Lawyer-Prosecutor Censured for Criticism of Judge in Pending Case

Albany D.A. Censured for Criticism of Judge in a Pending Case
The New York Law Journal by John Caher  -  May 25, 2012

ALBANY, NY - An upstate appellate panel has censured Albany County District Attorney P. David Soares for his "reckless and misleading" criticism of a local judge who had removed him from a case and appointed a special prosecutor.  The Appellate Division, Fourth Department, said in a decision posted yesterday that Soares' public remarks about Albany County Judge Stephen Herrick violated the Rules of Professional Conduct.  It also noted that Soares has twice been privately admonished "for making improper and prejudicial public statements regarding pending criminal matters."  The censure resulted from an e-mail Soares sent reporters in 2010, after Herrick had dismissed an indictment and referred the matter to a special prosecutor.  Herrick removed Soares from the case after the defendants sued the district attorney in federal court alleging unlawful arrest, defamation and other causes of action.  The County Court judge appointed a special prosecutor after finding that Soares then had a "personal, professional and financial stake in the outcome of both the civil and criminal cases."  Herrick was later reversed by the Appellate Division, Third Department, which expressed concern that a "dangerous precedent" would be set if defendants could preclude prosecutors by suing them.

After Herrick removed Soares, the district attorney released the following statement: "Judge Herrick's decision is a get-out-of-jail-free card for every criminal defendant in New York State. His message to defendants is: 'if your DA is being too tough on you, sue him, and you can get a new one.' The Court's decision undermines the criminal justice system and the DAs who represent the interest of the people they serve. We are seeking immediate relief from Judge Herrick's decision and to close this dangerous loophole that he created."  A complaint was lodged with the Third Department, and then transferred to the Fourth Department. The reason for the transfer was not stated. However, the chief attorney for the Third Department's Committee on Professional Standards, Peter Torncello, is a former assistant district attorney who was fired by Soares.  In a decision dated May 9 and posted yesterday, the Fourth Department said Soares violated Rule 8.4 (d) of the Rules of Professional Conduct by engaging in conduct that was prejudicial to the administration of justice.  "Inasmuch as Judge Herrick appointed a special district attorney and granted that prosecutor leave to re-present the dismissed indictment, we conclude that respondent's statement that Judge Herrick's determination constituted a 'get-out-of-jail-free card for every criminal defendant in New York State' was objectively false," the Fourth Department said in an opinion joined by Justices John Centra, Erin Peradotto, Stephen Lindley and Salvatore Martoche. "For the same reasons, we conclude that his statement that Judge Herrick created a 'dangerous loophole' was reckless and misleading."  Soares' communications director, Heather Orth, said in a statement that the district attorney "respects and accepts the Rochester court's decision, for he made a poor choice of words." She also confirmed that Soares had received two letters of admonition for public comments he made in other criminal matters.

Lee Kindlon, an attorney with Kindlon & Shanks in Albany who is challenging Soares for the Democratic nomination this fall, said in an interview that the censure evinces a "lack of respect and professionalism" by the incumbent.  "It is a black eye for the district attorney's office and the criminal justice system in Albany County," Kindlon said. "I know a lot of men and women work very hard every day to promote the interests of criminal justice in Albany County, and Soares is on his own program."  The case that resulted in the censure stemmed from an investigation into the allegedly illegal sale of prescription drugs to Albany County residents by the operators of a Florida pharmacy.  After some of the defendants sued Soares and Herrick removed him from the case, the Third Department returned the matter to the Albany County district attorney and a federal court in Florida dismissed the civil lawsuit.  But the Fourth Department said the "subsequent determinations" were not "particularly relevant to the legal issues in this proceeding."  Orth said the criminal case is going forward.  "The district attorney promised the citizens of Albany County that he would stop the pipeline of illegal prescription drugs into our community and as such will continue to prosecute all illegal drug distributors," Orth said. "The good news is that he has learned a lesson on the need for tempered language regarding court rulings, while the People will have an opportunity for their case to go forward against the illegal distribution of prescription drugs. Therefore, he applauds the Appellate Division's ruling in both Rochester on process and Albany in substance. The rule of law won out in both cases."  John Caher can be contacted at jcaher@alm.com.