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How close is too close for judicial bias?

A plaintiff's lawyer becomes a judge and looks to clear cases from his practice. He hands off one contract dispute to another lawyer, with the understanding that they will split the proceeds from any successful judgment.

A plaintiff's lawyer becomes a judge and looks to clear cases from his practice. He hands off one contract dispute to another lawyer, with the understanding that they will split the proceeds from any successful judgment.

Years pass and the case lands in his own courthouse, before a fellow judge who orders a $1.7 million payout.

Is that wrong? Even if the two judges never discussed the case, did it present enough appearance of impropriety that the case should have been transferred to another courthouse entirely?

A state appeals court wrangled with that question, posed in a Montgomery County case, for three years. Its answer last month - a 4-4 split - could have ripple effects far beyond the Norristown courthouse, especially as the state judiciary battles larger questions of ethics and impartiality.

Because the Pennsylvania Superior Court split evenly, the trial judge's decision that he need not recuse himself was upheld. And even though the ruling will almost certainly be appealed to the state Supreme Court, experts say the divide and the strongly-worded dissent should weigh heavily the next time a judge faces such a question.

"The message was sent loud and clear to every lawyer and every judge in the state," said Paul R. Rosen, one of the lawyers in the case. "Next time someone is in front of any court in Pennsylvania where one of the judges has a piece of the action on that case - no one's going to ever do it again."

The case dates to 1994, when carpet contractor Roy Lomas sued James Kravitz, the developer of a Whitemarsh housing complex, over a $30,913 unpaid bill. Lomas' lawyer, Thomas C. Branca, was elected to the Common Pleas Court in 2001 and handed the case to Rosen.

At some point, Lomas had pledged to give Branca "a third referral of the net proceeds as a fee." Rosen said there is no written agreement and it is unclear what the one-third would comprise.

The trial judge, Thomas P. Rogers, and Kravitz's attorneys said they did not learn of that fee until the second-to-last day of trial, after all sides had agreed to a non-jury proceeding.

After finding Kravitz liable of fraudulently avoiding his debt to Lomas, Rogers calculated nearly 20 years of attorneys' fees, interest, administrative costs and punitive damages. It added $1.67 million to the developer's original bill.

Kravitz's attorney, Thomas A. Leonard, said they would not have agreed to a bench trial if they had known in advance that, as the dissent explained it, "a judge is deciding how much money one of his brethren is going to put in his pocket."

Legal experts said Rogers followed the judicial code, vague as it may be, and decided fairly on liability and damages. Even the defendant conceded "there is no evidence that Judge Rogers showed bias, unfairness, or prejudice," the majority wrote.

Branca, many argued, should have disclosed his referral fee earlier.

Compared to recent judicial scandals involving ticket-fixing, pornographic emails, and close ties between judges and prosecutors, the actions of Rogers, and to a lesser extent Branca, appear fairly benign. But experts say the ruling could provide one piece of the judicial reform puzzle.

In his dissent, Judge Victor P. Stabile said "the appearance of impropriety alone forms an independent basis for recusal even when no actual bias, unfairness or prejudice is shown." Judges Mary Jane Bowes, Christine Donohue, and Jacqueline O. Shogan joined Stabile in that opinion.

Even Judge Jack A. Panella, who ruled against recusal twice on this case, felt "compelled" to write of Branca that "this type of situation should be avoided in the future."

Leonard agreed that the split ruling may have sent a message to lawyers and judges but said he and his client will pursue a Supreme Court precedent to make sure it sticks.

"They've dealt with the esoteric legal issue of appearance of impropriety," Leonard said. "But I think it goes back to the question of: 'Can the judiciary police itself?' The answer seems to be that there has to be a lot more focus and sunshine or the outcomes won't be any different."

Thomas G. Wilkinson, who served on the Pennsylvania Bar Association's task force to update judicial ethics rules in 2013, said Kravitz's "long and tortured history" in the case may have hurt his argument for recusal.

In 22 years of litigation, judges ruled against Kravitz at nearly every stage and chastised him as a serial abuser of the civil courts. The only thing he ever won was more time.

Still, Wilkinson said there are precedents for recusing an entire bench, and "it is not difficult to request that an out-of-county judge be assigned."

Samuel C. Stretton, who has defended judges and attorneys in disciplinary proceedings, questioned whether the court was being more sensitive to judicial ethics because of the recent scandals.

"I'm concerned that in this particular climate, people are bending over backward," Stretton said. "The fact it smells bad doesn't mean it is bad."

He said tightening the standard on recusals would make it easier for attorneys to go "judge shopping."

"This whole concept of appearance of impropriety is a slippery slope," Stretton said. "You might have judges being paid $180,000 a year [and then] staring out the window because they can't hear any cases."

But Abraham C. Reich, co-chair of the Fox Rothschild firm and a professor of legal ethics at Penn, said such cases would be rare and worth the inconvenience of finding an outside judge.

"If it doesn't smell right, they ought not to proceed in a case," he said. "It is extremely important that parties appearing before a judge have supreme confidence in the integrity of the decision made."

jparks@philly.com

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