In re Frank

• Decision Date: 17 February 2000
• Docket Number: Inquiry Concerning a Judge, No. 96-30, re Richard H. FRANK.,No. SC92630.,SC92630.
• Citation: 753 So.2d 1228
• Parties: Inquiry Concerning a Judge, No. 96-30, re Richard H. FRANK.
• Court: Florida Supreme Court

753 So.2d 1228

Inquiry Concerning a Judge, No. 96-30, re Richard H. FRANK.

No. SC92630.

Supreme Court of Florida.

February 17, 2000.

Honorable Frank N. Kaney, Chairman, and John Beranek, Counsel to the Hearing Panel, Florida Judicial Qualifications Commission, Tallahassee, Florida; and Steven A. Werber and John S. Mills, Special Counsel, Jacksonville, Florida, for Petitioner.

Michael C. Addison, Tampa, Florida, for Respondent.

PER CURIAM.

We review the recommendation of the Judicial Qualifications Commission (JQC) that Judge Richard H. Frank,¹ retired Chief Judge of the Second District Court of Appeal, be reprimanded for violating Canons 1, 2, and 3 of the Code of Judicial Conduct. We have jurisdiction. See art. V, § 12, Fla. Const. As explained below, we disapprove the JQC's findings and conclusions as to the first statement² comprising Count I, but approve as to the second statement³ in Count I; approve as to Count II; disapprove as to Count III; and issue a public reprimand and announce the policy that reprimands for such serious conduct should be delivered in person. We direct that Judge Frank pay the costs of these proceedings, and remand this cause to the JQC for a determination of the amount of such costs. See art. V, § 12(c)(2), 12(j); see also In re Hapner, 737 So.2d 1075 (Fla.1999)

.

On March 20, 1998, the Investigative Panel of the JQC filed in this Court a four-count "Notice of Formal Proceedings" against Judge Frank, charging him with violating Canons 1, 2, and 3 of the Code of Judicial Conduct. The allegations set forth in the first three counts of the notice related, at least tangentially, to Judge Frank's involvement in matters surrounding his daughter Stacy Frank's divorce from her husband, Mark Straley, both being members of The Florida Bar (the Bar). The allegations contained in the fourth count of the notice specifically related to a telephone conversation between Judge Frank and Kurt Weber, whose son Craig was, at the time of the telephone conversation, married to one of Judge Frank's other daughters, Hillary. The specifics of these counts are summarized below.

In Count I of the notice, the Investigative Panel first alleged that shortly before September 6, 1993, a St. Petersburg Times newspaper reporter, Bruce Vielmetti, interviewed Judge Frank concerning the then-ongoing marital dissolution proceeding involving Stacey Frank and Mark Straley. During this interview, Judge Frank allegedly made false or misleading statements which were included in an article written by Mr. Vielmetti that was published in the September 6, 1993, edition of The St. Petersburg Times. The Investigative Panel then alleged that Judge Frank made similar false or misleading statements, under oath, during a hearing before a grievance committee of the Bar; Judge Frank had filed a complaint with the Bar against Mark Straley, in part based on Mr. Straley's alleged instigation of the Vielmetti article. The general nature of these allegedly false and misleading statements made by Judge Frank was that he had "studiously stayed away" from the divorce litigation involving Stacy Frank and Mark Straley and that he "never discussed" with Judge Chris Altenbernd, a colleague on the Second District, the representation of Stacy Frank by George Vaka, an appellate lawyer and former law partner of Judge Altenbernd.

In Count II, the Investigative Panel alleged that Judge Frank's relationship to Mr. Vaka might have caused parties opposing Mr. Vaka in appeals before the Second District to reasonably question Judge Frank's impartiality, but that Judge Frank (1) did not recuse himself from cases in which Mr. Vaka appeared as counsel; and (2) did not disclose to counsel opposing Mr. Vaka that Mr. Vaka was representing Stacy Frank.

In Count III, the Investigative Panel alleged that Judge Frank improperly interfered with the Bar grievance proceeding against Mr. Straley by exerting his position as a judge in a manner unbecoming of his office. Specifically, the Investigative Panel alleged that after the referee in the grievance matter granted summary judgment in Mr. Straley's favor on a majority of the grievance, and after the Bar dismissed the remainder of that grievance, Judge Frank improperly complained about the competence of Bar counsel prosecuting the grievance and caused such counsel's job to be placed in jeopardy.

Finally, the Investigative Panel alleged in Count IV of the notice that during the divorce proceedings which involved his daughter, Hillary Frank Weber, and his son-in-law, Craig Weber, Judge Frank telephoned Mr. Weber's father and threatened to use his authority as a judge to have Craig Weber arrested or committed to a psychiatric facility.

