It looks like Eakin's disciplinary hearing may go to trial. It seems that the mediation attempt by Sprague is going nowhere. I am wondering if the court was interested in trying to avoid a trial and have Eakin resign by letting Eakin collect his pension, arranging a deal like what McCafferty got. Perhaps Costopoulos (Eakin's defense counsel) thinks that he can get Eakin off. I hope that isn't what will happen as I would like to see Eakin have to pay some price for his transgressions. The story by Ben Seal was published in the Legal Intelligencer on Feb. 9.
http://www.thelegalintelligencer.co...lled-Last-Week?mcode=0&curindex=0&curpage=ALL
Efforts at mediation in Justice J. Michael Eakin's disciplinary case stalled early last week, according to key parties in the matter.
The Court of Judicial Discipline appointed attorney Richard Sprague as a third-party mediator after Eakin and the Judicial Conduct Board—the prosecutor in his ethics case—asked the court to help them reach a settlement, but Sprague said Monday he cannot carry out mediation under the court's strict guidelines.
The Philadelphia Inquirer first reported over the weekend on Sprague's role.
Both Sal Cognetti Jr., special counsel to the CJD, and Eakin's attorney, William C. Costopoulos, said a trial before the court is carrying on as scheduled. Sprague said he was first contacted by the court in January and has heard nothing from anyone involved in the case since he sent Cognetti a letter Feb. 2 indicating he had "nothing to report to the court and there will be nothing to report."
In a letter sent earlier in the day on Feb. 2, Cognetti told Sprague that the court would have no role in settlement discussions, but if the parties, with Sprague's assistance, were to reach an agreement they wished the court to consider, they could request permission from the court to present proposed stipulations.
"The court, after proper notice, will then convene a hearing in open court and on the record, and, after hearing from counsel, will make a decision to entertain additional stipulations which could lead to a resolution," Cognetti wrote.
Eakin's attorneys and the JCB attorneys handling the case were all included on both letters.
Sprague said Monday the court's "rigorous" directions "make it well nigh impossible to get an agreement by the parties." He sought a meeting with the court to discuss the court's process and understand what was expected of him, he said, but the court's desire to remain entirely removed from the mediation process stood in the way. Sprague would not say whether he had already met with the parties. He said he did not know whether the parties had any preliminary talks. Sprague said he requested his mediation be uncompensated.
Costopoulos said Eakin welcomed Sprague's appointment. He also said he is still hopeful a resolution can be reached through mediation, and he will "never abandon that hope."
Sprague said the court likely read his letter as an indication that there would be no further mediation. Cognetti confirmed the inference.
"The way I interpret it, there's no mediation going on and there will not be any," Cognetti said.
Cognetti said Monday it appeared clear at Eakin's Jan. 21 pretrial conference that a "more streamlined" approach could benefit the court. A trial could require as many as four days of testimony based on both sides' witness lists and comments made at the Jan. 21 conference.
If the CJD were to accept any stipulations proposed to the court following mediation, Cognetti said in the letter, the parties could submit a proposed resolution, in writing and on the record, for the court to take under advisement. His letter emphasized that the court would not participate in any settlement discussions, "with the exception of requests or motions made in open court and on the record."
Sprague said the court's stance could "nullify any attempt to reach an agreement."
No trial date has yet been set. Judge Jack Panella on Jan. 21 asked both sides to submit briefs on a number of issues presented at the pretrial conference, including the admissibility at trial of emails Eakin received, but did not send, and which the JCB could not prove he opened.
"The court is going ahead on the track they laid down on the 21st," Cognetti said Monday.
Attorneys familiar with the judicial disciplinary process said the appointment of a third-party mediator in such a case is unprecedented.
Sprague, a former president judge of the CJD, said it is not unusual for parties to attempt to reach an agreement and avoid trial, but he had not heard of any cases before the CJD in which a third-party mediator was appointed to speed along the process.
Former Justice William H. Lamb, also a former CJD president judge, said transparency is key to the process. In this case, though, the court, composed of volunteers, was likely looking to cut down on what would be a "tremendously lengthy proceeding," he said.
"We always tried to make sure that our court acted in a very transparent way, because, obviously, the public's trust is something that you strive very hard to achieve," Lamb said.
Sprague's appointment appears to be "an attempt by the Court of Judicial Discipline to see whether there is a middle ground that can be achieved in the situation," he said.
Ethics attorney Ellen Brotman of Griesing Law said she was "baffled" by the appointment of a mediator and could not see what role Sprague would play in the process.
"It appears to me that Justice Eakin has pretty good, experienced attorneys who could negotiate a resolution for him without a mediator," Brotman said.
Samuel C. Stretton, who handles judicial disciplinary matters and testified at Eakin's December suspension hearing, said he was unclear on the role a mediator would play in Eakin's case. He suggested Eakin could agree in mediation to give up the opportunity to become chief justice when Chief Justice Thomas G. Saylor retires.
Multiple attorneys noted Eakin's pension as a likely topic of conversation in any mediation proceedings. Former Justice Seamus P. McCaffery was allowed to retain his pension when he stepped away from the court in 2014 in the midst of the same email scandal that has ensnared Eakin.
