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STATE OF MINNESOTA IN SUPREME COURT A08-1445

Original Jurisdiction

Per Curiam Took no part, Page, J. Concurring in part and dissenting in part, Anderson, Paul H., J.

Inquiry into the Conduct of The Honorable Timothy Blakely. Filed: September 17, 2009 Office of Appellate Courts

________________________ Douglas A. Kelley, Steven E. Wolter, Kelley & Wolter, P.A., Minneapolis, Minnesota, for Board on Judicial Standards. Martin A. Cole, Director, Office of Lawyers Professional Responsibility, St. Paul, Minnesota, for Office of Lawyers Professional Responsibility. Timothy L. Blakely, Eagan, Minnesota, pro se; and Thomas M. Kelly, Kelly & Jacobson, Minneapolis, Minnesota, for the Honorable Timothy L. Blakely. ________________________ SYLLABUS Censure and suspension from judicial duties for 6 months without pay is warranted for a judge who violated Canons of Judicial Conduct by negotiating and obtaining a substantial legal fee reduction from his personal attorney at the same time he was 1

appointing the attorney to provide mediation or related services in matters pending before him. Public reprimand as an attorney is warranted for a judge who engaged in conduct prejudicial to the administration of justice by negotiating and obtaining a substantial legal fee reduction from his personal attorney at the same time he was appointing the attorney to provide mediation or related services in matters pending before him. OPINION PER CURIAM. The Honorable Timothy Blakely, a judge in the First Judicial District, challenges the recommendation of the Minnesota Board on Judicial Standards ("Board") that he be removed from office as a result of his actions in negotiating and obtaining a substantial legal fee reduction from his personal attorney while contemporaneously appointing her to provide mediation or related services in matters pending before him. The fact finding panel appointed to conduct a hearing on the charges recommended censure and suspension from judicial duties for 6 months without pay. The Office of Lawyers

Professional Responsibility recommends a suspension from the practice of law for 6 months if we accept the Boards recommendation of removal. Judge Blakely asks the court to reject any sanction exceeding censure and asserts that lawyer discipline in addition to judicial discipline would be excessive. We conclude that the appropriate judicial discipline is censure and suspension from judicial duties for 6 months without pay. We further conclude that the appropriate attorney discipline is a public reprimand.

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Judge Blakely was elected as a judge for Minnesotas First Judicial District in 1998. He was reelected to a second 6-year term in 2004. His current term expires in January 2011. In October 2002, Judge Blakely retained William Haugh of the St. Paul law firm of Collins, Buckley, Sauntry & Haugh, PLLP ("CBSH") to represent him in dissolution proceedings. When he retained CBSH, Judge Blakely agreed to pay the "usual hourly rate" charged by CBSH attorneys. At the time, Judge Blakely anticipated that his divorce could be resolved quickly and that his legal fees would be minimal. Judge Blakelys case failed to settle, however, and Christine Stroemer of CBSH took over as the lead attorney in December 2002. Judge Blakely incurred substantial legal fees during the divorce proceedings and was not able to keep current with his bill. In addition to representing parties in divorce and other proceedings, CBSH provides mediation services. Between 2000 and 2002, before Judge Blakely retained CBSH to represent him in his divorce, CBSH Mediation Services made a presentation to the judges in the First Judicial District, offering mediation services in family court dissolution actions. Judge Blakely attended the presentation. Although Judge Blakely was impressed with CBSH, his first mediation appointment of CBSH was not until December 2003, when he appointed Stroemer to mediate a Scott County dissolution action. At the time of the appointment, Stroemer was representing Judge Blakely in his divorce, and Judge Blakely owed CBSH more than $42,000 in legal fees. Over the course of the next three and a half years, Judge Blakely appointed Stroemer as a mediator or third-party neutral in another sixteen cases. 3

In addition to the mediation appointments, Judge Blakely referred people he knew to Stroemer for direct representation. Judge Blakely referred his personal tax accountant to Stroemer for representation in her divorce. The case ultimately generated significant fees for CBSH. While not aware of the exact amount, Judge Blakely believed the fees were similar to his own. Judge Blakely and his second wife also referred families using the wifes daycare business to Stroemer for representation. By the time the final dissolution decree was entered in his divorce in September 2004, Judge Blakely had made payments totaling $8,640 to CBSH, and owed approximately $98,000 in unpaid fees. Although Stroemer had agreed to accept monthly payments toward the bill, after the case was concluded she advised Judge Blakely that he needed "to make substantial payments to this office." Stroemer offered to work with Judge Blakely to establish a reasonable payment plan, but also stressed her inability to continue carrying such a large outstanding balance on CBSHs books. On February 16, 2005, Judge Blakely called Stroemer to protest the interest CBSH was assessing on the unpaid balance on his account. Stroemer responded by e-mail, defending CBSHs ability to charge interest. She also stated "[Q]uite frankly, when the dissolution ends, the client is to pay the outstanding balance . . . with[in] 30 days." Nonetheless, Stroemer agreed to suspend the interest as long as Judge Blakely was making reasonable, regular payments. After acknowledging Judge Blakelys financial situation, Stroemer thanked him for the mediation appointments, stating in her e-mail message, "I DO want to thank you for the referrals and certainly appreciate the work. Ill do my best to get those cases resolved and off the court calendar." 4

