speaker 5: on reports from court staff, and that just seems very

285
00:20:15,280 --> 00:20:18,120
Speaker 5: odd to me. There may be some reasons for it,

286
00:20:18,720 --> 00:20:22,520
Speaker 5: but you would think that it would be at least

287
00:20:22,520 --> 00:20:27,160
Speaker 5: as important to hear from other judges who have sat

288
00:20:27,240 --> 00:20:30,960
Speaker 5: in conference with her deciding cases. So that's after roll

289
00:20:31,040 --> 00:20:35,120
Speaker 5: of the function we're talking about. Deciding cases, and the

290
00:20:35,160 --> 00:20:42,480
Speaker 5: best information about Newman's capacity to decide cases would be

291
00:20:42,600 --> 00:20:45,240
Speaker 5: the judges who, over the last two or three years

292
00:20:45,680 --> 00:20:50,840
Speaker 5: have sat in private conferences after the arguments and thrashed

293
00:20:50,880 --> 00:20:54,119
Speaker 5: out the issue. Did she understand the issues in these

294
00:20:54,160 --> 00:20:57,520
Speaker 5: conversations except the occasional I bank, there are three judges

295
00:20:57,600 --> 00:21:00,439
Speaker 5: sitting in the room together. Did she understand than what

296
00:21:00,600 --> 00:21:04,840
Speaker 5: was being said? Were her comments coagent? Were they responsive

297
00:21:04,920 --> 00:21:07,800
Speaker 5: to the issues in the case? To my mind, that

298
00:21:07,840 --> 00:21:12,880
Speaker 5: would be for the most important evidence about Judge Newman's

299
00:21:12,880 --> 00:21:18,040
Speaker 5: mental capacity, and the committee deliberately and self consciously decided

300
00:21:18,359 --> 00:21:20,480
Speaker 5: not to pursue that evidence.

301
00:21:20,880 --> 00:21:23,880
Speaker 1: It seems as another thing that can be very easily

302
00:21:23,920 --> 00:21:29,840
Speaker 1: demonstrated that even though her workload was significantly reduced, she

303
00:21:29,960 --> 00:21:33,080
Speaker 1: took four times as long to write half the opinions

304
00:21:33,240 --> 00:21:36,320
Speaker 1: while sitting on half the number of cases as her colleagues.

305
00:21:36,960 --> 00:21:39,480
Speaker 1: So that seems pretty easily demonstrable.

306
00:21:40,200 --> 00:21:44,239
Speaker 5: Yes, the low productivity and the delays, we didn't have

307
00:21:44,320 --> 00:21:46,800
Speaker 5: to wait for this report for that. In fact, I

308
00:21:46,800 --> 00:21:52,399
Speaker 5: think George Moore's initial order identifying it had several examples

309
00:21:52,440 --> 00:21:57,840
Speaker 5: of very very long delays, including some very routine cases,

310
00:21:58,240 --> 00:22:03,080
Speaker 5: and that actually conceivably could be misconduct. Delay in a

311
00:22:03,160 --> 00:22:07,119
Speaker 5: single case is not recognizable under the Act, but a

312
00:22:07,200 --> 00:22:11,760
Speaker 5: repeated pattern of delay could be misconduct, but that would

313
00:22:11,800 --> 00:22:16,320
Speaker 5: not necessarily reflect a disability. There are just some judges

314
00:22:16,359 --> 00:22:21,600
Speaker 5: who are or become low, but that is certainly something

315
00:22:21,760 --> 00:22:26,960
Speaker 5: that could fall within the Act given a pattern that

316
00:22:27,119 --> 00:22:31,080
Speaker 5: is described in both this and the documents.

317
00:22:31,240 --> 00:22:34,879
Speaker 1: Well, one lawyer pointed out that in defense of Judge

318
00:22:34,920 --> 00:22:39,080
Speaker 1: Newman's capabilities, that she issued a dissent in a case

319
00:22:39,520 --> 00:22:43,720
Speaker 1: recently that was well written and shows she does have

320
00:22:44,200 --> 00:22:45,280
Speaker 1: something to contribute.

321
00:22:45,720 --> 00:22:49,560
Speaker 5: Yes, and you know that's evidence that should be considered.

