Conflict Charge Problematic for Watchdog Panel

With its longtime top lawyer under fire for an alleged breach of ethics, the integrity of California’s judicial watchdog agency could be tarnished if the group’s handling of the controversy is not beyond reproach, legal experts said.

The 11-member Commission on Judicial Performance, which disciplines unethical judges, said last week that it plans to seek an independent examiner to investigate the charges against Victoria Henley, the commission’s chief counsel and top administrator.

She is accused of engaging in a conflict of interest when she handled disciplinary action proceedings against a former judge who was being sued by Henley’s husband.

The lawyer for former Sonoma County Judge Patricia Gray has complained that Henley should have disqualified herself from the proceeding. Henley’s husband, Alameda County lawyer Michael Boli, had filed a malpractice suit against Gray over a civil case she had handled in 1994 while still a lawyer.

If Henley knew about her husband’s 1999 suit when she launched the disciplinary action against Gray, experts agree, she should have withdrawn from the commission proceeding.

The commission, as the state’s guardian against unethical, corrupt and incompetent judges, plays a critical role in maintaining the integrity and credibility of the judiciary.

If the allegations prove true, “then you have a situation where the righteous are being unrighteous,” said Robert Fellmeth, director of the Center for Public Interest at the San Diego University School of Law. “Here’s a body that is supposed to be imposing ethical standards on judges, and they have their own ethical problems.”

Already, the case has caught the attention of the state’s top judge.

“In view of the seriousness of the allegations, I hope they will be resolved expeditiously,” California Chief Justice Ronald M. George said Friday. “It is particularly important that it be resolved in a manner that does not impugn the critical role played by the commission . . . in ensuring integrity among judicial officers.”

The charges have been especially shocking in the legal community because they have been directed at the 48-year-old Henley, whose integrity had never been publicly questioned during her 10 years at the commission’s helm.

“She’s always been a straight-arrow person and a paragon of integrity,” said Peter Keane, dean of the Golden State University Law School and sometimes a critic of the commission.

Henley’s job is to direct the entire staff, including the lawyers who investigate misconduct by judges, and to make recommendations to the commission. The commission has the power to privately or publicly reprimand judges or remove them from the bench.

Henley and her staff launched the disciplinary action against Gray in December. They accused her of unfair campaign practices during her 2000 reelection campaign, when she was challenged by Elliot Daum, a deputy public defender. The disciplinary charges allege that she unfairly accused Daum of condoning the actions of child molesters, robbers and other criminals whom he defended in court. Gray lost the election.

If the commission sustains the disciplinary charges against Gray, it could bar her from serving as a judge again.

At the time the proceedings were launched, Henley’s husband had already filed the civil suit against Gray. Boli’s suit, which is still pending, was filed on behalf of two children. It accuses Gray of malpractice in her representation of the children in a case before she became a judge.

Now, Gray’s lawyer in the commission proceeding, Mark Geragos of Los Angeles, has accused Henley and her husband of using the disciplinary action against Gray as leverage to “enhance their anticipated payday in the civil [malpractice] suit.”

As evidence, Geragos submitted a letter that Boli wrote to Gray’s civil attorney in which Boli mentioned the commission’s disciplinary action and urged the lawyer to reach a settlement. Geragos says the mere mention of the disciplinary action was improper.

Henley refused to comment last week and did not return calls Friday.

If the charges against her are found to be true, the commission will have to move swiftly and forcefully to protect its credibility, said Fellmeth of the Center for Public Interest. “This case raises the hypocrisy angle,” he said.

Fellmeth said the conflict-of-interest charge is more than just an abstract allegation. “She has a duty to be neutral, and that person should not be financially intertwined with the subject of her investigation.”

He and other experts say the commission thus far has been handling the crisis admirably. They praised its decision to find an independent investigator and to postpone further action in the disciplinary proceedings against Gray.

“That was the right thing to do,” said Steve Barnett, a professor at UC Berkeley’s Boalt Hall law school who has been a frequent critic of Henley and the commission. “The commissioners should be commended for the speed with which they acted on this,” he said.

Golden State Dean Keane said the commission’s credibility will suffer if the investigation proves that Henley was aware of her husband’s suit against Gray and didn’t stay out of the disciplinary investigation.

“I think it would look pretty bad for the integrity of the commission and for the integrity of the way the commission handles . . . an investigation,” he said.

Some experts say the case indicates that the commission should review its policies about personal-disclosure requirements among staff members.

Officials with the panel did not respond to questions Friday about the commission’s disclosure policies.

Gerald Uelmen, a professor at the Santa Clara School of Law, said that if the commission doesn’t require its employees to disclose spouses’ economic interests, it should.

But Barnett, the Boalt Hall professor, disagreed, saying requiring spouses to disclose their financial interests is going too far and violates their privacy rights.

“You have to put some trust in your employees,” he said.