# Matter of Larsen

> Supreme Court of Pennsylvania · October 14, 1992 · 532 Pa. 326

URL: https://www.frixlaw.com/law-library/cases/2278089

## Case

- **Full name:** In the Matter of the Honorable Rolf LARSEN, Associate Justice
- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 14, 1992
- **Citations:** 532 Pa. 326; 616 A.2d 529; 1992 Pa. LEXIS 487
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** McDermott, Zappala, Papadakos, Gappy, Nix, Larsen, Flaherty
- **Cited by:** 68 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by In Re Angeles Roca First Judicial District Philadelphia County, 173 A.3d 1176 (2017).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2278089

## How later opinions describe it (automated extraction)

- explaining that when a person is permitted to appear in opposition to an application to a zoning hearing board and permitted to cross- examine witnesses and present evidence, he or she is a party to those proceedings and is entitled to appeal an adverse decision as an aggrieve…
- applying Baker to hold that an individual who was permitted to appear in opposition to an application by a landowner to the zoning board in Pittsburgh, to cross-examine witnesses, and to present evidence, was a party to those proceedings and was entitled to appeal the board’s …
- holding that the presiding judge had “an obligation not to consider ex parte communications” from Justice Larsen
- noting “[t]he appearance of impropriety raised by the improper ex parte communications” was “exacerbated” when the individual exerting pressure stood in a “position of authority” over the decisionmaker

## Opinion text

532 Pa. 326 (1992)
616 A.2d 529
In the Matter of the Honorable Rolf LARSEN, Associate Justice.
Supreme Court of Pennsylvania.
Argued May 7, 1992.
Decided October 14, 1992.
Robert L. Keuch, Harrisburg, for J.I.R.B.
A. Charles Peruto, Richard A. Sprague, Philadelphia, for respondent.
Before McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.
*327 ORDER
PER CURIAM.
AND NOW, this 14th day of October, 1992, after review of the Record and due consideration of the Briefs and Arguments, [1] the Court accepts the Report of the Judicial Inquiry and Review Board submitted by Judge Joseph M. James, Judge Jess Juliante, Judge John T.J. Kelly, Jr., and Judge Frank J. Montemuro, a copy of which is attached as Appendix I, and the Recommendation contained therein that the Respondent receive a public reprimand, based upon the finding that, notwithstanding the lack of improper motive, the Respondent engaged in an ex parte communication prohibited by Canon 2 of the Code of Judicial Conduct by providing information to a common pleas court judge relating to a matter that was pending before her. Following entry of this Order, an admonition shall be delivered to the Respondent upon exhaustion of any further appeal, and the same shall be docketed and filed in the public record of this matter.
NIX, C.J., and LARSEN, FLAHERTY and McDERMOTT, JJ., did not participate in the consideration or decision of this matter.
PAPADAKOS, J., files a dissenting statement. [See page 489.]
*328 APPENDIX I
REPORT OF THE JIRB
TO THE SUPREME COURT OF PENNSYLVANIA
Report of:
Judge Joseph M. James
Judge Jess Juiliante
Judge John T.J. Kelly, Jr.
Judge Frank J. Montemuro
The instant matter involves five allegations of misconduct levelled against Justice Rolf Larsen of the Pennsylvania Supreme Court. The relevant procedural history may be accurately summarized as follows.
In September of 1987, Judge Eunice Ross of the Allegheny County Court of Common Pleas made a formal complaint against Justice Larsen. Following preliminary investigation under JIRB Rule 1, notice of formal charges was issued to Justice Larsen setting forth two allegations of misconduct. The first charge asserted violations of Pa. Const. Art V, sec. 17(b), and Canons 1, 2, and 3(A) of the Pa.Code of Judicial Conduct with regard to an allegedly improper ex parte communication by Justice Larsen to Judge Eunice Ross relating to a case pending before Judge Ross at the time of the alleged communication. The second charge asserted violations of Pa. Const. Art. V. sec. 17(b), and Canons 1 and 2 of the Pa.Code of Judicial Conduct with regard to his alleged pursuit of an appeal from the grant of variances to a developer for the purpose of coercing an inordinate settlement from the developer, and not with the purpose of enforcing the zoning laws. Justice Larsen has denied both charges.
Proceedings before the JIRB followed with various motions disposed and hearings conducted. On October 3, 1988, Amended Charges were issued alleging three additional charges of misconduct.
