WEBVTT - Lawyers Are Getting on More Corporate Boards

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 1>Lawyers have long served on the boards of privately held

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<v Speaker 1>companies and nonprofits, and public companies are increasingly looking for

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<v Speaker 1>lawyers to become corporate directors, bringing their legal expertise to

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<v Speaker 1>the boardroom and prestige to the attorneys who can navigate

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<v Speaker 1>potential conflicts. My guest is, when Den Eolis of Eolis

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<v Speaker 1>International Group, a legal recruiting company, are you seeing more

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<v Speaker 1>lawyers being considered for board seats or getting on boards.

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<v Speaker 2>Absolutely, there's been a sea change in the interest in

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<v Speaker 2>including lawyers in the mix of skills and abilities and

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<v Speaker 2>background with very major corporations and in the companies that

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<v Speaker 2>we deal with. They are not the focal point in

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<v Speaker 2>many cases, but they are part of the mix. And

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<v Speaker 2>that was not the case during the past twenty years

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<v Speaker 2>to nearly the same level before that. For lawyers used

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<v Speaker 2>to be on boards frequently because the CEOs who worked

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<v Speaker 2>with them knew them, were comfortable with them, and wanted

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<v Speaker 2>to bring them in. But there have been a whole

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<v Speaker 2>host of changes in the way in which companies work

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<v Speaker 2>with lawyers and law firms, and there's been a big

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<v Speaker 2>change that's been created by chief legal officers having significant

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<v Speaker 2>responsibility internally and the outside lawyers not necessarily having as

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<v Speaker 2>close a relationship with their clients the CEO as they

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<v Speaker 2>used to because they have a much greater responsibility to

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<v Speaker 2>the chief legal officer.

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<v Speaker 1>Where there is from are the lawyers on boards, generally

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<v Speaker 1>lawyers with business backgrounds or general counsel at businesses.

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<v Speaker 2>There are really a great variety of backgrounds for the

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<v Speaker 2>lawyers who end up on boards these days, because there's

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<v Speaker 2>an openness now to a variety of pieces in terms

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<v Speaker 2>of criteria. At the end of the day, what distinguishes

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<v Speaker 2>who does and who doesn't get on the board are

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<v Speaker 2>those who have the necessary credentials and fill the general

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<v Speaker 2>criteria and most of all look sound and feel as

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<v Speaker 2>if they will play well in the sandbox, and companies

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<v Speaker 2>call that chemistry. So the possibilities for lawyers are more

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<v Speaker 2>about their intellectual assets or they're not as concerned about

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<v Speaker 2>the specifics of the transactions they've worked on. They're more

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<v Speaker 2>concerned about how they approach the business. They're more concerned

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<v Speaker 2>about their ability to make the pivot from being a

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<v Speaker 2>counselor with great business judgment to become a a debater, deliberator,

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<v Speaker 2>and voter who understands and participates in policy making decisions.

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<v Speaker 2>So it doesn't matter what their particular discipline is for

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<v Speaker 2>some boards, for others the industry where the discipline is critical,

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<v Speaker 2>so it's a broad mix.

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<v Speaker 1>Is there a general figure for how much time it

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<v Speaker 1>takes to be on a board?

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<v Speaker 3>Yeah.

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<v Speaker 2>When we are talking with most of our client companies

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<v Speaker 2>because we are doing a search, generally speaking, I find

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<v Speaker 2>they have quarterly meetings. Many of them that have quarterly

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<v Speaker 2>meetings hold those meetings in different places, and so it

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<v Speaker 2>means you've got to travel to get there to the meeting.

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<v Speaker 2>On every board, you have obligations to attend one or

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<v Speaker 2>more committee meetings. Most people are on more than one

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<v Speaker 2>committee when they're a director, and you have to tend

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<v Speaker 2>those committee meetings. But then there are additional responsibilities and

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<v Speaker 2>obligations within those committees that requires projects to be addressed.

