Risk Update

Judicial Conflicts— Judge’s Offspring’s Conflicts Concern, Ethics Rules on Judges-When-Form-Prosecutors, Alaska Judge’s Ties & Continued Unfolding Conflicts Allegations

Posted Dan Bressler

“Opposing Counsel Want Judge’s Son Off the Case” —

  • “An oil and gas exploration company wants the Texas Supreme Court to assist in the disqualification of Justice Debra Lehrmann’s son from a case pending in a state district court.”
  • “Jonathan Lehrmann, currently an appellate attorney and associate at Houston-based Buck Keenan, became the subject of a disqualification motion after he was hired by opposing counsel in a dispute with RSM Production Corp., which is based in Denver, Colorado.”
  • “As explained in the petition, Jonathan Lehrmann once worked as an attorney with Wright Close & Barger, a firm that at the relevant time represented RSM in a breach-of-fiduciary duty and fraud-by-non-disclosure lawsuit filed against Jim Ford and companies formed by him, such as Rodeo Resources, collectively referred to as the Rodeo defendants.”
  • “‘Days before Rodeo filed its notice of appeal, Buck Keenan hired Lehrmann,’ the RSM petition states, adding Buck Keenan attorney E.F. Mano DeAyala asked Lehrmann if he had previously represented RSM and Lehrmann responded that he ‘did not remember.'”
  • “DeAyala allegedly tasked Lehrmann with drafting Rodeo’s opening brief for the appeal. RSM’s counsel, noticing the conflict, asked Buck Keenan to voluntarily withdraw but DeAyala refused to respond, the RSM petition claims.”
  • “The issue before the Supreme Court is a complaint against the First District, alleging Justice Gordon Goodman, ‘acting individually,’ denied RSM’s notice of motion to disqualify Rodeo’s counsel, and Goodman’s granting of Rodeo’s emergency motion for a temporary stay of all further trial court proceedings.”
  • “RSM asked the Supreme Court if the First District clearly abused its discretion by staying the trial court’s consideration of RSM’s motion on the basis the issue may be arbitrable, ‘when courts have the sole power and duty to regulate attorney conduct.'”

“Ethics panel clarifies recusal standards for judges with previous prosecutorial roles” —

  • “A judge must recuse from all cases involving defendants whom the judge previously prosecuted, according to the [Florida] Judicial Ethics Advisory Committee.”
  • “‘The test for the appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired,” the ethics panel said in Opinion Number 2024-12, citing commentary to Canon 2A. “This Committee finds that a reasonable mind would perceive that a judge who previously prosecuted the same defendant would not be impartial.'”

“Alaska Prosecutor Accused of Exploiting Judge Ties for Recusal” —

  • “A federal public defender has accused the US attorney’s office in Alaska of trying to force a judge’s recusal in a controversial murder case last year by adding a prosecutor to the trial team who had sent nude photos to the judge.”
  • “In early 2023, Karen Vandergaw, a senior prosecutor, suddenly joined a case overseen by Joshua Kindred, then one of two active judges on the Alaska federal bench. At the time, Kindred’s cases involving Vandergaw had for months been reassigned away from him, though the federal defenders office didn’t know why.”
  • “Gary Colbath, the Alaska federal defender’s office No. 2, said he confronted the lead prosecutor on the case about his suspicions of improper maneuvering and warned he planned to accuse the office of misconduct in a motion to dismiss. Kindred had a reputation for being more lenient toward criminal defendants.”
  • “‘There was no reason that she noticed an appearance, in our eyes, other than as a strategic attempt to cause Kindred’s recusal,’ Colbath said in an interview.”
  • “The following business day after Colbath said he raised concerns, Vandergaw was withdrawn from the prosecution team without explanation, court records show.”
  • “The case is one of dozens now under scrutiny since Kindred resigned last month amid findings that he sexually harassed a law clerk and created a hostile environment for other employees.”
  • “Now, both the US attorney’s and federal defenders offices are conducting their own reviews into Kindred’s past cases for potential conflicts of interest. The Justice Department is deploying a veteran lawyer who has previously helped other troubled offices to support the case review.”
  • “Legal ethics experts outside of Alaska said it would be inappropriate for a US attorney’s office to add an attorney to a case to disqualify the judge.”
  • “It’s possible that Vandergaw’s addition to the case may have been negligence or a failure by the office to conduct proper ethical reviews, said Jeremy Fogel, executive director of the Berkeley Judicial Institute and a former California federal judge.”
  • “Private attorneys are also eyeing current and past cases for potential relief due to the conflicts. Defense lawyers and academics outside of Alaska have said there may be grounds to reopen any cases Kindred heard involving the US attorney’s office.”

Previous and additional detail on this situation: “Prosecutors Flag More Possible Case Conflicts From Alaska Judge.“