Probate Judge Violates Ethics Code

Thanks to Barbara Morris for sending in the story!

Hours before releasing a combative order that approved the draining of an 88-year-old widow's life savings, a Maricopa County probate judge sent a draft copy of her ruling to the attorneys who stood to benefit – a violation of the judges' ethics code.

One of those attorneys responded to the March e-mail and even suggested several changes that were incorporated into Pro-Tem Judge Lindsay Ellis' 21-page ruling.

“I could not be happier,” attorney Brenda Church replied, upon getting the proposed order.

I guess not. Church's bill for $333,000 was among nearly $800,000 worth about to be approved by Ellis.

Three other attorneys – Lauren Garner and Jerome Elwell who were working for the Sun Valley Group, and Brian Theut, the old lady's guardian ad litem – also received Ellis' draft ruling. None of them reported Ellis to the Commission on Judicial Conduct or notified the attorneys representing Marie Long and her sisters of the improper “ex-parte” communication. Such contacts are a violation of the Arizona Code of Judicial Conduct.

Presiding Probate Judge Karen O'Connor, who last year twice rejected requests to disqualify Ellis from the case due to bias, has ordered a hearing into the matter, which came to light late last week.

Ellis and the lawyers in on the tête-à-tête couldn't be reached for comment Monday. The attorneys excluded from Ellis' sneak peek -- the ones advocating for the old lady -- were stunned that Ellis would be so blatant in her favoritism.

“The whole justice system is based on making sure there is no appearance of impropriety and it's a fair tribunal and a fair system,” said attorney Pat Gitre, who represents Marie's sisters. “Marie Long never had a fair tribunal and Marie Long never had a chance.”

What Marie Long did have, once upon a time before she entered probate court, was $1.3 million in assets. After a stroke in 2005, she fell under the protective eye of probate, a place where a cozy group of fiduciaries and attorneys are appointed to help vulnerable people but also manage to help themselves to a sizable pile of cash unless a judge stops it.

In Marie's case, no judge stopped it. Over the next four years, Sun Valley, which served as Marie's guardian, and the various probate attorneys collected $900,000 in guardian, care and legal fees until last year, when Marie was tapped out.

Sun Valley and the probate attorneys have contended the bills were high because Marie's sisters interfered in her care and her lawyers peppered the court with motions.

If they peppered the court, perhaps it was because nobody was listening – to them, at least.

Jon Kitchel, the court-appointed attorney for Marie, began begging Ellis to do something in November 2008 when he discovered that hundreds of thousands of dollars in legal and guardian fees were going out the door. Kitchel and Gitre filed motion after motion asking the judge to stop the bleeding before Marie was sucked dry but Ellis didn't do a thing.

In September, they asked O'Connor, the presiding probate judge, to remove Ellis, saying she “has consistently ignored or refused to rule upon many motions and petitions filed on behalf of Marie Long … but at the same time, ruled on expedited motions filed by SVG and Trustee.”

O'Connor found no problem with Ellis' handling of the case and she rapped Kitchel and Gitre for filing a 41-page motion outlining their complaints when the limit is 15 pages.

By the end of the year, Marie was declared indigent and put on the welfare rolls. Still, there was a slim hope that she could recoup some of her funds. Though the money had already been spent, probate rules require that a judge approve the fees. Commissioner Ellis retired at the end of 2009, but she hung on to the case, becoming a pro-tem judge so she could rule on the fees.

On the morning of March 15, a judicial assistant e-mailed Ellis' proposed ruling to the four attorneys representing the trustee, Sun Valley and the attorney serving as Marie's guardian ad litem.

“Good morning,” wrote Robyn Brown, Ellis' former assistant who now works for Presiding Probate Commissioner Rick Nothwehr. “This minute entry will probably be issued today but Commissioner Ellis asked me to send the draft to you.”

Church, who represents the trustee who had control of Marie's money, e-mailed several suggested factual changes and announced her happiness with what Ellis was about to do.

In her fiery ruling, filed the next morning, Ellis approved the fees that put Marie Long into the poorhouse as “reasonable” and basically attacked Kitchel, Gitre and a third attorney, Dan Raynak, saying their “venomous” and “hateful” attacks forced the other side to defend themselves. With Marie's money, of course.

In all, Ellis approved nearly $800,000 from Marie's accounts, rubber stamping about half of the bills so as not to “unduly burden” Sun Valley, Church and Theut with a second hearing. (Another $120,000 in fees are pending before another commissioner.)

Nobody blew the whistle on Ellis' select private preview of her planned ruling. Then suddenly, late last week Church notified everyone involved in the case of the two-month-old exchange.

The revelation has startled some in the probate community, starting with Marie's attorney, who recalled Ellis' decision not to force Sun Valley, Church and the others to defend hundreds of thousands of dollars in fees they charged Marie.

“As though Sun Valley has been the one impoverished by the process and put on welfare and put in a nursing home…,” Kitchel said. “Marie's been put on welfare. She's living in a room that approximately 8 feet by 12 feet. She's the one in a hospital bed where there is barely room for a chair.”

Judges and lawyers were surprised that a judge would break the rule barring communication with one side in a contested case.

“It's a huge rule for judges,” said one judge, who spoke on condition that he not be named. “You're supposed to be the neutral detached magistrate, not favoring one side or another.”

Meantime, probate attorneys outside the clubby set reacted with amazement that probate's extracurricular activity has come to light, just a week before a Supreme Court panel convenes to review probate.

“I've had suspicions for a long time that this was going on. I just have never been able to prove it,” said probate attorney Tom Asimou. “I don't think we need a Supreme Court Commission. I think we need a federal grand jury.”

Editor's note: Roberts' sister, Appellate Court Judge Ann Timmer, is chairing a committee to review Probate Court practices. The Republic is disclosing the relationship to avoid any perception of a conflict of interest.

(Column published May 18, 2010, The Arizona Republic)

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