Deborah Ross Adams, a Wayne County Circuit Court judge, was in divorce proceedings started by her husband, Anthony Adams, in September 2009. After the Wayne Circuit’s family court judges recused themselves from hearing the case, the case was transferred to the Oakland County Circuit’s family division in March 2010 and assigned to Judge Mary Ellen Brennan. Brennan set March 10, 2011 as the mediation deadline and March 21-22, 2011 as the trial date.
In February 2011, attorney Andra Dudley began representing Deborah Ross Adams; an “Exparte[sic] Motion for Entry of Order for Substitution of Counsel” was filed to allow Dudley to substitute for Ross Adams’ former counsel, Janice L. Burns. Although the motion was filed under Burns’ apparent signature, Burns denied signing and said that she never gave Ross Adams permission to sign Burns’ name to the motion.
On March 10, 2011, Ross Adams and her husband reached a settlement; Brennan scheduled a hearing for March 16 to place the divorce settlement terms on the record. On March 15, Ross Adams called Brennan’s office to request an adjournment. Brennan’s clerk, who was familiar with Ross Adams’ voice from other times she had called Brennan’s office during the divorce proceedings, told Ross Adams that she should contact her attorney about requesting an adjournment.
At the March 16 hearing, Brennan and Ross Adams had an exchange, during which Brennan told Ross Adams that she should not contact Brennan’s office directly, but have her attorney do so. Ross Adams made a number of statements, including denying that she called Brennan’s “chambers.” She also stated “I did not call anyone,” but later admitted speaking to one of Brennan’s staff on March 15. Brennan contacted the Judicial Tenure Commission about what had happened during the hearing, but did not file a request for investigation.
On April 7, attorney William M. Brukoff, who was representing Anthony Adams in the divorce, received a fax about the divorce settlement; although the fax purported to be from Dudley, the transmission came from a Wayne County Circuit Court fax machine. At an April 11, 2011 hearing, Brennan granted the judgment of divorce and also released Dudley from her representation of Ross Adams. Brennan also ordered Ross Adams – who did not attend the hearing – to either sign the settlement agreement or appear in court for a show cause hearing on April 14. Ross Adams had refused to sign the agreement, contending that it was not consistent with the settlement she had reached with her ex-husband. On April 26, Dudley sent Ross Adams an e-mail, stating, “If you want to preserve your appellate rights file a motion.”
On May 5, Ross Adams filed a motion to set aside or modify the divorce judgment; she signed Dudley’s name to the motion and related documents, but did not add “with permission” or otherwise indicate that she was signing on Dudley’s behalf. According to Dudley, she did not give Ross Adams permission to sign her name; Dudley said she only learned of the matter when Brukoff called her to discuss the motion. Dudley then e-mailed Ross Adams, stating “I did not receive any contact from you this week and hopefully you did not file any pleadings with my name without me first reviewing them and without my permission.” In reply, Ross Adams stated that she had tried to contact Dudley “to obtain permission to file a quick pleading on my behalf under your name.”
Brukoff and Dudley reported Ross Adams’ conduct to the Judicial Tenure Commission. Following an investigation, the JTC filed a formal complaint against Ross Adams, charging her with uttering and publishing, perjury, and forgery. The Supreme Court appointed a special master who held a five-day hearing in September 2012. The special master concluded that Ross Adams had lied under oath in Brennan’s court and made misrepresentations to the JTC during its investigation, including that she had permission to sign Dudley’s name to the May 5 motion. But the master said there was insufficient evidence that Ross Adams improperly signed Dudley’s name; he cited “confusion, mistrust, and eventual animosity” between the judge and her attorney.
The JTC, after reviewing the master’s report and the evidence, recommended to the Supreme Court that she be suspended without pay for 180 days; the JTC concluded that Ross Adams “knowingly signed another attorney’s name without permission, lied under oath, and made misrepresentations during the course of these proceedings in contravention of” the Michigan Rules of Professional Conduct, the Michigan Court Rules, and the Michigan Code of Judicial Conduct.” Among other matters, the JTC found that Ross Adams “could not possibly believe she had Ms. Dudley’s permission to sign”; Ross Adams said that she “tried … to obtain permission” only after she had already filed the motion under Dudley’s name. Ross Adams’ failure to add “with permission” or her own practice number “is a further tell-tale indication that [Ross Adams] harbored no belief that she had Ms. Dudley’s authorization to sign her name.”
The JTC agreed with the special master that Ross Adams made misrepresentations to the JTC during its investigation, including the number of times she contacted Brennan’s staff. Ross Adams also lied about having permission to sign Dudley’s name, and falsely claimed that she was not told not to contact Brennan’s staff while she was represented by an attorney, the JTC said. Moreover, Ross Adams lied under oath, saying that she “did not call [Judge Brennan’s] staff” when in fact she had, the JTC stated.
Ross Adams challenges the JTC’s findings, arguing in part that she was “prejudiced by the structural error of the JTC” when it charged her with felonies, such as perjury, as the basis for finding that she had violated ethics rules. The JTC lacks authority to charge a judge with felonies or to decide whether a judge has committed one, and Ross Adams was denied due process of law by being forced to defend herself against the felony charges, she maintains.
Ross Adams also argues that the JTC improperly coerced Dudley into breaching the attorney-client privilege, and that Dudley turned over confidential documents and communications without asking Ross Adams to waive the privilege. Both the master and the JTC erred by finding misconduct based on privileged communications, such as the April 26 e-mail in which Dudley advised Ross Adams to file a motion to preserve her appellate rights, Ross Adams contends.
As to the JTC’s finding that she lied under oath at the March 16, 2011 hearing, Ross Adams argues that she never intended to mislead the court. Ross Adams believed that Brennan was accusing her of trying to make an ex parte contact with Brennan herself; Ross Adams attempted to address that accusation by responding, “I didn’t call chambers directly.” She did not deny trying to contact Brennan’s staff to reschedule that hearing. Moreover, Ross Adams was under oath to assent to the terms of the divorce settlement; the exchange between Ross Adams and Brennan took place afterwards, Ross Adams contends. “This exchange, initiated by one judge against a grieving and stunned litigant simply doesn’t arise to the level of perjury.”
Ross Adams also urges the Supreme Court to accept the special master’s finding of insufficient evidence as to the claim that she improperly signed Dudley’s name. She also asks the Court to take into account her record of service as a judge.
In its brief, the JTC responded in part that it had not pressured Dudley, noting that Dudley contacted the JTC only after consulting the State Bar of Michigan’s ethics hotline and an attorney. At the hearing before the special master, Dudley testified that she believed she had a duty to report Ross Adams to the JTC and that she was not violating attorney-client privilege. Moreover, contrary to Ross Adams’ claim, Dudley did not turn over the entire divorce file; the e-mails and letters that Dudley did provide did not fall under the attorney-client privilege because they dealt only with scheduling and administrative matters, the JTC said.