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U.S. Judge Faces Ethics Complaint Over Payout by Former Employer (Correct)

Feb. 18, 2021, 9:46 AM; Updated: Feb. 18, 2021, 6:46 PM

A Trump trial court appointee in South Carolina faces an ethics complaint from a judicial watchdog for agreeing to accept over $200,000 from his former employer as part of a separation agreement just before taking the bench.

The complaint centers on a document longtime Charleston County attorney Joseph Dawson signed nine days before his Dec. 16 confirmation by the U.S. Senate to the District of South Carolina. He received his commission on Dec. 22.

Despite the complaint filed with the district this week by Fix the Court, legal scholars said more information was needed to fully assess the agreement with Dawson’s former public employer. They added that ethics rules don’t necessarily prohibit outside or deferred compensation arrangements. But terms of Dawson’s agreement could exceed a cap on outside income and a provision requiring the county to pay him a 1.5% “contingency fee” for his work on the county’s suit against opioid producers also raised eyebrows.

Charleston County provided a copy of the Dawson agreement to Bloomberg Law, but otherwise declined to comment on the terms that Fix the Court said could be read as a severance package at first glance. Dawson didn’t respond to calls to his chambers seeking comment.

‘Services Performed’

In the agreement—first reported by The Post and Courier—the county decided in December to pay Dawson $216,000 for his “institutional and historical knowledge and insight on proceedings related to services performed” for the following year.

Dawson’s salary as a federal judge is roughly half what he made as county attorney, a job he held for two decades.

His judicial nomination materialized in the final months of Donald Trump’s presidency and moved quickly with his home-state senator, Lindsey Graham, heading the Judiciary Committee and Republicans controlling the confirmation timetable and outcome.

There was no information about any future payments from the county in answers Dawson submitted in response to a Judiciary Committee questionnaire, which was filed sometime before his Nov. 18 confirmation hearing. No update to the questionnaire related to the agreement appears on the committee’s website as of Feb. 17. It’s not uncommon for senators to seek additional information or for a nominee to add details in a second filing.

Graham’s office said he was unaware of the agreement until informed by the Post and Courier. The office of Sen. Dick Durbin (D-Ill.), who succeeded Graham as judiciary chair this year, didn’t immediately return a request for comment.

Some Exceptions

Fix the Court asked Chief Judge Roger Gregory of the U.S. Court of Appeals for the Fourth Circuit to look into whether the Dawson agreement violates judicial ethics rules against “outside income” while serving as a judge.

In particular, judges are not allowed to practice law while on the bench, except in certain narrow family situations.

Under the judiciary’s conduct and disability rules, the chief judge will consider the claims in the complaint and may initiate a limited investigation.

The chief judge will then decide whether to dismiss the complaint or appoint a special committee of judges for further consideration.

Judicial scholar Arthur Hellman said more information is needed to assess any ethical implications. But he said if Dawson “renounces the contract, returns the money, and acknowledges that his behavior was improper, the Chief Judge or the Judicial Council might ‘conclude the proceeding’ without imposing any form of discipline.”

Those proceedings are confidential while pending, but a redacted opinion is likely to eventually be posted on the court’s website once it has concluded.

The judicial misconduct process has come under fire after several high-profile cases where judges, including Judge Alex Kozinski and former President Trump’s sister Judge Maryanne Trump Barry, escaped potential discipline by retiring.

NYU law professor Stephen Gillers wasn’t sure the controversy qualified as a judicial ethics matter, and may ultimately be something for South Carolina voters to address. Without more information, he said the case likely would be dismissed, so long as there is some corrective action taken.

Legal Services

Hellman said the point of the prohibition against outside income is to ensure other employment doesn’t interfere with a judge’s duties. The job of a federal judge is a full-time job—"it’s that simple,” Hellman said.

Moreover, the rules specially prohibit judges from providing legal services, except in narrow circumstances. The agreement requires only that Dawson provide “non-legal advice on matters where he possess pertinent knowledge.”

But as Fix the Court noted in its complaint, as a former county attorney, “Dawson’s ‘knowledge and insight on [County] proceedings’ would almost certainly by definition be a request for legal advice.”

Gillers said Dawson can be compensated for time he spends helping the county with “historical facts” about matters he worked on. But he said the use of the term “insight” was a mistake because it “implies more than historical facts.”

He also noted that the amount of compensation was “unusually large,” considering his previous salary.

“It’s doubtful that calls on his institutional memory will take the equivalent of a half year’s rather generous salary,” Gillers said. “But that is not a judicial ethics issue.”

He did, however, note that the amount exceeds the 15% cap on outside compensation while serving as a judge. The $216,000 agreement is nearly 100% of Dawson’s judicial salary.

Another provision that stands out requires the county to pay Dawson a 1.5% “contingency fee” for his work on the county’s suit against opioid producers. Dawson’s fee would be for “work performed” while he was a county employee receiving a salary of $432,0000.

Judges are allowed to receive “deferred compensation,” and Gillers said such a payout plan is “quite common” for judges leaving private practice—but not for those in government service.

Payment of fees often lags behind work, and lawyers who become judges usually have ongoing client matters when they take the bench.

But Fix the Court said such arrangements are “highly unusual for any public servant, let alone one recently elevated to the federal judiciary.”

(Corrected spelling of NYU law professor Stephen Gillers.)

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com; Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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