On October 19, 2005, Judge Blakely advised Stroemer by e-mail that he was "in a serious bind." He asked Stroemer to consider "a compromise lump sum payment of fees." He expressed hope that she would agree to accept the proceeds from the sale of his home "and forego any more fees." He acknowledged his request would result in a deep discount, but reminded her about the referrals. He stated: I recognize this may not be a small compromise in your view. On the other hand, a sizeable lump sum now may be preferable to very longterm payments. There is also very substantial past, and future, benefit to you from significant business referrals we have made in excess of the compromise we are asking for. Judge Blakely testified before the fact finding panel that the "business referrals we have made" referred to the direct representation referrals that both he and his second wife had made. He denied that he was referring in any way to the mediation appointments. Stroemer responded to Judge Blakelys offer by e-mail 2 days later, expressed her willingness to consider a settlement, and again thanked him for the mediation referrals. She stated: Tim, I would certainly consider a compromised [sic] lump sum payment in lieu of future small monthly payments. I certainly appreciate the mediation referrals you have sent my way and hope that you continue to do so. Despite his subsequent claim that there was no connection between the mediation referrals and the negotiation of a discount on his legal bill, Judge Blakely did nothing to respond to Stroemers statement. On February 1, 2006, Judge Blakely informed Stroemer of a possible purchase offer on his home and pledged to pay "[e]very dime" of an expected $30,000-$31,000 in

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net proceeds to settle his $94,545.62 bill. Stroemer responded that he was asking her to "forego over $60,000 in earned fees." She stated: Nonetheless, it is my hope that we continue a good relationship and that you continue to refer cases to me to assist in mediation/arbitration of family court matters. I have appreciated the referrals in the past. Thus, I will accept no less than $31,000 as a final payment on the account, to be paid at the time of the house closing. Once again, Judge Blakely did not respond to Stroemers statement regarding the mediation referrals. On April 4, 2006, Stroemer accepted Judge Blakelys offer of settlement. Judge Blakely paid CBSH a lump sum of $31,982.84 from the sale of his home to settle his outstanding bill of $94,545.62. Ultimately, Judge Blakely paid $45,372 out of a total bill of $109,501; CBSH wrote off $64,128. On the day of the settlement, Stroemer sent Judge Blakely an e-mail that addressed the compromise. She stated: FYI, I had to do a [sic] lot of explaining to my partners as to the reasoning for writing off over $60,000 in your legal fees. I hope you understand that this was a very difficult decision for me to make. It affected my income. I do hope that you continue to recognize my legal abilities and continue to refer mediation cases to me. Judge Blakely responded by e-mail that he was "deeply appreciative" of Stroemers compromise, but again did not disabuse her of any notion that there was a connection between the mediation referrals and the discounted bill. In 2007, Judge Blakelys former wife filed a complaint with the Board on Judicial Standards accusing Judge Blakely of misconduct. She made a number of allegations in the complaint, including the allegation that CBSH had given Judge Blakely "special 6

financial arrangements." In his initial response to the complaint, Judge Blakely claimed that the allegations were "groundless." He characterized the allegation concerning a preferential fee arrangement with CBSH as "puzzling" and explained that he had experienced "tremendous financial hardship," which left him unable to pay his legal bill. After reviewing his communications with Stroemer, Judge Blakely sent the Board a supplemental response which acknowledged that his reference to business referrals in his October 19, 2005, e-mail while negotiating a fee reduction with Stroemer created "at the very least" an appearance of impropriety. His letter stated: I now also see that as a judge, I should not have mentioned my ability to continue to direct "business referrals" to [the firm] in the context of a negotiation over the fees I owed to them, since this mention at the least raises the issue of the "appearance of impropriety" and might as well constitute the use of my office to "advance . . . a private interest" in a manner to which I do not believe my former wife was alluding to in her complaint. I dont recall that this was my intention at the time that I wrote the email, but I clearly decided to include these words and a reasonable inference from their use could be that I was offering a quid pro quo.1 Judge Blakely later provided a written statement to the Board in which he asserted that his reference to "business referrals" during the legal fee discussions with Stroemer was to "private referrals" of daycare contacts and friends and not mediation appointments. He denied that he had engaged in any improper quid pro quo agreement.