"If I'm representing a public official who has a valuable pension at stake, it's certainly a very high priority to protect it," Brotman said. "That risk makes it very uncomfortable to litigate the substantive issues."
Francis J. Puskas II, the JCB's deputy chief counsel, did not return a call for comment.
Ben Seal can be contacted at
215-557-2368 or bseal@alm.com. Follow him on Twitter @BSealTLI. •
http://www.thelegalintelligencer.co...lled-Last-Week?mcode=0&curindex=0&curpage=ALL
Efforts at mediation in Justice J. Michael Eakin's disciplinary case stalled early last week, according to key parties in the matter.
The Court of Judicial Discipline appointed attorney Richard Sprague as a third-party mediator after Eakin and the Judicial Conduct Board—the prosecutor in his ethics case—asked the court to help them reach a settlement, but Sprague said Monday he cannot carry out mediation under the court's strict guidelines.
The Philadelphia Inquirer first reported over the weekend on Sprague's role.
Both Sal Cognetti Jr., special counsel to the CJD, and Eakin's attorney, William C. Costopoulos, said a trial before the court is carrying on as scheduled. Sprague said he was first contacted by the court in January and has heard nothing from anyone involved in the case since he sent Cognetti a letter Feb. 2 indicating he had "nothing to report to the court and there will be nothing to report."
In a letter sent earlier in the day on Feb. 2, Cognetti told Sprague that the court would have no role in settlement discussions, but if the parties, with Sprague's assistance, were to reach an agreement they wished the court to consider, they could request permission from the court to present proposed stipulations.
"The court, after proper notice, will then convene a hearing in open court and on the record, and, after hearing from counsel, will make a decision to entertain additional stipulations which could lead to a resolution," Cognetti wrote.
Eakin's attorneys and the JCB attorneys handling the case were all included on both letters.
Sprague said Monday the court's "rigorous" directions "make it well nigh impossible to get an agreement by the parties." He sought a meeting with the court to discuss the court's process and understand what was expected of him, he said, but the court's desire to remain entirely removed from the mediation process stood in the way. Sprague would not say whether he had already met with the parties. He said he did not know whether the parties had any preliminary talks. Sprague said he requested his mediation be uncompensated.
Costopoulos said Eakin welcomed Sprague's appointment. He also said he is still hopeful a resolution can be reached through mediation, and he will "never abandon that hope."
Sprague said the court likely read his letter as an indication that there would be no further mediation. Cognetti confirmed the inference.
"The way I interpret it, there's no mediation going on and there will not be any," Cognetti said.
Cognetti said Monday it appeared clear at Eakin's Jan. 21 pretrial conference that a "more streamlined" approach could benefit the court. A trial could require as many as four days of testimony based on both sides' witness lists and comments made at the Jan. 21 conference.
If the CJD were to accept any stipulations proposed to the court following mediation, Cognetti said in the letter, the parties could submit a proposed resolution, in writing and on the record, for the court to take under advisement. His letter emphasized that the court would not participate in any settlement discussions, "with the exception of requests or motions made in open court and on the record."
Sprague said the court's stance could "nullify any attempt to reach an agreement."
No trial date has yet been set. Judge Jack Panella on Jan. 21 asked both sides to submit briefs on a number of issues presented at the pretrial conference, including the admissibility at trial of emails Eakin received, but did not send, and which the JCB could not prove he opened.
"The court is going ahead on the track they laid down on the 21st," Cognetti said Monday.
Attorneys familiar with the judicial disciplinary process said the appointment of a third-party mediator in such a case is unprecedented.
Sprague, a former president judge of the CJD, said it is not unusual for parties to attempt to reach an agreement and avoid trial, but he had not heard of any cases before the CJD in which a third-party mediator was appointed to speed along the process.
Former Justice William H. Lamb, also a former CJD president judge, said transparency is key to the process. In this case, though, the court, composed of volunteers, was likely looking to cut down on what would be a "tremendously lengthy proceeding," he said.
"We always tried to make sure that our court acted in a very transparent way, because, obviously, the public's trust is something that you strive very hard to achieve," Lamb said.
Sprague's appointment appears to be "an attempt by the Court of Judicial Discipline to see whether there is a middle ground that can be achieved in the situation," he said.
Ethics attorney Ellen Brotman of Griesing Law said she was "baffled" by the appointment of a mediator and could not see what role Sprague would play in the process.
"It appears to me that Justice Eakin has pretty good, experienced attorneys who could negotiate a resolution for him without a mediator," Brotman said.
Samuel C. Stretton, who handles judicial disciplinary matters and testified at Eakin's December suspension hearing, said he was unclear on the role a mediator would play in Eakin's case. He suggested Eakin could agree in mediation to give up the opportunity to become chief justice when Chief Justice Thomas G. Saylor retires.
Multiple attorneys noted Eakin's pension as a likely topic of conversation in any mediation proceedings. Former Justice Seamus P. McCaffery was allowed to retain his pension when he stepped away from the court in 2014 in the midst of the same email scandal that has ensnared Eakin.
"If I'm representing a public official who has a valuable pension at stake, it's certainly a very high priority to protect it," Brotman said. "That risk makes it very uncomfortable to litigate the substantive issues."
Francis J. Puskas II, the JCB's deputy chief counsel, did not return a call for comment.
Ben Seal can be contacted at
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