The Ethics of Mudslinging in Court – What is Next for Durham Courts?

I have received a lot of support for my last blog asking Tracey Cline to resign, and appreciate that support. Since then,  I have been weighing the serious allegations of ethical misconduct that have been lodged against Ms. Cline. In this blog I take a closer look at the ethical ramifications of making false statements in filings, failing to notify opposing parties of motions, and making false statements against a judge which impugn the integrity or qualifications of that judge. And I look at what may be next for our Courts.

False Filings and Going Behind Someone’s Back

Ms. Cline has been accused of numerous serious ethical violations. Judge Hudson has found that she violated court orders, suppressed evidence helpful to a person charged with a crime, misrepresented facts to a judge, and failed to correct misrepresentations.

She recently admitted to Judge Hardin that she made false statements in motions filed to get confidential prisoner records. She wanted to get the prisoner records in order to see who had been meeting with them. In a filing with Judge Hardin she said she needed the records for a hearing on a post-conviction motion filed by the prisoners.  The problem is that the prisoners had not filed any post-conviction motion, there was no hearing. And so, it is hard to say why she should need the confidential records for a hearing on motions that did not exist. It was even harder to say why she would tell a judge there was a post-conviction motion pending when there was not one. Even if there was a post-conviction hearing, the prisoner’s visitation list would not be relevant to such a hearing.

Her explanation for the false statement was that she used a template motion that included the false language, and did not read her own motion carefully enough.  It is hard to believe that in such serious matters – matters that involve allegations of prosecutorial misconduct – that she would not read her own filings. At best it shows a reckless disregard for the truth in her filings. At worst it is malicious. I believe it is recklessness.

Another problem with her filings for the prisoner records is that she did not inform the prisoners or their lawyers that she was seeking their confidential records. In pending cases, N.C. Gen. Stat. §15A-951 requires that one side give copiesof filings to the other side.  Rule 3.5 of the Rules of Professional Ethics also prohibit filing motions with judges behind the back of the other side. (Also known as ex parte contact with a Judge) This is an important aspect of our adversarial system. One lawyer reviews the work of their opponent, and there is an opportunity to point out problems to the judge before the judge makes a decision.  If she had given a copy of her faulty motion to the opposing lawyers – they could have pointed out that there was no pending post-conviction matter and that her motion contained false information. That would have prevented the judge from issuing an unlawful order. This would have prevented the need for a hearing in which Ms. Cline had to withdraw her motion, the judge had to rescind the order, and issue a public admonition against her recklessness with the truth. (http://www.newsobserver.com/2011/12/14/1709407/cline-ends-efforts-to-get-prison.html )

Instead, Ms. Cline filed a motion containing false information to get records she was not entitled to get. Judge Hardin issued an unlawful order based upon her bad information. The prison released the documents to the office of Ms. Cline and to the Judge. Now, the documents have been released to Ms. Cline, some are evidently still missing. Judge Hardin held a hearing to allow her to withdraw her request and rescind the order. The problem was that the order had already been served and the Prison had complied with the order.  The cat was already out of the bag. You can’t really rescind an order that has been fulfilled. To try to clean up the mess, Judge Hardin ordered Ms. Cline to “scour” her office for these records and report back to the Court.  The troubling part of this clean-up effort is that Ms. Cline was not certain whether her  office received the records or not.  Nevertheless, the Judge asked her to return the documents to him if she had them. This felt akin to asking the fox to see if there are any eggs left in the den, and please return them uneaten. There was no way to double check or verify whether she had the records, whether copies had been made, whether someone in her office already reviewed and made use of these records. It is a complete mess.

The most troubling aspect of this violation was her explanation. When asked why she filed this request without notifying other counsel, she answered that her office “routinely” made these kinds of requests without notifying other counsel. What? Routinely? Isn’t that a pattern of misconduct?

Mudslinging a Judge

As serious as these ethical issues are, I believe that there is another serious ethical issue that will weigh heavily against her.

Rule 8.2 of the Rules of Professional Conduct says that “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, or other adjudicatory officer or of a candidate for election or appointment to judicial office.”

Ms. Cline filed a motion to have Judge Hudson removed from hearing all criminal matters in Durham. At the hearing she could not provide any legal authority supporting her contention that the Judge could be removed from all cases. Judge Fox dismissed the motion noting that it was not grounded in the law or the facts. (http://www.newsobserver.com/2011/12/06/1692501/cline-fails-to-have-judge-taken.html ). One of the
motions she drafted to have Judge Hudson removed is over two hundred pages. Another one is just thirteen pages. In these motions she makes statements which are not true about Judge Hudson. She used the motions as a way to vent her frustration about Judge Hudson’s rulings, to make an argument as to why he is not a good judge in her opinion. She did not keep to the facts. And in her argument she made exaggerations about Judge Hudson that are false, attacking his qualification and integrity.  Some of these statements include the following:

•  “That the District Attorney alleges, upon personal knowledge, and upon information and belief, that the premature decisions of this Court based on unethical actions have transformed the criminal justice system in the Fourteenth Judicial District into a monarch, wherein no guilty plea is safe or untouchable even when there has already been a hearing on a Motion for Appropriate Relief”

