Firm Not Liable for Private Judge’s Disclosure Breakdowns

Tuesday, May 12, 2026

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Ninth Circuit:

Firm Not Liable for Private Judge’s Disclosure Breakdowns

Opinion Says Counsel Accused of Conspiring With Ex-Commissioner, Who Later Recused Herself for Failure to Reveal Other Cases With Outfit, Owed No Duty to Disclose; Concurrence Highlights Pitfalls for Jurists-for-Hire

By Kimber Cooley, associate editor

The Ninth U.S. Circuit Court of Appeals held yesterday that summary judgment was rightly granted to a law firm in an action accusing the office and two of its attorneys of conspiring to obtain the favor of the private judge hired to oversee portions of a marital dissolution case by retaining her as a mediator in multiple other cases.

In a memorandum decision signed by Circuit Judges Jacqueline H. Nguyen and Daniel A. Bress as well as Circuit Judge Stephen A. Higginson of the Fifth U.S. Circuit Court of Appeals, sitting by designation, the court acknowledged that a failure to disclose that the firm had retained the ex-commissioner as a mediator in multiple other cases during the pendency of the divorce proceedings ultimately led to recusal and an order voiding the private judge’s rulings.

However, they upheld the grant of summary judgment in favor of the law firm, saying that the plaintiff had failed to establish the “substantial coordination” required to hold the private defendants liable for alleged due process abuses or that the parties owed a state-law duty to disclose any ongoing contractual relationship between the former commissioner and the firm.

Bress penned a concurring opinion, joined in by Higginson, to highlight “risk areas for retired judges engaging in ‘private judging,’ and the duties of law firms who retain these judges.”

Child-Custody Dispute

The question arose after Nicholas A. Vena sought to hire a private judge to resolve child-custody and support issues that erupted after his now ex-wife filed a petition for marital dissolution in November 2020. The couple shares seven children, six of whom were minors at the time, and they agreed to retain, through JAMS, a privately-compensated temporary judge to avoid delays caused by the COVID-19 pandemic.

They ultimately selected retired San Diego Superior Court Commissioner Jeannie Lowe, who presided over the child-custody trial and ultimately granted Vena’s ex-wife primary physical custody over the minor children in June 2021.

A few months later, Vena’s attorney requested updated disclosures from Lowe, who had previously revealed a “significant professional relationship” with the law firm representing Vena’s ex-spouse, the San Diego-based firm Moore, Schulman & Moore APC (“MSM”), and said she would “entertain offers of employment” in the future.

After Vena moved to disqualify Lowe based on a failure to share that the firm had hired her as a mediator in multiple other cases during the pendency of the child-custody matter, Lowe recused herself. In April 2022, San Diego Superior Court Judge Victor M. Torres voided her orders in the case.

Complaint Filed

On April 1, 2022, Vena filed a complaint against the firm and attorneys Julie Westerman and David S. Schulman, asserting a due process violation under 42 U.S.C. §1983 as well as negligence and other state-law causes of action. In the pleading, he alleged:

“This case arises from improper influence by a…firm on a temporary judge in a marriage dissolution case, rendering the judge both biased and disqualified….Defendants steered a substantial amount of business towards the judge, which was not disclosed…until a year into her appointment term. When the illicit arrangements came to light, the judge recused and the court voided all of her orders….The illicit dealings not only deprived the Plaintiff of the impartial decision-maker that Due Process requires…but also imposed enormous expenses and burdens on him.”

In December 2024, Senior District Court Judge Thomas J. Whelan of the Southern District of California granted summary judgment to the defendants, saying that the plaintiff’s attempt to show a “conspiracy between Defendants and Commissioner Lowe to violate his Fifth Amendment due process rights” was “unavailing,” and that Vena had failed to point to any authority for the proposition that the law firm owed the opposing side a duty of disclosure.

Joint Action Test

Nguyen, Bress, and Higgonson acknowledged that “[a] plaintiff may demonstrate that a private individual was a state actor under ‘the joint action test’ by ‘proving the existence of a conspiracy’ or by showing that the ‘private party was a willful participant in joint action with the State or its agents’ ” but declared that Vena had failed to make such a showing. They opined:

“Although Defendants did not disclose that they had retained Commissioner Lowe as a mediator in eight other cases, that evidence does not suggest an ‘agreement’ with Commissioner Lowe to ignore the law and evidence in issuing rulings in Vena’s ex-wife’s favor.”

The panel added:

“[W]e agree with Vena that Canon 6D(5)(a) of the Code of Judicial Ethics demands more [than the disclosures Lowe originally made]. That Commissioner Lowe should have disclosed the other matters with MSM, however, does not lead to an inference of a conspiracy between her and Defendants.”

Fared Worse

Pointing out that Vena “fared worse under subsequent orders issued by another judge who took over from…Lowe undercuts any claim of conspiracy,” they remarked:

“[I]t cannot be reasonably inferred that Commissioner Lowe issued rulings in favor of Vena’s ex-wife based on her other mediations with MSM—let alone that Defendants were in agreement with Commissioner Lowe to do so….” Addressing the state-law claims, they reasoned:

“Here, Vena contends that Defendants owed him a ‘duty to refrain from extrajudicial actions that would reasonably foreseeably cause’ him harm. In this context, that would be a duty to disclose to Vena that Defendants retained Commissioner Lowe on other matters or a duty to not retain Commissioner Lowe on other matters. Vena does not cite any relevant cases, rules, or statutes to support either duty.”

They declared:

“Although Commissioner Lowe owed Vena a duty to disclose under Canon 6D(5)(a) of the Code of Judicial Ethics,” nothing in California law indicates that Defendants owed Vena a similar duty under these circumstances.”

Bress’ Concurrence

Saying that “this case underscores the importance of private judges abiding by the ethical rules that apply to them,” Bress commented that “the outcome here—an expensive, fifteen-day child-custody trial being vacated due to a judge not adhering to continuing disclosure obligations—is unfortunate for everyone involved and should have been avoided.”

He pointed out:

“There may well be cases in which a lawyer knows or should know of a private judge’s ethical obligations and has a corresponding state-law duty either to disclose a potential breach of the judge’s obligations to the opposing side, or else to refrain from taking actions that foreseeably invite the judge’s non-compliance with her ethical duties.”

However, he asserted:

“The facts of this case do not rise to this level. But with the proliferation of litigants retaining retired judges to resolve their disputes, the subject of potential state-law duties on the part of lawyers is worthy of further consideration by state courts and governing bodies.”

The case is Vena v. Moore, Schulman & Moore APC, 25-383.