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<v Speaker 2>I think it's fair to say that a lawyer who

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<v Speaker 2>is active on boards but does not have a senior

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<v Speaker 2>leadership role on that board in terms of chairmanships of committees,

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<v Speaker 2>probably has to allocate somewhere around thirty days a year.

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<v Speaker 2>Now that might seem like it's not so much time.

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<v Speaker 2>Why couldn't you take three or six?

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<v Speaker 3>Right?

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<v Speaker 2>But the truth of the matter is that there are

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<v Speaker 2>conflicts in terms of when those board meetings will take place.

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<v Speaker 2>There are conflicts in terms of being on one board

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<v Speaker 2>and what other boards can you be on. And there's

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<v Speaker 2>a big logistics issue in terms of the kind of

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<v Speaker 2>work you're doing, the environment in which you're doing it,

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<v Speaker 2>the industry in which you are at active, and how

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<v Speaker 2>that plays against the interests of other boards being able

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<v Speaker 2>to consider you and you being able to consider them

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<v Speaker 2>as you're a lawyer. The thirty days that I suggest

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<v Speaker 2>is truly the minimum. As a practical matter, boards invariably

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<v Speaker 2>get the biggest challenges and the biggest opportunities, and that

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<v Speaker 2>means being available at the time of those challenges and

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<v Speaker 2>opportunities develop, and they don't develop on any individual's timetable.

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<v Speaker 1>Is it easier to get on a board if you've

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<v Speaker 1>been on boards before.

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<v Speaker 2>There is no question in my mind that there is

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<v Speaker 2>absolutely no situation in which you will get on a

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<v Speaker 2>board more easily than if you've already had a board seat.

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<v Speaker 2>You know, they say about actors that you have to

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<v Speaker 2>have an equity card to get a park, but you

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<v Speaker 2>have to have a park to get an equity card.

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<v Speaker 2>It's really like the same problem in order to get

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<v Speaker 2>a board seat. Nothing is better than having had one

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<v Speaker 2>at the same time, Until you've had one, it's hard

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<v Speaker 2>to get the board seat. So the chicken and egg

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<v Speaker 2>problem which exists in the rest of the world is

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<v Speaker 2>applicable when it comes to lawyers on boards as well.

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<v Speaker 1>And how important are connections and getting a board seat.

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<v Speaker 2>Now those connections ten, fifteen, twenty years ago and more

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<v Speaker 2>were frequently a function of personal relationships. Now boards understand

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<v Speaker 2>that they can get a lot of information about lawyers,

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<v Speaker 2>and they will use companies like ours, for example, for

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<v Speaker 2>the purposes of betting, helping them to put lawyers into

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<v Speaker 2>the pipeline and for giving them ideas of where successful

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<v Speaker 2>lawyers are and what seems to be making them successful

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<v Speaker 2>within the boardroom as a whole, But there is no

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<v Speaker 2>substitute for an end, whether it's a lawyer or anyone else.

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<v Speaker 2>Having connections to a non gov chairman, to a CEO,

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<v Speaker 2>to an executive chairman, that is still going to be

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<v Speaker 2>very important in the process, which is why with our clients,

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<v Speaker 2>individual lawyers we work with them in preparing for board

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<v Speaker 2>service on what's called network mapping, which simply means understanding

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<v Speaker 2>their connections and the value of them, and learning how

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<v Speaker 2>to exponentially expand them so that in addition to the

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<v Speaker 2>opportunities that we may have for them, that they will

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<v Speaker 2>also be much more empowered to develop opportunities because of

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<v Speaker 2>the people who could be helpful to them.

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<v Speaker 1>Have you seen that including lawyers adds to the diversity

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<v Speaker 1>on boards?