*329 The first added charge, Charge III, asserted a violation of Pa. Const., Art. V, sec. 17(b) and Canons 1, 2, and 3(A)(4) of the Pa.Code of Judicial Conduct with regard to an alleged improper ex parte communication by Justice Larsen to Judge Emil Narick of the Allegheny Court of Common Pleas concerning a case pending before Judge Narick at the time of the alleged communication. Charge IV alleged an identical violation with respect to a separate ex parte communication by Justice Larsen to Judge Narick concerning a different case pending before Judge Narick when the alleged communication occurred. The last added charge, Charge V, alleged violation of Pa. Const. Art. V, sec. 17(b) and Canons 1, 2, and 3A(4) by attempting to influence Judge Narick's assignment of then pending cases to particular judges.
On October 11, 1988, by unanimous vote of the six members then sitting, it was further decided that the added charges would be redesignated as having been filed pursuant to JIRB Rule 2, rather than JIRB Rule 8 as originally indicated. All five charges were to be heard ab initio by a six member panel. The full Board as then composed had been reduced from nine members to six members as the result of the recusal of Judge James E. Rowley and Judge Ross, and the resignation of Judge Alex Bonavitacola.
Proceedings were commenced, but then were continued until after January 1, 1989. JIRB members former Justice Bruce W. Kaufman and Mr. James H. Higgins continued to participate in this matter following the expiration of their terms, despite Justice Larsen's objection to this procedure. See Pa. Const. Art. V, sec. 18(b).
New members, Judge John T.J. Kelly, Jr., Judge Charles L. Durham and Judge Jess S. Jiuliante were later appointed to the JIRB, and added to the panel. Thus, the panel eventually presiding in this matter included a full complement of nine members. New proceedings including motions, discovery, and hearings followed. From March 15, 1989 forward, all proceedings were conducted before a full nine member panel. The final hearing at which new evidence was presented in this matter was conducted on June 10, 1989.
*330 Effective April 11, 1990, Board Member Judge Durham resigned. In April 1990, three Rule 9 Reports were issued by remaining Board members.
A short time thereafter, proceedings were stayed pending disposition of a special petition for an order seeking a permanent injunction barring this Board from proceeding based upon alleged procedural irregularities/recusal grounds. Relief was denied by an evenly divided Court. Larsen v. Kaufman [Kaufmann], [525] Pa. [278], [579] A.2d [1302] (1991) [1990] (No. 152 JIRB).
Judge Joseph M. James became a member of the Board and took Judge Durham's place in these proceedings. All transcripts, exhibits and related documents were provided for Judge James' review and analysis, including all three Rule 9 Reports.
Following removal of the Supreme Court's stay, this Board conducted the required Rule 11 Hearing on May 21, 1991. We now issue our Final Report and Recommendation to the Supreme Court.
The record in this case is voluminous. Twenty-one Board Hearings were conducted at which forty witnesses gave testimony. Twenty-four volumes of transcripts were produced containing three thousand five hundred and fourteen pages of testimony. The Board submitted sixty-four exhibits; Justice Larsen submitted another fifty-seven exhibits. The motions and pleadings are likewise numerous, intricate, and voluminous.
This report will proceed in the following manner. First, we will offer introductory remarks regarding the JIRB's fact-finding and credibility determining functions, along with some guiding principles we applied in evaluating the evidence presented. Second, we will review character evidence offered on Justice Larsen's behalf relevant to all five charges. We will then review the evidence, make findings, and discuss charges one and two separately and in turn. We dispose of charges three, four, and five in one brief section. Finally, we discuss *331 permissible sanctions and our recommendation to the Supreme Court in this case.
