Lawyer's Letter Raises Ire of Judicial Panel : Law: Attorney for Commission on Judicial Performance is placed on leave after taking complaints to lawmakers. But a defender says no lawyer-client privilege was breached.

TIMES LEGAL AFFAIRS WRITER

One of the most experienced attorneys at the state's beleaguered Commission on Judicial Performance has been placed on administrative leave a week after he sent a letter to state legislators describing disciplinary proceedings against him, The Times has learned.

John Plotz, the suspended attorney, said commission director Victoria B. Henley told him Thursday afternoon that she had placed him on administrative leave with pay, pending an investigation into whether his letter "violated the attorney-client privilege."

Plotz said Henley gave him no further explanation of what her statement meant, "and I do not know."

On Sunday, Plotz's attorney, W. Daniel Boone of San Francisco, declared that his client had not breached the attorney-client privilege, which prohibits attorneys from disclosing confidential conversations they have had with clients.

"This is a pretext to punish critics of the Commission on Judicial Performance," Boone said. "According to the commission, by its actions against John Plotz, a citizen cannot petition the Legislature on a matter of public concern if he works for the commission."

Earlier this year, Henley threatened to fire Plotz for discussing the commission with one of its leading critics, San Francisco public defender Peter Keane. Plotz has steadfastly maintained that he provided no confidential information to Keane, who wrote a pending Assembly bill that would dramatically reform the commission. The panel has been under fire recently for meting out weak, secret discipline against judges who commit misconduct.

In Plotz's June 10 letter, he asked state lawmakers to give commission employees, who are involved in the "difficult work" of investigating judges, protection from being fired at will.

"The staff of the commission often faces hostility from people who have risen to high office and are used to deference," Plotz wrote. "In order to work effectively, the staff of the commission must work without fear."

Henley declined comment. The Times was unable to reach commission chairman Eugene M. Premo, a state Court of Appeal justice in San Jose.

The commission's action against Plotz came only one day after the Assembly Judiciary Committee unanimously approved a bill that would dramatically alter commission operations. The legislation, introduced by Speaker Willie Brown Jr. (D-San Francisco), would open commission proceedings to the public once formal charges are filed against a judge. The bill would also end the judges' domination of the commission by adding more citizen members.

Assembly Judiciary Committee chairman Philip Isenberg (D-Sacramento) said he was bewildered by the commission's move against Plotz.

"It is not only stupid but highly ironic that the commission would discipline one of its senior staff--not for revealing secrets, even under the present law, but for revealing public information," Isenberg said. "This is California, not mainland China. The commission ought to chill out and calm down."

Isenberg stressed that Plotz had provided no information about confidential commission proceedings involving judges. "This is another instance of government agencies imposing rules of secrecy to prevent embarrassment of themselves," the assemblyman said.

Keane also expressed dismay and said he planned to raise the issue when he testifies in Sacramento Tuesday on another pending measure to reform the commission.

"I think it was highly irresponsible" of the commission to take action against Plotz, Keane said. He said he hopes commission officials will be at Tuesday's hearing "so they can explain this action."

Plotz joined the panel in 1988 as a staff attorney responsible for investigating alleged judicial misconduct. Attached to his June letter to lawmakers was a copy of his last performance evaluation, which praised his work as being "of the highest quality in every respect."

Also attached were several letters and legal memos relating to Henley's attempts to question him about his discussions with Keane. Plotz and his attorney say he has a 1st Amendment right to not be forced to discuss conversations he held with Keane on his own time. Henley disagrees. She has accused Plotz of disloyalty and "betraying" the commission.

A law professor who has closely followed the state's judicial discipline controversy also criticized the commission's move against Plotz.

"If the commission tries to muzzle its staff and keep the public in the dark about its operations, the public and the Legislature have a right to know that," said Stephen R. Barnett, a professor at UC Berkeley's Boalt Hall School of Law. "It now appears that this commission is not just ineffective at policing judges, but is possessed of a witch hunt mentality and a mania for secrecy."

Barnett raised questions about the relevance of "the attorney-client privilege" to the controversy. "The material that Henley sent to Plotz about his own employment status does not sound like information that is confidential to the commission," and Plotz would be entitled to disclose it, Barnett said.

He also said he thought the commission's latest actions might have a negative impact on a proposal by state Sen. Charles Calderon (D-Whittier) to increase the commission's budget from its current $1.3 million. Last week, the Senate-Assembly budget conference committee approved an increase of $1 million to $2.3 million for the next fiscal year.

"One would think that the last thing the Legislature should do is give the commission, with its present leadership, more money to pursue its strange inclinations," Barnett said.

Earlier this year, Malcolm Lucas, chief justice of the California Supreme Court, appointed a special committee, headed by Santa Monica Superior Court Judge David M. Rothman, to review the state's judicial discipline procedures.

At last week's Assembly hearing, Rothman urged legislators to delay taking any action until his committee had concluded its study. But a bipartisan majority rebuffed this request, saying reforms are needed now.

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