322
00:22:50,119 --> 00:22:55,919
Speaker 5: I suppose what response would be is that, given the

323
00:22:55,960 --> 00:23:01,080
Speaker 5: way a judge works today with considerable assistance from law marks,

324
00:23:01,800 --> 00:23:05,880
Speaker 5: the publication of an opinion, whether it's a court opinion

325
00:23:06,160 --> 00:23:10,520
Speaker 5: or a descent, does not necessarily tell us what we'd

326
00:23:10,520 --> 00:23:14,760
Speaker 5: want to know about the judge. That's why I think

327
00:23:14,880 --> 00:23:20,639
Speaker 5: it is so important and desirable to have the evidence

328
00:23:20,960 --> 00:23:26,119
Speaker 5: of the judges who sat on the panels with Judge Newman,

329
00:23:26,240 --> 00:23:30,199
Speaker 5: because they could tell us whether she knew what she

330
00:23:30,359 --> 00:23:35,680
Speaker 5: was doing and was making arguments of the quality that

331
00:23:35,800 --> 00:23:39,200
Speaker 5: the lawyer you quote found in the descent that would

332
00:23:39,240 --> 00:23:42,520
Speaker 5: tell us whether Judge Newman herself is able to make

333
00:23:42,920 --> 00:23:45,600
Speaker 5: cogent and coherent legal arguments.

334
00:23:46,040 --> 00:23:50,480
Speaker 1: The report included Judge Newman's conduct thwarting the Committee's investigation

335
00:23:50,640 --> 00:23:54,119
Speaker 1: cannot go unpunished and cannot be met with a minor

336
00:23:54,240 --> 00:23:58,560
Speaker 1: sanction that a life tenured judge might ignore. So what

337
00:23:58,680 --> 00:23:59,680
Speaker 1: are they suggesting?

338
00:24:01,280 --> 00:24:04,560
Speaker 5: Well, that goes back to the basic point, which is

339
00:24:04,720 --> 00:24:09,399
Speaker 5: which you mentioned earlier, which is that the Committee and

340
00:24:09,520 --> 00:24:11,600
Speaker 5: Chief Judge Moore, who is of course a member of

341
00:24:11,600 --> 00:24:19,119
Speaker 5: the Committee, have turned a disability investigation into a misconduct proceeding.

342
00:24:19,600 --> 00:24:23,720
Speaker 5: And it is troubling there that very language you quote

343
00:24:23,800 --> 00:24:29,080
Speaker 5: it severe sanctions. The nineteen eighty Acts was designed as

344
00:24:29,119 --> 00:24:35,119
Speaker 5: a forward looking statute and not primarily punitive. And in fact,

345
00:24:35,160 --> 00:24:40,600
Speaker 5: there was a proceeding some years ago involving a judge

346
00:24:40,720 --> 00:24:46,199
Speaker 5: who was abusive toward lawyers and others in his courtroom,

347
00:24:46,359 --> 00:24:50,600
Speaker 5: and the fifth thir Judicial Council ordered a one year

348
00:24:50,720 --> 00:24:55,639
Speaker 5: suspension just as here, and when the Judicial Conference Committee

349
00:24:55,680 --> 00:24:59,840
Speaker 5: reviewed that order, it upheld it, but said only in

350
00:25:00,080 --> 00:25:05,080
Speaker 5: so far as it is remedial rather than punitive, meaning

351
00:25:05,200 --> 00:25:11,200
Speaker 5: that the judge would undergo counseling or treatment or simply

352
00:25:11,280 --> 00:25:15,639
Speaker 5: self reflection and come out of it able to be

353
00:25:15,840 --> 00:25:20,240
Speaker 5: a productive judge again. But this sanction is not being

354
00:25:20,359 --> 00:25:24,720
Speaker 5: imposed in that way. Nobody thinks that a year or

355
00:25:24,960 --> 00:25:29,640
Speaker 5: cases will help cure the problems that the Committee perceives.

356
00:25:30,000 --> 00:25:33,480
Speaker 5: And indeed, as the language you just quoted makes clear,

357
00:25:34,240 --> 00:25:38,240
Speaker 5: the Committee does seem to view this as punitive rather

358
00:25:38,320 --> 00:25:42,440
Speaker 5: than remedial. So that is troubling under the statute.

359
00:25:42,680 --> 00:25:44,879
Speaker 1: Thanks so much for being on the show, Arthur. That's

360
00:25:44,960 --> 00:25:48,399
Speaker 1: Professor Arthur Hellman of the University of Pittsburgh School of Law.

361
00:25:48,640 --> 00:25:50,960
Speaker 1: And that's it for this edition of The Bloomberg Law Show.

362
00:25:51,320 --> 00:25:53,679
Speaker 1: Remember you can always get the latest legal news on

363
00:25:53,720 --> 00:25:58,000
Speaker 1: our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify,

364
00:25:58,160 --> 00:26:02,280
Speaker 1: and at www dot com, Bloomberg dot com, slash podcast,

365
00:26:02,480 --> 00:26:05,400
Speaker 1: Slash Law, and remember to tune into The Bloomberg Law

366
00:26:05,480 --> 00:26:09,360
Speaker 1: Show every weeknight at ten pm Wall Street Time. I'm

367
00:26:09,440 --> 00:26:11,879
Speaker 1: June Grosso and you're listening to Bloomberg