I. JIRB'S ADVISORY FUNCTION
The Judicial Inquiry and Review Board is a constitutionally created agency, judicial in character, charged with the important function of receiving, investigating, and making disciplinary recommendations to the Supreme Court regarding formal and informal complaints of ethical misconduct by members of the Pennsylvania judiciary. See Pa. Const. Art. V, sec. 18; 42 Pa.C.S.A. §§ 3301 et seq.; see also Matter of Chiovero, 524 Pa. 181, 184 , 570 A.2d 57, 58 (1990) ( per Papadakos; McDermott and Zappala, JJ., join); Matter of XYP, 523 Pa. 411, 416 , 567 A.2d 1036, 1038 (1989); Office of Disciplinary Counsel v. Surrick, 521 Pa. 264, 267-68 , 555 A.2d 883, 885 (1989); First Amendment Coalition v. JIRB, 501 Pa. 129, 131-32 , 460 A.2d 722, 723-24 (1983). Unless and until a majority of the JIRB finds good cause to recommend disciplinary action by the Supreme Court, all proceedings must remain confidential. Pa. Const. Art. V, sec. 18(h); 42 Pa.C.S.A. § 3334; JIRB Rule 20; see also Matter of Chiovero, supra, 570 A.2d at 61 ; id., 570 A.2d at 67 (Nix, C.J., dissenting, Flaherty, J., joins); In re Subpoena of JIRB, 512 Pa. 496 , 517 A.2d 949 (1986); Application of Surrick, 504 Pa. 25 , 470 A.2d 447 (1983); First Amendment Coalition v. JIRB, supra .
Any recommendation of disciplinary action made to the Supreme Court must be accompanied by a certified record of all proceedings on those charges before the JIRB, and a report containing findings of fact and conclusions of law regarding those charges in support of the JIRB's recommendation. JIRB Rule 16. It is customary for any concurring or dissenting members of the JIRB to forward with the report of the JIRB majority a similar minority report explaining the grounds for concurrence or dissent. See Matter of Sylvester, 521 Pa. 300 , 303 & n. 3, 555 A.2d 1202 , 1203 & n. 3 (1989); Matter of Braig, 520 Pa. 409 , 413 & n. 3, 554 A.2d 493 , 495 n. 3 (1989); Matter of Cunningham, 517 Pa. 417 , 423 & n. 2, 538 A.2d 473 , 476 n. 2 (1988); Matter of Dalessandro, 483 Pa. 431 , *332 436, 397 A.2d 743, 745 (1979) (plurality, per curiam, Manderino and Larsen, JJ., join); Matter of Johnson, 483 Pa. 227, 230 , 395 A.2d 1319, 320 (1978).
A JIRB report, whether a majority or minority report, is merely advisory and carries only such weight as our Supreme Court shall find its analysis compels during our Supreme Court's own de novo review of any judicial disciplinary matter properly brought before it. See Pa. Const. Art. V, sec. 18(h). In the past, our Supreme Court has exercised its authority to modify as well as to reject outright, findings, conclusions, and disciplinary recommendations. See Matter of Chiovero, supra ; Matter of Sylvester, supra ; Matter of Braig, supra ; Matter of Cunningham, supra ; Matter of Glancy (I), 515 Pa. 201 , 527 A.2d 997 (1987); Matter of Dalessandro, supra ( per curiam; Manderino and Larsen, JJ., join); Matter of Johnson, supra .
In making findings and drawing conclusions, we keep foremost in mind the burden of proof in disciplinary proceedings. Before any disciplinary action may be taken by our Supreme Court, they must first find that an ethical violation has been established by clear and convincing evidence. See Matter of Chiovero, supra, 570 A.2d at 60 ; Matter of Sylvester, supra ; Matter of Braig, supra ; JIRB v. Snyder, 514 Pa. 142 , 523 A.2d 294 (1987); see also Matter of Delassandro [ Dalessandro ], supra, 397 A.2d at 751 ("it was by no means clear and convincing that the respondent was intentionally exploiting his judicial position"); Matter of Johnson, supra, 395 A.2d at 1325 ("The evidence concerning respondent's manner during the above proceedings was sharply in conflict. . . . The evidence in this regard is not clear and convincing and is insufficient to sustain the imposition of an official reprimand."). Our Supreme Court has repeatedly explained that:
[t]he standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.
*333 Matter of Chiovero, supra, 570 A.2d at 60 ; Matter of Sylvester, supra, 555 A.2d at 1203-04; Matter of Braig, supra, 554 A.2d at 495 ; JIRB v. Snyder, supra, 523 A.2d at 299 .