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<v Speaker 2>We know that boards are talking about diversity, and that

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<v Speaker 2>includes underrepresented minorities and women, and in every area there

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<v Speaker 2>are a great number of boards that are doing an

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<v Speaker 2>extraordinarily good job on focusing on this issue, and it's

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<v Speaker 2>a big issue. I always tell people, if you expand

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<v Speaker 2>your notion of who want to fit into your potential

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<v Speaker 2>talent pool, you can double your potential talent pool and

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<v Speaker 2>get people you might not otherwise ever consider, who have

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<v Speaker 2>incredible breadth and depth in areas you may not typically

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<v Speaker 2>even think about. The diversity issue right now is one

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<v Speaker 2>on which I think it's fair to say boards are

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<v Speaker 2>very very concerned in general, and they are demonstrating that

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<v Speaker 2>concern by increasing, particularly the percentage of women on their boards.

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<v Speaker 2>The number one requirement for a board member for most

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<v Speaker 2>of our clients is wisdom and.

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<v Speaker 3>That comes in many different flavors, many different cultural backgrounds, industries, expertise, credentials,

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<v Speaker 3>and it's a wide open slate.

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<v Speaker 2>We know that the issue of protecting shareholder profit is

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<v Speaker 2>a key piece in the puzzle for every board member,

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<v Speaker 2>but we also know that environmental issues, social responsibility issues,

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<v Speaker 2>governance are critical. We know that dealing with compensation, both

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<v Speaker 2>within the board and internally in the company are issues

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<v Speaker 2>that have become far more complex. So there is no

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<v Speaker 2>shortage of board directorship needs and certainly an increasing and

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<v Speaker 2>expanding opportunity for lawyers because of the nature of risk

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<v Speaker 2>assessment and governance that moves at the speed of light

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<v Speaker 2>in terms of issues of.

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<v Speaker 1>Import Thanks for being on the show, Wendin. That's Wehn

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<v Speaker 1>Deini Jolis of the Eolis International Group. Over the last

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<v Speaker 1>four months, the investigation into whether the nation's oldest federal

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<v Speaker 1>judge is able to perform her duties has become public

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<v Speaker 1>in a way that's unusual for the federal judiciary, and

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<v Speaker 1>now a three judge panel of the Federal Circuit, the

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<v Speaker 1>same appellate court that judge Pauline Newman, has sat on

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<v Speaker 1>for nearly forty years, has voted unanimously to sanction the

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<v Speaker 1>ninety six year old judge over her refusal to cooperate

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<v Speaker 1>with an investigation into her mental fitness. Newman has fought

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<v Speaker 1>back against the investigation by suing her colleagues, accusing them

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<v Speaker 1>of violating the Constitution. She's known for her descents and

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<v Speaker 1>believes that her colleagues are trying to get rid of

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<v Speaker 1>her to avoid that scrutiny.

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<v Speaker 4>I think the nation needs my voice. I think that

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<v Speaker 4>if the judges on this court are willing and more

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<v Speaker 4>than willing to push me out in order to get

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<v Speaker 4>me out of the way so that no one says

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<v Speaker 4>that they've made a mistake, that I need to be

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<v Speaker 4>here to countermand.

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<v Speaker 1>That joining me is ethics. Law expert Arthur Hellman, a

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<v Speaker 1>professor at the University of Pittsburgh Law School. Arthur the

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<v Speaker 1>panel released its one hundred eleven page report along with

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<v Speaker 1>more than two hundred pages of exhibits. How unusual is

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<v Speaker 1>it for the judicial panel to release its report for

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<v Speaker 1>the public to read.

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<v Speaker 5>That's never happened before. As far as I'm aware that

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<v Speaker 5>the Judicial Counsel because I suppose the Judicial Council must

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<v Speaker 5>have been the entity that authorized it would publicly issue

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<v Speaker 5>a special Committee report in advance of the Judicial Council decision.

