Legal ethics expert raises concerns about justice

A legal expert specializing in judicial ethics recently criticized Supreme Court Justice Kris Pickering for publicizing an allegedly illicit offer pitched by her former campaign manager during her tight race for the high court last year.

San Francisco-based attorney Richard Flamm, whose specialty is legal ethics, said judicial candidates should never comment publicly on cases that involve parties who appear before the court.

In this case, that party is eminent domain attorney Laura Fitzsimmons, who Pickering claimed was behind the alleged offer of campaign contributions made to her last fall by the campaign manager, Gary Gray.

Flamm submitted a statement attached to a motion that Fitzsimmons filed earlier this month. Fitzsimmons cited the election-time controversy as one reason Pickering should disqualify herself from an appellate case Fitzsimmons is now handling before the Supreme Court.

In that case, Fitzsimmons represents Pierre Boueri, who was awarded $8.3 million in an eminent domain dispute. The Clark County Department of Aviation appealed the judgment to the high court.

Pickering, Flamm wrote in his statement, was "expressly forbidden" from saying anything in a public forum that would "cause a reasonable person to question her ability to be impartial in hearing this appeal," Flamm wrote. "Yet, that is precisely what she did."

Flamm also noted that Pickering should have known that Fitzsimmons would eventually appear before her.

"Since her charges were made by a candidate for Nevada's highest court ... and stated in an unequivocal manner that made it appear as if they had been proven in a court of law -- then candidate-Pickering either knew or should have known that a large section of the public would believe them," Flamm wrote.

Supreme Court spokesman Bill Gang said Pickering is prohibited from discussing pending cases. Pickering did not return a phone message Friday.

In October 2008, Pickering told KLAS-TV reporter George Knapp that Gray, the former campaign manager, proposed an agreement that she construed as a threat.

She said Gray explained that Fitzsimmons would bundle $200,000 in campaign contributions for her camp if she agreed to recuse herself from Fitzsimmons' cases. If Pickering rejected the offer, Fitzsimmons would give the money to an opponent.

The allegations are still under investigation, but Fitzsimmons has vehemently denied she would ever offer Pickering financial assistance given their rocky relationship. Gray has also denied any wrongdoing.

Reports of the alleged offer surfaced after an Oct. 9, 2008 Review-Journal poll showed Pickering trailing opponent Deborah Schumacher by 9 percentage points.

On Oct. 13, 2008, Pickering, Pickering's husband, Steve Morris, Knapp and an unidentified man were seen by attorney Dominic Gentile dining at Cosmo's Ristorante, Gentile stated in a declaration on Fitzsimmons' behalf.

The next day, Knapp reported the alleged deal and quoted unidentified sources saying Pickering was "aghast" at the offer. Knapp noted at the end of his piece that a spokesman for Pickering's campaign said she would not comment on the matter.

Pickering told the Review-Journal that detectives had been investigating the offer since July 2008, when she first reported Gray to authorities.

After Pickering's story was made public, she aired new television commercials.

"When political insiders tried to extort special treatment from Kris Pickering, she called the police and blew the whistle, triggering an FBI investigation into judicial corruption," a voice over on the ad said. "She stood up to judicial corruption, she'll stand up for you."

By Oct. 31, 2008, a new poll published by the Review-Journal showed Pickering had jumped ahead in the race that she eventually won.

Flamm suggested Pickering used the media and that she blasted Fitzsimmons in order to bounce back in the polls. He said Pickering acted as "judge, jury and executioner" when she conveyed the allegations to the public.

"The issue here is how a reasonable person would feel if this was their own case," Fitzsimmons wrote in her motion to the Supreme Court. "Would that person, knowing the history between us, and the allegations made by her against me, feel comfortable if Justice Pickering was to decide their case if I was their lawyer?"

Stan Hunterton, a Las Vegas attorney representing Fitzsimmons on the matter, said Pickering would violate judicial canons if she refuses to disqualify herself from the case.

Canon 3 states "that a judge should disqualify herself in a proceeding in which her impartiality might reasonably be questioned, including but not limited to instances where the judge has a personal bias or prejudice concerning the party's lawyer."

Law professor Geoffrey Hazard Jr., who said he has been a longtime acquaintance of Pickering and has attested to her integrity in the past, reviewed the circumstances surrounding the relationship between Pickering and Fitzsimmons and also concluded Pickering should disqualify herself.

"Justice Pickering, both before and since her election, has sought to help establish full acceptance of the proper standards," Hazard wrote in an opinion requested by Fitzsimmons. "Her recusal of herself in the present situation is required under the governing legal standards, and would be an exemplary precedent."

Contact reporter Adrienne Packer at apacker@reviewjournal.com or 702-384-8710.