In order for a witness' testimony or other evidence to support a finding of clear and convincing evidence the witness must be credible and the evidence offered must be based upon distinct personal knowledge of the relevant facts, undecayed by time and untainted by the corrupting influences of bias or suggestion. See generally LaRocca Trust, 411 Pa. 633 , 192 A.2d 409 (1963) (testimony was evasive and evinced both bias and a memory decayed by time); Carlin v. Pa. Power & Light Co., 363 Pa. [543] 405, 70 A.2d [349] 345 (1950) (evidence lacked statements of personal knowledge of critical facts, was neither clear nor precise, and one witness had obvious bias); Alliquipa [Aliquippa] Nat'l Bank v. Harvey, 340 Pa. 223 , 16 A.2d 409 (1940) (evidence was contradictory, biased, and hardly credible, inconsistencies between statements and conduct noted); Matter of Jackson, 302 Pa.Super. 369 , 448 A.2d 1087 (1982) (witnesses lacked personal knowledge of relevant facts).
The effects of conflicts in the evidence or corroboration of particular evidence will vary depending upon the credibility of the individuals involved, the degree of conflict or corroboration, and the importance of the point with respect to which the conflict or corroboration occurs. The existence of a conflict in the evidence with regard to a material fact, by itself, may preclude a finding that a charge has been sustained by clear and convincing evidence. See e.g. Matter of Johnson, supra . On the other hand, there is no mechanistic corroboration requirement; rather, a charge could be sustained on the basis of the uncorroborated testimony of a single credible witness in an appropriate case. Compare In re McDonough, 296 N.W.2d 648, 692 (Minn.1980) ("no mechanistic corroboration requirement is necessary . . . in fact, depending on its source, uncorroborated evidence may be more reliable than that remotely corroborated by a dubious source"), and In re Boyd, 308 So.2d 13, 21 (Fla.1975) ("evidence to sustain a charge of unprofessional conduct against a member of the bar, where in his testimony . . . he has fully and completely denied the *334 asserted wrongful act, must be clear and convincing, and that degree of evidence does not flow from testimony of one witness, unless such witness is corroborated to some extent by either facts or circumstances"). [1]
Likewise, in assessing the evidence, due consideration must be given to any character evidence offered on behalf of the respondent. See Matter of Sylvester, supra . The weight to be given character evidence will vary depending upon the circumstances. Compare Matter of Sylvester, supra ; JIRB v. Snyder, supra, 523 A.2d at 304 (Papadakos, J., concurring and dissenting); and In re Dandridge, 462 Pa. 67, 70 , 337 A.2d 885, 886 (1975). When there is slender evidence to sustain a charge or when the evidence is ambiguous, character evidence may dispel suspicions of impropriety a jaundiced eye might otherwise perceive; on the other hand, when proofs are credible, multiple, and incontrovertible, character evidence will be of little avail except in mitigation of the penalty. Compare Matter of Sylvester, supra ; JIRB v. Snyder, supra ; and In re Dandridge, supra . [2]
In assessing the credibility of witnesses and the weight to be accorded their testimony, the need to identify and discount for the deleterious effects of personal animus and/or bias is obvious. Less clear, but equally, if not more important, is our responsibility to identify and discount for the effects of innocent "fallacies of testimony" which infect and distort the testimony of even the most forthright and well-intended of witnesses.
*335 The venerable trial advocate Francis Wellman cogently observed long ago:
No one can frequent our courts of justice for any length of time without finding himself aghast at the daily spectacle presented by seemingly honest and intelligent men and women who array themselves upon opposite sides of a case and testify under oath to what appears to be absolutely contradictory.
Wellman, The Art of Cross-Examination, at 139-40 (Rev. ed 1904).
We have reached various findings of fact and conclusions of law which implicitly or explicitly reject certain testimony as not credible. In doing so, we emphasize the numerous sources of innocent fallacies of testimony. See generally Wellman, supra, at 139-53. Our rejection of an individual's testimony in whole or in part is not intended to imply perjurious or corrupt motivation. To the contrary, the witnesses in these proceedings appeared generally forthright and sincere despite the various conflicts in their recollections of the relevant events.