Even if you think that Judge Hudson’s rulings are bad, no one can seriously suggest that he has created a “monarchy.” Judge Hudson is still an elected official, subject to the review of the Court of Appeals and Judicial Standards Commission. If she believes that he has committed misconduct, these are the proper channels to have his rulings reviewed. It is unethical to call him a “monarch” in a pleading. It is also particularly unfair way to attack a judge, because he has no way or opportunity to defend his reputation and integrity. I will say unequivocally that Judge Hudson is not a monarch. Her false statement attacks his integrity because she is saying he is improperly and unethically using his authority as a judge. She cannot deny making the statement.  She can’t say it was a template that she did not read carefully. She signed the pleading. And she cannot say that it is factually accurate.  I imagine the State Bar Hearing could go something like this:

BAR COUNSELOR:       Isn’t it true Ms. Cline that you wrote that Judge Hudson had transformed the Judicial District into a monarchy?

MS CLINE:                      Yes that is what, I wrote.

BAR:                                 You did not mean to say he was actually the unelected dictator of the judicial district did you?

MS. CLINE:         No, I was making the argument that he was improperly exercising his authority. He had made rulings that were wrong and unethical and ….

BAR:                                 But that is not what you wrote, is it.

MS. CLINE:                     No, that is what I wrote in so many words.

BAR:                                 The words you wrote said he was a “monarch,” isn’t that correct?

MS. CLINE:                     Yes.

BAR:           Those words were not necessary to your pleading. You could have alleged the facts without calling him a “monarch” isn’t that right?

MS. CLINE:                     I suppose so.

BAR:                                 And isn’t it true that he is not actually a “monarch.”

MS. CLINE:                     No. He is not actually a monarch. He was acting like a monarch.

BAR:                                 So that is something you know to be false about Judge Hudson.

MS. CLINE:                     Yes it is false. But I was just making an argument.

BAR:                                 That was your opinion about Judge Hudson wasn’t it.

MS CLINE:                      Yes, my opinion.

BAR:                                 It is not an actual fact.

MS CLINE:                      No, it was an argument.

BAR:                                 Don’t you understand, Ms. Cline that motions are not the place to give your opinions about the integrity of a judge? Motions are supposed to set forth facts asking a Court for action based upon the law. You went well beyond what was necessary in your motion and engaged in name calling against your Chief Resident Superior Court Judge – didn’t you?

In another statement, she wrote:

•  The District Attorney alleges, upon information and belief, Orders full of false findings are relayed to and relied upon by the press to agitate or ignite even more distrust in the prosecutors, law enforcement and the entire criminal justice system and for the root of this unjustified contempt to be conceived in the womb of justice, a judge, sworn to be fair and impartial, destroys the dignity of the office of this Honorable Court and for those who use this Court for special situations outside the lines of right and wrong; don’t hide your dirty hands; and to those who have seen, and know, yet turn a blind eye, acknowledge your hands are covered with the blood of justice.  And be ashamed

Once again, it is not true that Judge Hudson has “blood on his hands,” or he has “unjustified contempt conceived in the womb of justice.” These are gross and reckless exaggerations that are false, and calculated to attack the integrity of a judge. There is no excuse for these statements, and no defense to this ethical violation.

In another statement she wrote:

•  “The District Attorney alleges, based upon information and belief and personal knowledge, that the State’s right to be heard has been stripped away under Orders of this Honorable Court, the victims’ rights are lost by this Court’s calculated schemes, the chief medical examiner’s opinion is clouded by a “court created conspiracy” unsupported by any facts or law; families of murder victims’ faith is forfeited by fictitious findings of this Court, and victims of decade old crimes are being emotionally and relentlessly repeatedly raped by this Court’s rulings, based only on retaliation disregarding what is right, and the criminal justice system’s credibility is a causality of this Court’s callous misconduct.”

It is a stunning to see the District Attorney accuse the Chief Resident Superior Court Judge of  “relentlessly and repeatedly” “raping” victims. The overtones of this statement are damning and alarming. They have no place in a filing by an elected official.

The reason for this ethical rule is to protect judges from attacks which could make people question the ability of our Courts to be fair and impartial. Anyone who did not know Judge Hudson and who read Ms. Cline’s filing would be afraid to walk into his courtroom.  I would not expect this kind of vehemence in a motion, directed toward a judge from any attorney. But this vituperative language is unconscionable coming from the elected District Attorney levied the sitting Chief Resident Superior Court Judge. Our Judicial District cannot function if our top prosecutor is accusing our top judge of being a “monarch” with “blood on his hands,” “relentlessly and repeatedly raping victims.”

Ms. Cline should withdraw the motion, even though it has been ruled upon. Withdraw any similar filings in other cases. And issue a public apology to Judge Hudson admitting that she over reached in her language and misspoke. This would go a long way toward mitigating the damage she has inflicted on her ability to practice law.

As a lawyer I am trained to look at past similar cases to see how they were handled, and compare them to the current situation to try to forecast what might happen.  There are not many reported Bar decisions on violation of Rule 8.2.

