PORTLAND, Maine — The Maine Supreme Judicial Court on Wednesday
grappled with ethical questions concerning the state’s elected probate judges, who sit on the bench part-time while maintaining private law practices.
The case of York County Probate Judge Robert M.A. Nadeau sparked musings from the justices about what appear to be unavoidable ethical conflicts built into the probate court system.
“Aren’t all these problems inherent in having elected probate judges and allowing them to practice?” Justice Joseph Jabar asked. “Isn’t this just the nature of the system in Maine?”
Attorneys on both sides answered, “Yes.”
The hearing Wednesday was the culmination of a process that began with an ethics complaint against Nadeau filed with the Committee on Judicial Responsibility and Disability, represented by Portland attorney Cabanne Howard. It accused Nadeau, who has a private practice in Biddeford, of violating the judicial code of conduct by his use of electronic media and his criticism of an appointed judge in a letter he wrote as a lawyer that led to an investigation.
The committee investigates complaints against judges with a member of the committee acting as a prosecutor, in a manner similar to the way the Maine Board of Overseers of the Bar investigates and pursues ethical complaints about lawyers.
While hearings concerning attorneys’ possible ethical breaches are held before three-judge panels, a single judge, appointed by the Maine Supreme Judicial Court, presides over a hearing concerning an ethical complaint against a judge and makes recommendations as to what, if any, discipline should be imposed.
If the judge who is the subject of the hearing objects to the findings, as Nadeau did, the state supreme court decides on the sanctions.
The complaint against Nadeau was lodged by six other lawyers in 2012 and 2013. The first of four counts the justices considered Wednesday accused Nadeau of creating a website for his job as a probate judge that included a link to the website for his private practice. The second concerned his creation of a Facebook page that was labeled “the official page of the York County Judge of Probate Robert Nadeau.”
Former Maine Supreme Judicial Court Justice Robert Clifford, who continues to work part time, found both were violations of the Judicial Code of Conduct but not egregious, since both sites were deleted after the complaints were filed. The active-retired judge found that Nadeau had violated the conduct code in a letter mailed to a law firm when Nadeau represented himself in a civil matter. In it, Nadeau said that the District Court judge who would be hearing the case was “very female-biased and unknowing,” according to court documents.
Wade said that Nadeau’s statements in the letter were protected under the free speech clause of the First Amendment.
“The problem with that is that it is speech that is critical of another judge,” Chief Justice Leigh I. Saufley said. “How do we draw that line between a judge speaking ill of another judge in the context of litigation?”
“You have to be specific to give people guidance they can understand and you have to follow the Constitution,” Wade said.
The judicial responsibility committee has recommended Nadeau be suspended for four weeks without pay, pay $4,000 to the county for his replacement, and pay a $1,000 fine, which is his weekly salary as a probate judge, according to his attorney, Stephen B. Wade of Auburn. Clifford left any reprimand up to the supreme court.
Howard told justices Wednesday they should take into consideration the fact that they sanctioned Nadeau in 2007 for lying about his opponents in his campaign for re-election in 2004. The state supreme court suspended him as a judge for a week and ordered him to pay York County $1,000 to pay a substitute judge. Nadeau also was ordered to attend a judicial ethics course.
Since 1997, the only judges the justices have reprimanded have been probate judges, according to information posted on the the judicial conduct committee’s website. In addition to Nadeau in 2007 and Washington County Probate Judge Lyman L. Holmes was reprimanded in 2011 over his taking too long to deal with certain cases.
There is no timetable under which the justices must issue a decision.