We note that we are well aware of the potential for manipulation of the JIRB disciplinary process for personal and/or political motives. Cf. Matter of Chiovero, supra, 570 A.2d at 61 . All proceedings before the JIRB are privileged from liability for defamation, even if allegations are false and made with actual malice. Pa. Const. Art. V, sec. 17[18](h); 42 Pa.C.S.A. § 3332(c); JIRB Rule 21. While statements regarding JIRB proceedings or the substance of allegations made outside JIRB proceedings are not covered by that privilege, [3] sanctions for violations of confidentiality and/or liability for defamation are still quite limited. See First Amendment Coalition v. JIRB, 784 F.2d 467 (3rd Cir.1986); Office of Disciplinary Counsel v. Surrick, supra ; Larsen v. Philadelphia Newspapers, 375 Pa.Super. 66 , 543 A.2d 883 [1181] (1988); cf. Matter of Dalessandro, 483 Pa. 431, 465 , 397 A.2d 743, 760 (1979). Consequently, there is a very real risk *336 that JIRB proceedings may be misused and manipulated for political and/or personal motives entirely unrelated to the maintenance of a just and ethical judiciary. See First Amendment Coalition v. JIRB, 784 F.2d 467, 475-77 (3rd Cir.1986) (collecting authorities); cf. Matter of Chiovero, supra, 570 A.2d at 67 (Nix, C.J.; dissenting, Flaherty, J., joins).
We recognize too, that it is our solemn responsibility to ensure that the authority of the JIRB is exercised carefully so as to promote the independence as well as the integrity of our judiciary. Matter of Chiovero, supra, 570 A.2d at 67 (Nix, C.J., dissenting, Flaherty, J., joins); cf. Matter of XYP, supra . We have kept in mind Justice Hugo Black's ominous warning that unless discipline of the judiciary is carefully controlled, "the hope for an independent judiciary will prove to have been no more than an evanescent dream." Chandler v. Judicial Council, 398 U.S. 74, 143 , 90 S.Ct. 1648, 1683 , 26 L.Ed.2d 100, 141 (1970) (Black, J., dissenting).
The burden of proof in these proceedings is proof by clear and convincing evidence. We therefore restrict our conclusions to whether the alleged misconduct was established by clear and convincing evidence. In this context, the concepts of proof by probable cause, preponderance, reasonable suspicion or mere suspicion are simply not relevant. We are neither authorized nor inclined to offer any opinion as to the degree by which an allegation may have failed of insufficient proof, nor do we offer any opinion as to the ethics of the conduct of the parties beyond that required to determine the specific charges of misconduct presented through proper procedures for review. Cf. Matter of XYP, supra . The provisions of the Code of Judicial Conduct, rather than our personal views of propriety, have been our measure in this matter. Cf. Matter of Chiovero, supra, 570 A.2d at 60-61 .
Finally, we note that though Justice Larsen has raised numerous due process challenges to the manner in which these proceedings were conducted, as well as to the refusal of *337 certain members of the Board to recuse themselves, [4] we offer no opinion on these matters. Our reports to the Supreme Court are solely advisory, we are confident that the Supreme Court will consider Justice Larsen's various allegations in assessing the weight to be given the reports submitted, and take such other actions as it deems appropriate. Cf. Matter of Chiovero, supra, 570 A.2d at 61 ; Matter of Dalessandro, supra, 397 A.2d at 760 (per curiam; Manderino and Larsen, JJ. join).
II. CHARACTER EVIDENCE REGARDING JUSTICE LARSEN
Because the character evidence offered on behalf of Justice Larsen is relevant to our analysis of all five charges, we consider it first and separately from the evidence and findings pertaining separately and solely to each charge raised. Our findings in this regard should be considered to be incorporated by this reference into the discussion of each of the separate charges which follow.
1. Upon graduation from Penn Township (now Penn Hills) High School in 1953, Justice Larsen served on active duty in the United States Army until his honorable discharge in 1956. (Larsen, TR at 2506-07).
2. Justice Larsen earned his law degree from Dickinson School of Law and was admitted to practice in Pennsylvania Courts in 1960. (Larsen, TR at 2506-07).
*338 3. Justice Larsen was a sole-practitioner for 13 years with a concentration in personal injury and domestic relations matters. (Larsen, TR at 2633).
4. Justice Larsen was elected Judge of the Allegheny County Court of Common Pleas in November 1973. He was formally commissioned and took his oath of office in January 1974. (Larsen, TR at 2507).
5. Justice Larsen was elected Associate Justice of the Pennsylvania Supreme Court in November 1977. He was formally commissioned and took his oath of office in January 1978. (Larsen, TR at 2507).
6. From 1964 to 1980, Justice Larsen received, periodically, highly laudatory coverage by the press; however, from 1980 to the present, coverage in major newspapers such as the Pittsburgh Post Gazette and the Philadelphia Inquirer has been almost uniformly negative. Justice Larsen's suit for defamation and related claims against those papers remains pending. (EX R-24; Larsen v. Philadelphia Newspapers, 375 Pa.Super. 66 , 543 A.2d 1181 (1988)).