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<v Speaker 5>That has never happened. In fact, in most instances, the

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<v Speaker 5>special Committee report itself is never published at all. The

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<v Speaker 5>Judicial Council summarizes the conclusions and perhaps quotes from it,

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<v Speaker 5>but ordinarily this would not be a public document. So

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<v Speaker 5>it's unprecedented that it would not be only made public,

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<v Speaker 5>but made public in advance of the Judicial Council decision.

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<v Speaker 5>Judicial Council is the body that has the authority to

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<v Speaker 5>impose sanctions.

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<v Speaker 1>Do you think it was released because of how public

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<v Speaker 1>this has become and how Judge Newman herself has responded

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<v Speaker 1>to this.

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<v Speaker 5>Well, it could be a product of the fact that

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<v Speaker 5>Judge Newman has repeatedly called for release of materials and

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<v Speaker 5>public availability of proceedings that ordinarily are confidential, not only

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<v Speaker 5>while they're happening, but even afterwards. So it could be

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<v Speaker 5>that I find myself wondering though, if committee did not

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<v Speaker 5>make a decision, that they would issue the evidence first,

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<v Speaker 5>and then in a week or two, the Judicial Council

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<v Speaker 5>would issue a decision, and I have no doubt that

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<v Speaker 5>the Council will act in accordance with the recommendations, in

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<v Speaker 5>other words, laying the groundwork for the decision. But it's

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<v Speaker 5>still something that I think was unnecessary and probably undesirable.

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<v Speaker 1>So let's just step back a moment for those who

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<v Speaker 1>don't know what's been happening. It started with other judges

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<v Speaker 1>and court staff raising concerns about Judge Newman's health. She

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<v Speaker 1>was said to have suffered a fainting spell where she

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<v Speaker 1>was unable to walk without assistance after oral arguments in

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<v Speaker 1>May of twenty twenty two. Just tell us what happened

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<v Speaker 1>after that so we can get an idea of the sequence.

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<v Speaker 5>Well, reports came to the Chief Judge, Chief Judge Kimberly Moore,

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<v Speaker 5>primarily interactions with court's staff, but it did include some

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<v Speaker 5>interactions with judges. Those reports were enough to persuade the

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<v Speaker 5>Chief Judge that there was a possible problem with Judge

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<v Speaker 5>Newman's mental capacity, and so she took steps to investigate

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<v Speaker 5>us was quite proper and indeed what she should have

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<v Speaker 5>done under the statute that Congress passed. Judge Moore engaged

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<v Speaker 5>in that preliminary investigation decided that there was enough to

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<v Speaker 5>move forward, and I think she asked Judge Newman to

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<v Speaker 5>voluntarily take senior status, but she told Judge Newman that

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<v Speaker 5>she would be identifying a complaint that initiates a formal proceeding,

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<v Speaker 5>and so that started the proceeding that led to this report.

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<v Speaker 1>Seems to have escalated this dispute is that Judge Newman

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<v Speaker 1>refused to cooperate with the committee in any way and

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<v Speaker 1>refused to submit to medical testing.

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<v Speaker 5>Yeah, that's exactly right, June. And that is one of

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<v Speaker 5>the things that makes this unique, I think, and also

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<v Speaker 5>very troubling because at each stage Judge Moore and the

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<v Speaker 5>Special Committee asked what they ordered Judge Newman to do

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<v Speaker 5>these various things, submit to testing and submit to interviews

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<v Speaker 5>and so forth, and each time Judge Newman said yes,

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<v Speaker 5>but only under certain conditions, the Chief Judge added to

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<v Speaker 5>the charges charges of misconduct based on failure to cooperate.

