Earlier this year, after Wisconsin Supreme Court Justice David Prosser’s razor-thin reelection victory led to a recount, Prosser hired an attorney named Jim Troupis to represent him in the recount proceedings. Now, less than three months after that recount ended, Troupis is set to argue a campaign finance case brought by various Tea Party groups before Prosser’s court, and Prosser’s former campaign director says that Justice Prosser will hear the case.
As it turns out, Prosser’s participation in this Tea Party case raises very serious ethical questions:
“A lawyer-client relationship is one of the highest fiduciary relationships,” said professor Monroe Freedman, a professor at Hofstra Law School in New York. “The judge has put his trust and confidence in this lawyer in retaining him. The fact that the judge has had this kind of extremely close relationship with this lawyer – a relationship built on dependency and trust – in the recent past is something that might well cause a reasonable person to question the judge’s ability to be impartial.
“Ordinarily a judge listens to each lawyer, giving each lawyer the weight the argument is entitled to without having a thumb on the scale. . . . (This relationship) is one of those thumbs on the scale.”
Another expert on legal ethics, New York University School of Law professor Stephen Gillers, said Prosser shouldn’t hear the case because Troupis’ work was so important to keeping Prosser on the bench and because it occurred so recently. He said legal scholars may differ on the issue, but the argument for recusal is strong.
“I think under the rules on disqualification, Justice Prosser should step aside now,” Gillers said.
Agreeing was Charles Geyh, a professor at the Maurer Law School at Indiana University Bloomington.
“It’s a bad idea” to stay on the case, he said. “The perception is you would act to do your own attorney a good turn.“
Of course, if Prosser does not recuse himself from the Tea Party case, it will hardly be the first time he undermined Wisconsin litigants’ ability to receive justice free from the taint of potential conflicts of interest. Prosser cast the key vote rejecting an ethics rule that would have prevented him and his colleagues from hearing cases involving their major campaign donors. Instead, he enacted an ethics rule written by corporate lobbyists. Those same lobbyists later showed their support for Prosser by raising hundreds of thousands of dollars in “unlimited and undisclosed” funds to keep Prosser on the state supreme court.
Prosser is also the subject of a special prosecutor’s investigation into whether he seized fellow Justice Ann Walsh Bradley by the neck and placed her in a chokehold.