CJP Admonishes Retired Judge for Lack of Disclosure

Wednesday, January 10, 2007

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CJP Admonishes Retired Judge for Lack of Disclosure

By TINA BAY, Staff Writer

Retired San Diego Superior Court Judge Vincent P. DiFiglia violated canons of judicial ethics by failing to disclose on the record his personal relationship with a plaintiff’s attorney and his past employment with the City Attorney’s Office, the Commission on Judicial Performance said yesterday in publicly admonishing him.

The commission focused on DiFiglia’s conduct while presiding over the inverse condemnation and breach of contract case of Border Business Park, Inc. v. City of San Diego from 1999 to 2001.

DiFiglia had worked in the San Diego City Attorney’s Office from 1971 to 1983, but did not disclose this fact on the record. Though he conferred with counsel in chambers after the plaintiff’s lead counsel had filed a request for information about his relationship with the office, the judge failed to comply with his ethical duty to disclose information relevant to the question of disqualification, the CJP concluded.

Additionally, the commission said, DiFiglia did not disclose on the record his long-standing personal relationship with plaintiff’s counsel Vincent Bartolotta, who became associated as co-counsel in April 2000.

The judge had been privately admonished in 1992 for failing to disclose his relationship with Bartolotta and his law partner, from whom he received gifts and the payment of golf tournaments expenses, the commission noted. In addition, the commission said DiFiglia failed to disclose that he had played golf with Bartolotta on numerous occasions at his own expense, socialized with him at bench-bar mixers and dinner meetings for the American Board of Trial Advocates, and attended a Christmas Eve party at Bartolotta’s home.

The two maintained a friendly relationship after the discipline, the commission said, pointing out that while the Border case was in trial before him, DiFiglia escorted a secretary then employed in Bartolotta’s office to a Christmas party—conduct the commission found violated his duty to act in a manner promoting public confidence in the judiciary.

The CJP noted that before the case went to the jury, DiFiglia decided the issue of inverse condemnation liability in the plaintiff’s favor. In 2001, the jury returned a $94.5 million verdict in favor of the plaintiff.

DiFiglia disqualified himself from the case shortly after the verdict, when his prior CJP discipline involving Bartolotta was reported in the press. The Fourth District Court of Appeal last September reversed the judgment on the inverse condemnation claims without reference to the issue of DiFiglia’s relationship with Bartolotta.

Although DiFiglia retired in November 2003 and is not sitting on the Superior Court by assignment, the commission referred to his ongoing private mediation work in San Diego:

“In light of his continued performance of judicial functions, and in order to preserve public confidence in the integrity and impartiality of the judiciary, the commission determined to issue this public admonishment.”

DiFiglia’s attorney, Douglas Butz, told the MetNews his client accepts the commission’s decision and action, but is “disappointed that essentially old news has been brought up again over issues which took place many years ago.”

The judge accepts responsibility for not complying with the technical requirement of making disclosures on the record, Butz said, explaining that DiFiglia “did not think it was necessary” to put them on the record because the information at issue “was well-known” by virtue of oral disclosures he made to counsel during a chambers conference when the case was first assigned to him.

“It is crystal clear that both sides to that case had actual knowledge of Judge DiFiglia’s relationship with both sides,” he asserted. “The city was well aware of Judge DiFiglia’s relationship with one of the plaintiff’s lawyers, and the plaintiffs were well aware of his relationship with the city attorney’s office.”

Butz added that no similar allegations have been made in connection with DiFiglia’s mediation practice.

DiFiglia, 64, was appointed to the bench in 1987 by then-Gov. George Deukmejian.

Admitted to the State Bar in 1971, he received his law degree from the USC School of Law and is a graduate of Dartmouth College.

After serving in the City Attorney’s Office, he was partner in the San Diego firm of Schall, Boudreau &Gore until his judicial appointment.

Commission members Orange Superior Court Judge Frederick P. Horn, Santa Clara Superior Court Judge Risë Jones Pichon, and public members Crystal Lui, Jose Miramontes, Penny Perez, Barbara Schraeger and Lawrence Simi voted to impose a public admonishment.

Commission Chairperson Marshall Grossman and Court of Appeal Presiding Justice Judith D. McConnell of Div. One—a former colleague of DiFiglia on the Superior Court—were recused. Attorney Michael Kahn and public member Patricia Miller did not participate.