On April 13, 1998, Judge Frank, through counsel, filed an answer to the Investigative Panel's formal notice. In his answer, Judge Frank generally agreed to many of the facts asserted in the notice, but he specifically denied the factual allegations relating to the content of his telephone conversation with Kurt Weber. Overall, Judge Frank argued that the facts to which he agreed failed to establish that he had breached the Code of Judicial Conduct.

Thereafter, the Hearing Panel of the JQC conducted a hearing on Judge Frank's case. After conducting the two-day hearing, the Hearing Panel filed its findings, conclusions, and recommendations in this Court. The Hearing Panel's specific findings as to each count provide the following:

COUNT I-Grievance Testimony

The Commission finds that Count I has been proven true in part. The Count asserts that Judge Frank made statements to a St. Petersburg Times reporter, that he filed a grievance complaint against Straley and that he testified falsely before the grievance committee. The Commission concludes that the important and essential allegations here, as stated in the title of Count I, is the sworn Grievance Testimony. Thus, no specific findings are made in regard to the alleged unsworn statements made to the reporter nor the assertion that Mr. Straley had "inspired" adverse comments in the newspaper.

The Commission does conclude that the testimony before the Grievance Committee was untrue and misleading. Judge Frank stated: "I have studiously stayed away from Stacy's divorce litigation" and "I never discussed with Chris Altenbernd the representation of my daughter, to the best of my knowledge." As a matter of fact, based on the clear and convincing evidence, the Commission concludes that Judge Frank had not stayed away from the divorce litigation and that, in fact, he had discussed the representation of his daughter with Judge Chris Altenbernd. Even though Stacy Frank's name may not have been expressly mentioned in this conversation between Judge Altenbernd and Judge Frank, we conclude that both fully understood that the appellate representation of Stacy Frank was being discussed and as a result of that conversation, Judge Altenbernd contacted Mr. Vaka and asked him whether he would be interested in taking on the appellate representation of Judge Frank's daughter [footnote omitted]. Judge Altenbernd was entirely proper in making the inquiry of Mr. Vaka and Judge Altenbernd certainly did not attempt to actually retain Mr. Vaka at the request of Judge Frank. Stacy Frank was a lawyer and an adult and Mr. Vaka simply expressed a willingness to discuss the matter of her representation with her. (T. 486-7). This would have been a new area of practice for Mr. Vaka. Stacy Frank made her own decision to hire Mr. Vaka. (T. 637-8).

The Commission finds that the grievance testimony quoted above was untrue and misleading and violative of the Code of Judicial Conduct.

COUNT II—Failure to Recuse or Advise Counsel

Count II charges that attorneys opposing Mr. Vaka before the Second District Court of Appeal on any panel including Judge Frank, might reasonably question Judge Frank's impartiality. This count deals with both recusal and a failure to advise. The Commission concludes that there has been no clear and convincing proof that Judge Frank was required to recuse himself on cases involving Mr. Vaka, but that the evidence does show clearly and convincingly that he should have advised counsel of the fact that he had been involved in Mr. Vaka taking over the appellate representation.

Judge Frank presented the testimony of Judges Schwartz, Webster, Lazzara and Campbell on this and other issues. Each of these judges are extremely well-respected members of the judiciary and each of them testified unequivocally to the extremely high reputation of Judge Frank for honesty and ethics. (T. 432, 449, 524, 556). This testimony is accepted and we fully recognize Judge Frank's reputation.

Each of these four judges testifying on the issue were asked whether there was a difference between the standard for disqualification and the standard for advising counsel of facts which would reasonably warrant an attorney in questioning a judge's impartiality. There appears to be no clear rule other than case law on the subject of disqualification by an appellate judge. As stated in [In re Estate of Carlton, 378 So.2d 1212, 1216 (Fla.1979)], the decision is a "personal and discretionary" matter with each individual judge. Judge Schwartz testified that there was "perhaps" a difference between the test or standards for recusal and disclosure. (T. 439). Judge Webster testified that the issue was uncertain and that he personally did not know if there was a difference between the standards for disqualification and disclosure. (T. 462). He did agree that, hypothetically, a lawyer would want to know if an appellate judge had an indirect financial interest in an attorney's representation of a family member at less than a market rate. (T. 469-70). Judge Lazzara testified that in his view the standards for recusal and disclosure were basically the same. (T. 540). Judge Campbell testified that he did not know if there was or should be a difference between the test for recusal and the

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