7. Despite considerable adverse publicity concerning the substance of charges I and II of these proceedings and adverse publicity relating to charges dismissed by the JIRB in previous proceedings, Pennsylvanians voted to retain Justice Larsen for another 10-year term in November 1987. (Larsen, TR at 2507; Ross, TR at 823; Resp. Response to LOI, 10/22/87; EX B-53; EX R-2; Grochot & Gazarik, "Land Sale Scrutinized: FBI Looking Into Zdrale Bankruptcy," Sunday Tribune Review, at A-1, A-10 (April 19, 1987).
8. Testimony of twenty-nine distinguished and wholly credible citizens of this Commonwealth including businessmen, doctors, a member of the clergy, County Commissioners, labor officials, Pennsylvania's present Auditor General, the Dean of Duquesne Law School, private attorneys, law enforcement officers, defense attorneys, District Attorneys, and Pennsylvania's present Attorney General, established Justice Larsen's general reputation and character as an honest, diligent, impartial, *339 caring and intelligent individual and jurist. (Uehlein, TR at 1066-70; Lewis, TR at 1162-73; Cindrich, TR 1174-83; Lightman, TR 1221-30; Zavarella, TR 1319-21; Bascelli, TR 1385-87, McCommons, TR 1387-90; Hafer, TR at 2481-84; Preate, TR at 2485-2505; Mendelson, TR at 2933; EX R-24; EX R-25).
9. Evidence was presented that Justice Larsen, throughout his life, has demonstrated a genuine concern for the harried, the troubled, and downtrodden by personally intervening in attempts to address and resolve the personal and professional problems of Judge Finkelhor, Judge McFalls, and Judge Ross and through his conduct in befriending and supporting Attorney Ashton in his struggle with alcoholism and battles with cancer after his reinstatement to the bar. (Ashton, TR at 190-04; Zavarella, TR at 1332-34; Larsen, TR at 2670-01, 2681-83, 2541-48, 2518, 2595-97).
10. Further evidence of Justice Larsen's lifetime concern and compassion for his fellow man was presented in the form of an editorial printed by the Pittsburgh Post Gazette, on December 23, 1964. After lamenting the unwillingness of members of modern society to come to each other's aid and get involved, the article went on to state:
In view of this recent history of callous indifference to the suffering of one's fellow man, it was most reassuring to read about the Pittsburgh lawyer, Rolf Larsen, who subjected himself to assault rather than tolerate the annoyance of a defenseless woman.
Mr. Larsen intervened and, for his pains, was beaten by a Baltimore visitor subsequently charged by police with drunkenness and assault and battery.
We commend Mr. Larsen for his chivalry in an age where it has all but ceased to exist. He is his brother's keeper and all of us are enriched by his conscience and his courage.
This evidence was supported by a second editorial in the Fall 1987 edition of Juris: The Duquesne Law School News Magazine, which quoted the Pittsburgh Post Gazette editorial verbatim, and went on to state:
*340 We thought it would not be too extravagant to draw on the Post Gazette's comments since it tends to characterize the life and service of Justice Rolf Larsen. Moreover, since the pretext for electing (or retaining) a judicial candidate cannot be measured exclusively by his or her opinions alone — we don't elect opinions to office — the foregoing observations aptly capture the essence of this otherwise enigmatic justice.
(Emphasis added). (EX R-24; EX R-25).
11. Justice Larsen's excellent reputation and high standing in the community both as a caring individual and as a respected jurist was further evidenced by his receipt of numerous honors and awards, including:
Outstanding Jurist Award — Pennsylvania District Attorney's Association, August 7, 1985;
Judicial Excellence Award — Pennsylvania AFL-CIO, December 12, 1986;
Justice Michael A. Musmanno Award — Philadelphia Trial Lawyers Association, July 12, 1986;
Allegheny County Citation of Merit, Allegheny County Board of Commissioners, December 12, 1986;
Humanitarian Award, Careers, Inc., June 16, 1984;
Special Tribute, American Cystic Fibrosis Foundation, (date not specified in the Juris article);
Man of the Year — 1981, Catholic War Veterans, January 23, 1982.