In 1996, Attorney Joseph Deluca was reprimanded for putting this language in campaign literature when he was running for judge: “’When the civil trials are finally held and verdicts rendered, the hard-working small business owners are likely to bear the brunt of juries approved by, and given their final instructions or charges by, a corps of liberal democratic activist judges appointed by Jim Hunt.” Issuing a reprimand, the Bar held that “the aforementioned statement impugns the integrity of the judicial system in violation of Rule 1.2(d) of the Rules of Professional Conduct. Your statement also calls into question the impartiality of the judiciary with respect to cases involving small business owners, in violation Rule 8.2(c) of the Rules of Professional Conduct.” (http://www.ncbar.com/orders/volume%203/06041288.pdf)

In 1994 Attorney Baiba Borbeau was reprimanded for complaining to a judge after a hearing that the decision was “subjective and biased and without the trappings of truthfulness, honesty and fairness.” When issuing a reprimand, the Bar determined that these statements were without any basis in fact, were a subjective opinion, and violated Rule 8.2 of the Professional rules of ethics. (http://www.ncbar.com/orders/volume%203/06040681.pdf)

In Ms. Cline’s  case, I expect that the viciousness of the language, coupled with the repetition, and refusal to withdraw the language will weigh heavily against her. The Bar might find that the attack on Judge Hudson is extreme, and repetitive. There is now a pattern of attacking Judge Hudson. They will also weigh her refusal to withdraw the statements against her because this indicates a lack of understanding of the importance of being reserved in stating personal opinions about judges. The State Bar might note that the motions were not based in fact, but were based upon her opinion, “information and belief.” Also, the fact the Judge Fox reviewed her motion and dismissed it as without basis will hurt. The fact that she filed a complaint with the judicial standards commission will weigh heavily against her, especially if that complaint is dismissed. She has special duties as a prosecutor that will be weighed against her. In mitigation, she has no other prior disciplinary actions against her.  I would estimate that this kind of violation deserves at least a temporary suspension of her bar license.

These cases I reviewed only dealt with making statements against judges. When you add to that the filing of false information with the court, attempting to obtain confidential prisoner records ex parte, and the other ethical allegations against her – the prognosis is not good for her future as an attorney.

It feels odd to criticize Ms. Cline for speaking freely about her thoughts. I am currently representing an occupy Raleigh protestor on behalf of ACLU-NC to defend her speech rights. (http://www.newsobserver.com/2011/12/02/1684191/aclu-represents-occupy-protester.html)  Why should the protester have the freedom to say almost anything she wants, and Ms. Cline cannot?  That is a tricky question deserving of perhaps another blog. A lawyer, officer of the court, has duties to the public and the Court that often limit our speech in order to serve the good of the judicial system.

What Happens Next?

People who work in the court house are exhausted by this scandal. Durham has generated more legal news in the last six months than all of the other counties combined. We are all wearing thin under the microscope of public opinion, and want to get back to the work of everyday cases.

The longer this drags on, and the more Ms. Cline makes unfounded attacks on Judge Hudson, the harder it is to get important work done in the criminal courts. I think it is very unlikely that Ms. Cline will resign. As was the case when Mike Nifong came under fire, I expect that we will see an exodus of Assistant District Attorneys leaving that office.

There is a new set of Superior Court Judges coming to Durham in the next six months, and it will be interesting to see how they handle our mess. I expect Judge Donald W. Stephens from Wake County will have little tolerance for the kind of shows we have witnessed in court of late. He is the Chief Resident Superior Court Judge of Wake County.  He is the brother of Ronald Stephens, former Durham District Attorney and longtime Superior Court Judge.  Judge Donald Stephens is all too familiar with the special nature of the Durham Judicial system. He is not reluctant to reign in attorneys, even prosecutors, when they are heading off the deep end.

I expect the bar will issue an ethics complaint against Ms. Cline in January or February. Even if the State Bar files a bar complaint, there will be opportunity to file a response, to conduct discovery, and have a hearing. This could take many months.

So what happens next depends on us. We can wait and see what happens. Perhaps Ms. Cline will change her tune, become more measured and thoughtful. Perhaps she will admit she has over-reached, over-stated her case, and withdraw the most outrageous of her statements. Perhaps she can finish her term, and then we can vote at the ballot box the way democracy is supposed to work.

Or maybe, the mess will continue and get worse. Perhaps we will suffer in this same miserable stalemate for the next year. We may need to organize and express as a community our desire that this sad chapter in Durham Judicial history come to a quick end, so we can begin to build a new vision of justice together in our community.  There are many hard working police officers, community activists, mediators, judges, prosecutors, defenders, attorneys, social workers, therapists who are already growing the seeds of a new and better justice system for Durham. We need to prune the tree at the top so these seeds can grow. I am strongly considering trying to help a group of citizens and attorneys draft and file a removal action. I believe to succeed such a removal petition should clearly represent the will of the community and voice a vote of no confidence in Ms. Cline’s leadership in office.

What do you want?  It would be helpful to hear from you. Let me know by leaving a comment to this blog writing me a letter at

Scott Holmes

Brock, Payne & Meece

3130 Hope Valley Road

Durham, NC 27705

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