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<v Speaker 5>So it was indeed an escalate proceeding where we had

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<v Speaker 5>this back and forth and each time new charges were added,

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<v Speaker 5>until finally the Special Committee ended up limiting its initial

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<v Speaker 5>consideration only to the misconduct charges of failing to cooperate,

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<v Speaker 5>and nominally that is what this order is about. It's

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<v Speaker 5>not about the disability. Well, that's obviously what underlies it,

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<v Speaker 5>but the sanction is imposed for the misconduct of failing

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<v Speaker 5>to cooperate. And I think that's a serious problem here

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<v Speaker 5>because there's really a mismatch between the underlying concern, which

0:16:33.480 --> 0:16:38.200
<v Speaker 5>is disability, and the formal charge, which is misconduct by

0:16:38.240 --> 0:16:39.880
<v Speaker 5>reason of failure to cooperate.

0:16:40.280 --> 0:16:44.040
<v Speaker 1>It seems like that failure to cooperate, it's hard for

0:16:44.160 --> 0:16:48.840
<v Speaker 1>Judge Newman to disagree with that because she hasn't cooperated.

0:16:49.480 --> 0:16:54.000
<v Speaker 5>That is certainly true, she hasn't cooperated. But her argument,

0:16:54.080 --> 0:16:58.440
<v Speaker 5>which the committee rejects, is that her failure to cooperate

0:16:59.120 --> 0:17:04.920
<v Speaker 5>was justified because of what she views as procedural failings

0:17:04.960 --> 0:17:09.040
<v Speaker 5>in this proceeding. In other words, it's sort of analogous

0:17:09.280 --> 0:17:14.760
<v Speaker 5>to contempt proceeding as a means of testing an injunctive

0:17:15.000 --> 0:17:21.640
<v Speaker 5>order that, in order to challenge the validity of the proceedings,

0:17:21.840 --> 0:17:24.800
<v Speaker 5>Judge Newman refused to comply with the order.

0:17:25.640 --> 0:17:29.000
<v Speaker 1>The details in this one hundred and eleven page report

0:17:29.040 --> 0:17:33.960
<v Speaker 1>and two hundred plus pages of exhibits were some say troubling,

0:17:34.359 --> 0:17:37.639
<v Speaker 1>others say distressing to read. Can you tell us a

0:17:37.680 --> 0:17:40.639
<v Speaker 1>little bit about what's disclosed.

0:17:41.320 --> 0:17:45.280
<v Speaker 5>Yes, well, there's a lot of stuff there. Most of

0:17:45.320 --> 0:17:51.200
<v Speaker 5>it is about interactions with court employees. But there's one

0:17:51.280 --> 0:17:54.479
<v Speaker 5>email chain, as you say, it's not two hundred pages

0:17:54.520 --> 0:17:58.240
<v Speaker 5>of appendices. There's one email chain towards the end of

0:17:58.280 --> 0:18:03.480
<v Speaker 5>those appendencies that I found very significant because it's all

0:18:03.600 --> 0:18:06.399
<v Speaker 5>they are except for the every action of names and

0:18:06.440 --> 0:18:10.320
<v Speaker 5>other details. But it's over a course of two days

0:18:10.440 --> 0:18:14.440
<v Speaker 5>in July, as I recall and Judge Newman repeatedly requests

0:18:14.960 --> 0:18:19.200
<v Speaker 5>in these emails, she repeatedly requests the return of what

0:18:19.240 --> 0:18:24.960
<v Speaker 5>she calls her chambers computer with my stored information. And

0:18:25.000 --> 0:18:27.879
<v Speaker 5>you have Chief Judge Moore and the director of it

0:18:28.840 --> 0:18:32.360
<v Speaker 5>and the Clerk of Court. They all repeatedly tell her

0:18:32.400 --> 0:18:36.639
<v Speaker 5>that there is no chamber's computer with her stored information

0:18:36.880 --> 0:18:40.840
<v Speaker 5>because everything, all the information is on the network drive.