(EX R-24).
12. Justice Larsen's character and reputation as an ethical and competent jurist was further supported by evidence of the endorsement of his retention as Associate Justice of our Supreme Court in 1987, by various highly respected organizations, including:
— Pennsylvania State Democratic Committee
— Pennsylvania Republican State Leadership Committee
— Pennsylvania State Education Association
— Pennsylvania AFL-CIO
*341 — Pennsylvania Mothers Against Drunk Driving
— Pennsylvania Fraternal Order of Police
— Pennsylvania Chiefs of Police Association
— Pennsylvania District Attorney's Association
— Pennsylvania Bar Association
(EX R-24, EX R-25).
13. Justice Larsen's commitment to the improvement of Pennsylvania's justice system, above and beyond his numerous significant opinions for the Supreme Court, was demonstrated by evidence of his initiation of substantial reforms in Allegheny County support payment enforcement, and his development and introduction of innovations such as the One Day/One Trial jury service system, the Client Security Fund, and the Jury Questionnaire for evaluation of trial court judicial performance. (EX R-24).
14. Based upon the foregoing we find that:
Justice Larsen enjoys an excellent reputation for truthfulness, integrity and ethical conduct as an individual, and as a jurist;
Justice Larsen is respected as a caring and compassionate individual; and finally,
Justice Larsen is further respected as a well-qualified, diligent, and effective jurist dedicated to the maintenance and improvement of Pennsylvania's justice system.
Discussion
Our findings regarding Justice Larsen's character evidence are a principle point of divergence between this report and the report filed by the Honorable Bruce W. Kauffman, James H. Higgins, Lawrence T. Hoyle, Jr., Esq., and Mrs. Antonia L. Scarlata. The later report briefly notes that character evidence was presented, makes no finding regarding the evidence, and then drops the character evidence issue entirely without ever considering the weight to which Justice Larsen's excellent character was entitled in accessing the numerous ambiguities and conflicts in the evidence presented on each of the charges presented.
*342 The copious evidence of Justice Larsen's excellent character for truthfulness, integrity, compassion, and competence was both compelling and entirely uncontradicted. Significantly, the failure to give the character evidence its proper weight in analyzing the evidence is in direct contravention of unanimous, clear, and binding Supreme Court precedent. Matter of Sylvester, supra ( per Stout, J.; Nix, C.J., and Flaherty, McDermott, Zappala, and Papadakos, JJ., join).
This distinction between our Reports is critical. The weight given to the character evidence permeates the analysis in each Report. While we note this difference in particular instances, infra, we imply the distinction with regard to all conflicts and ambiguities in the evidence which relate to Justice Larsen's conduct, or which involved testimony by Justice Larsen.
III. EVIDENCE AND FINDINGS — CHARGE I
The first charge involves an allegation of an attempt by Justice Larsen to influence Judge Ross by an ex parte conversation relating to the Estate of Francis case, which was pending before Judge Ross at the time of the conversation at issue.
It is suggested that Justice Larsen was attempting to aid Attorney Robert Lampl and his counsel, Attorney James Ashton, in connection with a claim for the return of $17,000 by Attorney Lampl to the Francis Estate. It is further suggested that Justice Larsen was motivated to attempt to influence Judge Ross on Attorney Lampl's behalf as the result of Attorney Ashton's involvement in a real estate transaction in which Justice Larsen and his daughter, Nina Larsen, purchased undeveloped land from Mr. Nikolai Zdrale in Fairfield Township, Westmoreland County.
We shall begin with initial findings regarding the relevant testimony provided, and then conclude with ultimate findings of fact based upon our assessment of the credibility and *343 weight to be assigned to the testimony and evidence submitted.
Our ultimate findings may be summarized as follows:
— there was no need for Justice Larsen to attempt to influence Judge Ross on Attorney Lampl's behalf;
— there was no motive for Justice Larsen to attempt to influence Judge Ross on Attorney Lampl's behalf;
— Justice Larsen did not attempt to influence Judge Ross on Attorney Lampl's behalf; but
— Justice Larsen, without apparent improper motive, improperly provided Judge Ross with a prohibited ex parte tip concerning possible bankruptcy fraud in a case over which Judge Ross was then presiding.
A. BACKGROUND REGARDING ESTATE OF FRANCIS
1. Eunice Ross is a commissioned judge of the Allegheny Court of Common Pleas, and has served in that capacity since her initial appointment in 1972. (Ross, TR at 795-96).
