Panel rebukes ex-judge
Ethics violations 'shock' commission

By Paul A. Long
Post staff reporter

The state Judicial Conduct Commission on Monday issued a stinging rebuke and a public reprimand against former Boone Circuit Judge Jay Bamberger, who has resigned as a senior judge rather than fight allegations of judicial misconduct for his actions in several cases that dealt with hundreds of millions of dollars in damages and attorneys' fees.

The commission, whose work often is done in private, said Bamberger's resignation averted more serious sanctions, including some that might have affected his pension after 22 years as a district and circuit judge in Boone County.

"Judge Bamberger engaged in misconduct in office ... by failing to observe high standards of conduct so that the integrity and independence of the judiciary will be preserved," said the commission's report, released Monday by the Kentucky Supreme Court.

The resignation was effective Feb. 24. The commission began formally investigating Bamberger on Dec. 27.

The order of public reprimand - which the commission said was unanimous, and which Bamberger and his attorney signed - cites five counts in which Bamberger violated judicial ethics.

Three involved a $200 million dollar settlement against the manufacturer of the diet drug fen-phen. A fourth dealt with the class-action lawsuit by victims of sexual abuse against the Diocese of Covington, and the fifth was about a civil case in which Bamberger was a special judge in Pike County.

Bamberger was involved in all of those cases before he retired at the beginning of 2004 and became a senior special judge, a part-time position.

In all of the cases, the commission says, Bamberger allowed his close friendship with Crestview Hills trial consultant Mark Modlin to affect his decisions. Both he and Modlin benefited financially from those decisions, the commission said.

"The actions of Judge Bamberger shock the conscience of the commission," said the order, signed by chairman J. David Boswell.

"If the violations described in this order had been proven at a hearing, the commission would have removed Judge Bamberger from his office as senior status special judge. Since Judge Bamberger has resigned, this public reprimand is the most severe sanction possible."

Bamberger could not be reached for comment Monday - he did not return a phone call. But Modlin flatly denied that their relationship had any impact on Bamberger's decisions.

He said he could cite cases in which his side was on the wrong end of Bamberger's decisions. And, he noted, less than one-tenth of 1 percent of his cases have been before Bamberger.

"I can tell you I have never asked Judge Bamberger for any favors, and he has always, always been nothing but a straight shooter," Modlin said.

Modlin said he has done nothing wrong, despite the findings of the commission.

"I can lie down and go to sleep at night," he said.

Bamberger began his judicial career as a district judge in Boone and Gallatin counties in 1981. Ten years later, he became a circuit judge, and served at the level for about a dozen years. For years, he was the busiest judge in the state, with a caseload more than double that recommended under judicial guidelines.

Lawyers who practiced before Bamberger for decades were saddened by the action take against him.

"It's truly tragic that someone who otherwise had an impressive career had this happen at the end of his career," said E. Andre Busald, a veteran attorney who heads one of the biggest law firms in Boone County.

"I never got a whiff of any misconduct in office. I always thought he was an outstanding judge."

In 2002, the Kentucky Bar Association named Bamberger as one of two trial judges of the year. The award cited his ethics, work habits and courage in deciding cases without fear or favor.

Harry Rankin, a partner with Greenebaum Doll & McDonald, one of the state's biggest law firms, said he has hired Modlin and tried cases with Modlin on the other side. Before Bamberger, he said, whether Modlin was with him or against him seemed to have no impact.

"I do not think that Mark's involvement affected Judge Bamberger's decisions on the legal issues," he said.

Ed Drennen, who ran the public defender's office in Boone County for more than a dozen years, said he never saw any hints of misconduct.

"I always considered him very conscientious and professional in getting the job done," he said of Bamberger.

But the commission cited three cases in which it said Bamberger was not impartial.

The diocese lawsuit: The commission said Bamberger refused to recuse himself despite his close friendship with Modlin, who was a trial consultant for the plaintiffs against the diocese. Bamberger also granted a controversial class-action status to the lawsuit, which the diocese strongly objected to.

"Judge Bamberger resisted disqualification and recused only after review of his refusal to disqualify was pending before the chief justice of Kentucky," the commission said.

The Pike County case: Bamberger was a special judge in the case, in which Modlin also was a trial consultant. Again, he failed to adequately disclose his close friendship and financial partnership with Modlin, the commission said.

Once again, the commission said, he recused himself only after the issue was pending before the chief justice.

The fen-phen case: The complicated lawsuit, now the subject of another lawsuit over the way it was decided, was cited in three counts against Bamberger.

One dealt with his friendship with Modlin, a trial consultant for the plaintiffs. The commission said that partly as a result of Bamberger's actions, Modlin received more than $2 million in compensation, and appointment as the executive director - at a salary of $6,500 per month - of a charitable fund set up by the settlement that Bamberger approved.

Bamberger himself was appointed as a director of the charitable fund after he retired as judge, and his salary was $5,000 per month.

He later resigned that position and returned the money he had been paid for it.

Modlin said his work was with the attorneys, not Bamberger.

"I was hired by the plaintiff's lawyers to assist in my role as a mediator and as a trial consultant," he said. "I did the work on the case, did the mediation, and the case was resolved."

A second count questions Bamberger's decisions in those cases, including his agreement to seal the record against public inquiry.

The commission said Bamberger allowed attorneys to take fees that exceeded payments to those who were injured by the drug. Attorneys fees were as much as $104 million of the $200 million settlement, the commission said.

It also condemned Bamberger's orders setting up the charity, called the Kentucky Fund.

The third count dealt with Bamberger's becoming a paid director of the organization.

It noted that Bamberger ended court oversight of the fund in the days before he retired, so his successor would not have any control over the appointment.

Such actions "may reasonably be perceived to exploit his judicial position," the commission said. They also "gave the appearance of influencing performance of his judicial duties and gave the appearance of impropriety by profiting from his judicial actions."

Bamberger, the commission said, argued that judges often preside in cases in which attorneys or other parties are friends.

"The disturbing events in this case cannot be dismissed so easily," the commission said.

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