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The Latin phrase "quid pro quo" means "something for something," or, more specifically, "[a]n action or thing that is exchanged for another action or thing of more or less equal value." Black's Law Dictionary 1282 (8th ed. 2004). Blacks Law Dictionary provides an especially relevant example: "[T]he discount was given as a quid pro quo for the extra business." Id.

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The Board filed a formal complaint against Judge Blakely, which charged him with violating the Minnesota Code of Judicial Conduct by negotiating and obtaining a substantial discount on legal fees in his personal divorce case while appointing his divorce attorney to provide mediation or related services in family court matters over which he presided in his official capacity. We appointed a three-member fact finding panel to conduct a hearing on the charges. The panel heard 2 days of testimony and arguments. Judge Blakely and Stroemer both testified that there was no bargain made to exchange mediation and arbitration appointments for a fee discount. Stroemer and another CBSH partner testified that CBSH agreed to the reduction of Judge Blakelys legal bill because Judge Blakely had no money and getting the proceeds from the sale of his house was preferable to getting monthly payments from him for years to come. They also testified that it was not uncommon for CBSH to accept some discount of legal fees in exchange for an immediate cash payment, although they acknowledged that this was one of the largest discounts CBSH had ever agreed to. For his part, Judge Blakely testified that he did not even recognize the possible appearance of a connection between the negotiated fee reduction and his appointments until he re-read the e-mails while responding to the Board. He maintained that only then did he realize that there might be an appearance of impropriety in the exchange of e-mails. Following the public hearing, the panel found that the Board established by clear and convincing evidence that Judge Blakelys actions in making mediation appointments 8

while negotiating a substantial legal fee reduction in his personal divorce case constituted conduct prejudicial to the administration of justice and violated several Canons of the Minnesota Code of Judicial Conduct (2008).2 In summary, the panel found that Judge Blakely: Created an appearance of impropriety by allowing his personal relationship with Stroemer to influence his judicial conduct in violation of Canon 2A, which provides that a judge shall act "at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Used his judicial office to advance his private interests in violation of Canon 2B, which provides that a judge shall not allow personal "relationships to influence judicial conduct or judgment"; "shall not lend the prestige of the office to advance the private interests of the judge or others"; and shall not "convey or permit others to convey the impression that they are in a special position to influence the judge." Conducted extra-judicial activities in violation of Canon 4A, which provides that "[a] judge shall conduct all extra-judicial activities so that they do not: (1) cast reasonable doubt on the judges capacity to act impartially as a judge; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties." Engaged in financial or business dealings that may reasonably be perceived to have exploited his position in violation of Canon 4D(1), which provides that "[a] judge shall not engage in financial and business dealings" that "may reasonably be perceived to exploit the judges judicial position." Accepted a gift, bequest, favor or loan from his former attorney in connection with the reduction of his personal fee obligation in violation of Canon 4D(5), which provides that a judge cannot accept a benefit that could "reasonably be perceived as intended to influence the judge in the performance of judicial duties."
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We have adopted a new Code of Judicial Conduct, which became effective on July 1, 2009, and applies to all conduct occurring on or after the effective date. Unless otherwise noted, all references here are to the Code in effect at the time of Judge Blakelys conduct.

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The panel found that Judge Blakely did not inform the parties in any of the mediation cases that Stroemer was his personal attorney, that he owed her firm substantial legal fees, or that his bill was ultimately reduced.3 The panel also found that Judge Blakely never disabused Stroemer of any belief that there was a link between the referrals and the reduction of his bill. The panel recommended a sanction of censure and suspension from judicial duties for 6 months without pay. The full Board considered the record developed by the panel, and submitted its recommendation to our court. The Board voted unanimously to adopt the panels factual findings "without substantial revision." The Board also agreed that the evidence clearly established that Judge Blakelys conduct violated the Code of Judicial Conduct. With two members dissenting, the Board recommended that Judge Blakely be removed from office, concluding that removal is the only sanction that will restore public confidence in the judiciary. The dissenting members believed the Board should accept the panel

recommendation. In light of the Boards recommendation for removal, pursuant to statute and rule, we issued an order suspending Judge Blakely with pay, pending a final order in this matter. See Minn. Stat.

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