11th Circuit Gets Starring Role in Private Conflicts Audit

By William Peacock, Esq. on May 02, 2014 | Last updated on March 21, 2019

This is not a distinction worth bragging about.

The Center for Public Integrity recently reviewed three years' worth of judicial financial disclosures to determine how often, if ever, judges heard cases despite a conflict of interest. While some might argue that any conflicts are too many conflicts, the results weren't completely damning of our federal appeals court system: 26 missed conflicts over three years, out of how many cases? Tens of thousands?

Still, the Eleventh Circuit in particular had a rough time, with a nation-leading seven missed conflicts, four from Judge James Hill alone, plus one shining example of how a judge should deal with such a mistake.

There's Judge Hill

The CPI report starts with a scathing account of Judge Hill's multiple missed conflicts, and the Wolicki-Gables case, a published precedential opinion [PDF] involving an allegedly defective medical device. Hill has acknowledged the conflict in a letter to the parties advising them of their right to seek legal remedies. It was a unanimous opinion, however, so one tainted judge out of three likely means little for the ultimate outcome. (A conflict isn't imputed on the other judges, according to Ethics Advisory Opinion 71. [PDF])

Hill has also acknowledged conflicts in three other cases, each of which were unanimous and unpublished per curiam opinions:

Judge Hull told CPI that he was unaware of the stock holdings due to complicated family trusts.

And Everyone Else

Judge Joel Dubina was called out by the CPI for sitting in on a case involving pesticides, kidney cancer, and Du Pont. His wife inherited a stock portfolio from her late father in 2011, which included shares in Du Pont. Guillermo Ramirez's appeal, decided in 2011, was an unpublished and unanimous per curiam affirmation of a district court's judgment entered on a jury's verdict that Du Pont's pesticide did not cause Ramirez's cancer.

A jury, a district court judge, and two other Eleventh Circuit judges all agreed with Dubina on the case, and it's hard to fault him for missing a conflict that arose from stock inherited by his wife while the case was pending. Fault or no fault, this judgment doesn't seem likely to be impacted by the recently discovered conflict.

Judge Peter Fay also made the list, as he owned stock in Wal-Mart when the company was a party to a disability benefits/ERISA case. Again, it was an unpublished and unanimous per curiam opinion [PDF], so even if the conflict swayed him, there were two other judges in place.

Ditto for Judge Frank Hull, who owned stock in Jacobs Engineering Group, Inc., while Brown v. Jacobs Engineering, Inc. ("Group" was omitted from the docket, which may have something to do with the missed conflict) was pending. Again, unanimous and unpublished per curiam [PDF].

Kudos to Judge Beverly Martin

The CPI report highlights Judge Martin as well, but not in the same critical manner as the other judges. In 2010, she was part of a panel that decided a case where one of the parties was represented by a firm where her soon-to-be ex-husband was a partner. Theoretically, he (and by extension, she) could've gained financially from the decision.

"I just screwed up. I didn't do it on purpose," she explained. "My husband had walked out on me the month before. I don't remember much. I was not living with him. I was devastated. I wasn't sleeping. I wasn't eating. I didn't have my presence of my mind. I shouldn't have participated in the case."

When she discovered the mistake, she promptly recused herself and the opinion was scrapped. A second panel came to the same conclusion, according to CPI.

Likely Outcomes?

Much ado about nothing, it seems. Though the Eleventh Circuit really needs to tune up it's "multilevel conflict checking systems (two automated/electronic systems plus manual checking)," every single one of these cases was a unanimous opinion and seems unlikely to be affected by the conflict, as two other judges agreed with the conflicted judge in each opinion.

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