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Commentary: Retired judges should be allowed to mediate and sit on the bench

I find myself taking strong exception to The Daily Record Editorial Advisory Board’s recent editorial advocating that retired judges who also privately mediate be barred from continuing to serve on the bench on a part-time basis. (“Private mediator, judge or both?”, Nov. 24) Not only do I feel this recommendation is a solution in search of a problem, but it would deprive counsel and the courts of a valuable resource.

When I started practicing law 36 years ago, private mediation was virtually non-existent. “Settlement courts” began to pop up with Judge Frank E. Cicone’s settlement conferences in Baltimore County (who among us with gray or receding hair does not have war stories from Judge Cicone’s chambers?) and with pre-trial conferences with retired judges in Baltimore city. Gradually, a number of judges who were effective at settling cases either retired early or were compelled to do so at the mandated age of 70. They then started the trend to the more widespread use of other retired judges in private mediation to resolve cases.

As someone who focuses almost exclusively on insurance defense and self-insured work involving torts, I find that most attorneys (and their clients) welcome the opportunity to mediate cases to determine if a case can be settled. Although a number of private attorneys are fine mediators, the gravitas of a retired judge is instrumental in many cases in moving a recalcitrant attorney, plaintiff, or defendant into reconsidering a hardened position. It is difficult for such individuals to look a retired judge in the eye and say, “I know juries better than you do.”

There is no question that retired judges also perform an invaluable service to the bench in returning to the bench for part-time service and providing assistance to overburdened courts. Quite a number of them work in areas such as criminal and juvenile cases, meaning I have no possible interaction with them outside of mediation.

With all my years of experience, I can only think of one case where a judge with whom I have mediated sat on one of my civil cases, and that case, too, was in settlement court in Baltimore city. It would be a tremendous loss to our courts if retired judges were barred from handling part-time matters for our courts if they were to continue private mediation.

All judges are already required either to recuse themselves or bring potential conflicts of interest to the attention of counsel in cases where they know the parties or counsel either on a significant social, business, or other professional basis such that it might raise an issue. Similar action by judges is required with cases that might have an impact on their economic well-being (which is why our local federal court has a corporate disclosure form). Indeed, a federal judge in one of my recent cases advised the five other sets of counsel that she once was a neighbor of mine and asked if anyone objected to her handling the case. No one did. Ironically, that complicated case later settled with the tireless assistance of a retired Maryland appellate judge who also continues to sit on the bench occasionally. A multi-week trial was avoided in good measure due to that judge’s persistence.

Why is it that sitting judges are routinely entrusted with the responsibility of determining and clearing ethical conflicts while the Editorial Advisory Board apparently feels that retired judges are incapable of doing so? Why the unequal (and unfair) difference in treatment? Should we not assume and expect retired judges to have the same amount of integrity as active judges? I believe the Editorial Advisory Board’s position does an injustice to retired judges.

If the Editorial Advisory Board and others are concerned about this issue, then why not work towards amending the Judicial Code of Conduct to require more disclosure rather than institute a draconian flat ban?

Requiring retired judges to choose between mediating cases or handling bench assignments would result in a unnecessary and tremendous loss to both the bench and bar. It would also be a sad, self-inflicted wound we can ill afford.

John B. Sinclair is a partner with Crosswhite, Limbrick & Sinclair LLP in Baltimore. He can be reached at jbs@cls-law.com.