0:18:41.119 --> 0:18:45.640
<v Speaker 5>And you have Judge Newman just seems unable to comprehend

0:18:45.840 --> 0:18:49.080
<v Speaker 5>what they're telling her, because she makes the same requests

0:18:49.280 --> 0:18:52.280
<v Speaker 5>again and again. And I have to say, I don't

0:18:52.280 --> 0:18:56.439
<v Speaker 5>think anyone can read that chain and not have some

0:18:56.760 --> 0:19:01.760
<v Speaker 5>doubts about Judge Newman's mental capacity. It is sad and troubling,

0:19:01.960 --> 0:19:07.280
<v Speaker 5>but it provides some powerful support for the committee's conclusions

0:19:07.880 --> 0:19:09.400
<v Speaker 5>about Judge Newman's situation.

0:19:10.200 --> 0:19:13.679
<v Speaker 1>One thing that sort of has always puzzled me is

0:19:13.720 --> 0:19:18.199
<v Speaker 1>that she's even refused to acknowledge that she had a

0:19:18.240 --> 0:19:22.080
<v Speaker 1>heart attack, and that seems like something that could easily

0:19:22.080 --> 0:19:25.920
<v Speaker 1>be acknowledged and could easily be either proven or disproven.

0:19:26.440 --> 0:19:31.000
<v Speaker 5>Well, I suppose one can read that as the word

0:19:31.040 --> 0:19:34.960
<v Speaker 5>that comes to mind is denial, and I think that

0:19:35.240 --> 0:19:39.320
<v Speaker 5>is part of what the committee is saying, that Judge

0:19:39.359 --> 0:19:43.920
<v Speaker 5>Newman does not acknowledge in any way that she has

0:19:44.080 --> 0:19:46.920
<v Speaker 5>any kind of problem if you look at what's there,

0:19:47.000 --> 0:19:51.080
<v Speaker 5>of course, but you also look at what is not there.

0:19:51.200 --> 0:19:56.520
<v Speaker 5>And one spiking thing about the way the committee went

0:19:56.560 --> 0:20:00.280
<v Speaker 5>about its proceeding is that it decides, I did it

0:20:00.320 --> 0:20:05.280
<v Speaker 5>affirmatively not to conduct any interviews with the other judges.

0:20:05.440 --> 0:20:08.560
<v Speaker 5>In other words, all of this is based very explicitly

0:20:09.080 --> 0:20:14.840
<v Speaker 5>on reports from court staff, and that just seems very

0:20:15.280 --> 0:20:18.120
<v Speaker 5>odd to me. There may be some reasons for it,

0:20:18.720 --> 0:20:22.520
<v Speaker 5>but you would think that it would be at least

0:20:22.520 --> 0:20:27.160
<v Speaker 5>as important to hear from other judges who have sat

0:20:27.240 --> 0:20:30.960
<v Speaker 5>in conference with her deciding cases. So that's after roll

0:20:31.040 --> 0:20:35.120
<v Speaker 5>of the function we're talking about. Deciding cases, and the

0:20:35.160 --> 0:20:42.480
<v Speaker 5>best information about Newman's capacity to decide cases would be

0:20:42.600 --> 0:20:45.240
<v Speaker 5>the judges who, over the last two or three years

0:20:45.680 --> 0:20:50.840
<v Speaker 5>have sat in private conferences after the arguments and thrashed

0:20:50.880 --> 0:20:54.119
<v Speaker 5>out the issue. Did she understand the issues in these

0:20:54.160 --> 0:20:57.520
<v Speaker 5>conversations except the occasional I bank, there are three judges

0:20:57.600 --> 0:21:00.439
<v Speaker 5>sitting in the room together. Did she understand than what

0:21:00.600 --> 0:21:04.840
<v Speaker 5>was being said? Were her comments coagent? Were they responsive

0:21:04.920 --> 0:21:07.800
<v Speaker 5>to the issues in the case? To my mind, that

0:21:07.840 --> 0:21:12.880
<v Speaker 5>would be for the most important evidence about Judge Newman's

0:21:12.880 --> 0:21:18.040
<v Speaker 5>mental capacity, and the committee deliberately and self consciously decided

0:21:18.359 --> 0:21:20.480
<v Speaker 5>not to pursue that evidence.

