Unreported / Non-Citable
Background
Nicholas Vena and his ex-wife retained retired Commissioner Jeannie Lowe through JAMS to preside over their child-custody dispute in San Diego. Commissioner Lowe disclosed in her initial statement that she had a prior “significant professional relationship” with Moore, Schulman & Moore (MSM), the wife’s law firm, and that she would “entertain offers of employment” from them. She stated she would not make further disclosures on those matters.
What Commissioner Lowe did not disclose was that MSM had retained her as a mediator in eight other cases during the pendency of the Vena case. When that relationship eventually came to light, Commissioner Lowe recused herself, and a costly fifteen-day child-custody trial was vacated. Vena then sued MSM and two of its attorneys in the Southern District of California, asserting a federal Section 1983 conspiracy claim and California state-law claims for negligence, willful misconduct, and intentional interference with contractual relations.
The district court granted summary judgment for the law firm on all claims, and Vena appealed to the Ninth Circuit.
The Court’s Holding
The Ninth Circuit affirmed. On the Section 1983 claim, the court held that Vena could not show the law firm was a “state actor” under either the conspiracy or joint-action tests. There was no evidence of an agreement between MSM and Commissioner Lowe to violate Vena’s due process rights. While the court agreed that Commissioner Lowe should have disclosed the other matters under Canon 6D(5)(a) of the California Code of Judicial Ethics, her failure to do so did not support an inference that the law firm conspired with her. The fact that Vena actually fared worse under orders issued by the replacement judge further undercut any conspiracy theory.
The court also found no “substantial coordination” or “significant financial integration” between MSM and Commissioner Lowe sufficient to establish joint action. The mediations were ordinary professional contracts, and the individual MSM attorneys did not even know that other lawyers in their firm had matters before Commissioner Lowe.
On the state-law claims, the court held that MSM had no duty under California law to disclose that it had retained Commissioner Lowe on other matters, or to refrain from doing so. An attorney’s duty of undivided loyalty to the client supersedes any duty to disclose information to an opposing party. The court distinguished a California appellate decision where an attorney gave an undisclosed gift to a temporary judge during proceedings.
Key Takeaways
- A law firm’s business relationship with a private judge — even undisclosed concurrent retentions — does not establish the “agreement” or “joint action” needed for Section 1983 state-actor liability.
- Canon 6D(5)(a) of the California Code of Judicial Ethics places continuing disclosure obligations on the private judge, not the attorneys who retain them.
- Under current California law, an attorney’s duty of loyalty to the client generally supersedes any obligation to disclose information to opposing parties about their relationships with private judges.
- The concurrence warned that private judging organizations like JAMS need “robust procedures” to ensure compliance with judicial disclosure obligations, and that state courts should consider whether attorneys have corresponding duties when they know or should know of a private judge’s ethical lapses.
- Parties selecting private judges through JAMS or similar services should conduct independent due diligence rather than relying solely on the judge’s initial disclosures.
Why It Matters
California leads the nation in the use of private judges — retired judicial officers retained through organizations like JAMS and ADR Services to handle everything from complex commercial disputes to family-law matters. This case highlights a structural vulnerability in that system: when a private judge fails to disclose concurrent business relationships with one side’s law firm, the other party may have no practical remedy against the attorneys who benefited from the arrangement.
The concurrence by Judge Bress, joined by Judge Higginson, is the more consequential part of the decision. It explicitly invites California state courts and governing bodies to consider imposing duties on attorneys who know or should know about a private judge’s ethical obligations. With the proliferation of private judging in California, practitioners should watch for legislative or rule-making responses to this gap. In the meantime, attorneys appearing before private judges should assume that the ethical burden falls entirely on the judge — but that any disclosure failure will likely result in costly do-overs, as it did here when a fifteen-day custody trial was thrown out.