0:21:20.880 --> 0:21:23.880
<v Speaker 1>It seems as another thing that can be very easily

0:21:23.920 --> 0:21:29.840
<v Speaker 1>demonstrated that even though her workload was significantly reduced, she

0:21:29.960 --> 0:21:33.080
<v Speaker 1>took four times as long to write half the opinions

0:21:33.240 --> 0:21:36.320
<v Speaker 1>while sitting on half the number of cases as her colleagues.

0:21:36.960 --> 0:21:39.480
<v Speaker 1>So that seems pretty easily demonstrable.

0:21:40.200 --> 0:21:44.239
<v Speaker 5>Yes, the low productivity and the delays, we didn't have

0:21:44.320 --> 0:21:46.800
<v Speaker 5>to wait for this report for that. In fact, I

0:21:46.800 --> 0:21:52.399
<v Speaker 5>think George Moore's initial order identifying it had several examples

0:21:52.440 --> 0:21:57.840
<v Speaker 5>of very very long delays, including some very routine cases,

0:21:58.240 --> 0:22:03.080
<v Speaker 5>and that actually conceivably could be misconduct. Delay in a

0:22:03.160 --> 0:22:07.119
<v Speaker 5>single case is not recognizable under the Act, but a

0:22:07.200 --> 0:22:11.760
<v Speaker 5>repeated pattern of delay could be misconduct, but that would

0:22:11.800 --> 0:22:16.320
<v Speaker 5>not necessarily reflect a disability. There are just some judges

0:22:16.359 --> 0:22:21.600
<v Speaker 5>who are or become low, but that is certainly something

0:22:21.760 --> 0:22:26.960
<v Speaker 5>that could fall within the Act given a pattern that

0:22:27.119 --> 0:22:31.080
<v Speaker 5>is described in both this and the documents.

0:22:31.240 --> 0:22:34.879
<v Speaker 1>Well, one lawyer pointed out that in defense of Judge

0:22:34.920 --> 0:22:39.080
<v Speaker 1>Newman's capabilities, that she issued a dissent in a case

0:22:39.520 --> 0:22:43.720
<v Speaker 1>recently that was well written and shows she does have

0:22:44.200 --> 0:22:45.280
<v Speaker 1>something to contribute.

0:22:45.720 --> 0:22:49.560
<v Speaker 5>Yes, and you know that's evidence that should be considered.

0:22:50.119 --> 0:22:55.919
<v Speaker 5>I suppose what response would be is that, given the

0:22:55.960 --> 0:23:01.080
<v Speaker 5>way a judge works today with considerable assistance from law marks,

0:23:01.800 --> 0:23:05.880
<v Speaker 5>the publication of an opinion, whether it's a court opinion

0:23:06.160 --> 0:23:10.520
<v Speaker 5>or a descent, does not necessarily tell us what we'd

0:23:10.520 --> 0:23:14.760
<v Speaker 5>want to know about the judge. That's why I think

0:23:14.880 --> 0:23:20.639
<v Speaker 5>it is so important and desirable to have the evidence

0:23:20.960 --> 0:23:26.119
<v Speaker 5>of the judges who sat on the panels with Judge Newman,

0:23:26.240 --> 0:23:30.199
<v Speaker 5>because they could tell us whether she knew what she

0:23:30.359 --> 0:23:35.680
<v Speaker 5>was doing and was making arguments of the quality that

0:23:35.800 --> 0:23:39.200
<v Speaker 5>the lawyer you quote found in the descent that would

0:23:39.240 --> 0:23:42.520
<v Speaker 5>tell us whether Judge Newman herself is able to make

0:23:42.920 --> 0:23:45.600
<v Speaker 5>cogent and coherent legal arguments.

0:23:46.040 --> 0:23:50.480
<v Speaker 1>The report included Judge Newman's conduct thwarting the Committee's investigation

0:23:50.640 --> 0:23:54.119
<v Speaker 1>cannot go unpunished and cannot be met with a minor

0:23:54.240 --> 0:23:58.560
<v Speaker 1>sanction that a life tenured judge might ignore. So what

0:23:58.680 --> 0:23:59.680
<v Speaker 1>are they suggesting?

0:24:01.280 --> 0:24:04.560
<v Speaker 5>Well, that goes back to the basic point, which is

0:24:04.720 --> 0:24:09.399
<v Speaker 5>which you mentioned earlier, which is that the Committee and

0:24:09.520 --> 0:24:11.600
<v Speaker 5>Chief Judge Moore, who is of course a member of

0:24:11.600 --> 0:24:19.119
<v Speaker 5>the Committee, have turned a disability investigation into a misconduct proceeding.

0:24:19.600 --> 0:24:23.720
<v Speaker 5>And it is troubling there that very language you quote

0:24:23.800 --> 0:24:29.080
<v Speaker 5>it severe sanctions. The nineteen eighty Acts was designed as

0:24:29.119 --> 0:24:35.119
<v Speaker 5>a forward looking statute and not primarily punitive. And in fact,

0:24:35.160 --> 0:24:40.600
<v Speaker 5>there was a proceeding some years ago involving a judge

0:24:40.720 --> 0:24:46.199
<v Speaker 5>who was abusive toward lawyers and others in his courtroom,

0:24:46.359 --> 0:24:50.600
<v Speaker 5>and the fifth thir Judicial Council ordered a one year

0:24:50.720 --> 0:24:55.639
<v Speaker 5>suspension just as here, and when the Judicial Conference Committee

0:24:55.680 --> 0:24:59.840
<v Speaker 5>reviewed that order, it upheld it, but said only in

0:25:00.080 --> 0:25:05.080
<v Speaker 5>so far as it is remedial rather than punitive, meaning

0:25:05.200 --> 0:25:11.200
<v Speaker 5>that the judge would undergo counseling or treatment or simply

0:25:11.280 --> 0:25:15.639
<v Speaker 5>self reflection and come out of it able to be

0:25:15.840 --> 0:25:20.240
<v Speaker 5>a productive judge again. But this sanction is not being

0:25:20.359 --> 0:25:24.720
<v Speaker 5>imposed in that way. Nobody thinks that a year or

0:25:24.960 --> 0:25:29.640
<v Speaker 5>cases will help cure the problems that the Committee perceives.

0:25:30.000 --> 0:25:33.480
<v Speaker 5>And indeed, as the language you just quoted makes clear,

0:25:34.240 --> 0:25:38.240
<v Speaker 5>the Committee does seem to view this as punitive rather

0:25:38.320 --> 0:25:42.440
<v Speaker 5>than remedial. So that is troubling under the statute.

0:25:42.680 --> 0:25:44.879
<v Speaker 1>Thanks so much for being on the show, Arthur. That's

0:25:44.960 --> 0:25:48.399
<v Speaker 1>Professor Arthur Hellman of the University of Pittsburgh School of Law.

0:25:48.640 --> 0:25:50.960
<v Speaker 1>And that's it for this edition of The Bloomberg Law Show.

0:25:51.320 --> 0:25:53.679
<v Speaker 1>Remember you can always get the latest legal news on

0:25:53.720 --> 0:25:58.000
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0:25:58.160 --> 0:26:02.280
<v Speaker 1>and at www dot com, Bloomberg dot com, slash podcast,

0:26:02.480 --> 0:26:05.400
<v Speaker 1>Slash Law, and remember to tune into The Bloomberg Law

0:26:05.480 --> 0:26:09.360
<v Speaker 1>Show every weeknight at ten pm Wall Street Time. I'm

0:26:09.440 --> 0:26:11.879
<v Speaker 1>June Grosso and you're listening to Bloomberg