2. Attorney Robert Lampl is a sole practitioner practicing in the greater Pittsburgh area with a concentration on bankruptcy and debtor/creditor cases. (Lampl, TR at 31-32).
3. Attorney Ashton is an attorney who was readmitted to practice in Pennsylvania and federal courts in 1984 following his substantial rehabilitation and recovery from problems related to alcoholism which led to his original disbarment for felony offenses related to his substance abuse. Attorney Ashton had offices in the same building as Attorney Lampl. They referred cases to each other, and occasionally acted as co-counsel. Attorney Ashton represented Attorney Lampl in the Estate of Francis case. (Ashton, TR at 180-01, 230; Lampl, TR at 55).
4. Attorney Lampl represented Mr. Homer Douglas Francis in Bankruptcy Court; but, while bankruptcy proceedings were still pending, Mr. Francis died. (Lampl, TR at 55-56; EX B-5; EX B-9; EX B-10, EX B-62).
*344 5. The matter of Estate of Francis was opened in Allegheny Court of Common Pleas on behalf of the estate of Mr. Francis, and Judge Ross was assigned to preside over the case. (Lampl, TR 57-58).
6. Attorney Jon Botula and Ms. Barbra Vanyo were appointed co-administrators on September 29, 1982. They were subsequently removed as co-administrators by order of court. (EX B-5).
7. In January 1986, the administratrix of the Francis Estate filed a motion to show cause why Attorney Lampl should not be ordered to return approximately $17,500 he had dispersed for Mr. Francis as his attorney in the bankruptcy matter prior to Mr. Francis' death; Judge Ross entered an order directing Attorney Lampl to show cause as requested. (EX B-5).
8. Attorney Ashton represented Attorney Lampl in the proceedings before Judge Ross.
9. On May 30, 1986, Justice Larsen met with Judge Ross and informed her that two informants who wished to remain anonymous had told him that Jon Botula had received the money in the Estate of Francis case, and used the money to buy a condominium in Florida.
10. On April 19, 1987, an article was published which suggested that Justice Larsen, Attorney Ashton, and Attorney Lampl had been involved in a questionable land deal in May, 1986. This article came to Judge Ross' attention and caused her to reconsider the nature and import of Justice Larsen's May 30, 1986 tip. When that reconsideration occurred is unclear, though it seems probable that it did not occur until after the JIRB meeting on May 18, 1987, and after a court hearing in the Estate of Francis case on July 7, 1987, as Judge Ross' conduct on both occasions indicated an absence of any well-formed suspicion of impropriety concerning the May 30, 1986 tip.
11. On July 7, 1987, Judge Ross indicated at a hearing in the Estate of Francis case that she was satisfied with the responses and documentation submitted on Attorney Lampl's behalf *345 and would consider that aspect of the case closed if the attorney for the estate had no objections. The attorney for the estate raised limited objections to the entitlement of a few recipients of certain checks, and so a final hearing on the matter was scheduled for October 27, 1987. (EX R-5).
12. On October 8, 1987, one month before Justice Larsen's scheduled retention election, an article appeared on the front page of the Pittsburgh Post Gazette by Bill Moushey discussing the May 30, 1986 conversation between Justice Larsen and Judge Ross, and the Zdrale land deal. The article suggested that Justice Larsen had specifically attempted to influence Judge Ross on behalf of Attorney Lampl and Attorney Ashton in the Estate of Francis case, and that Attorney Ashton and Attorney Lampl had been involved in Justice Larsen's questionable and very favorable land purchase from Mr. Zdrale at about the same time. The article indicated that Justice Larsen was suspected of impropriety and that Judge Ross had reported the matter to the Justice Department and to "at least one official of state government." The source of the disclosures was not revealed in the article. ( See Moushey, "Larsen asked relief for lawyers," Pittsburgh Post Gazette at 1 (October 8, 1987)).
13. Attorney Lampl testified that he was told by Mr. Moushey that his principle source for the article was a member of Judge Ross' staff. (Lampl, TR at 90, 92 & 133). Mr. Moushey declined to confirm or deny Attorney Lampl's assertions. (Moushy, TR at 1145-46, 1657-85).
14. At the hearing before this Board, Judge Ross denied having anything to do with the Moushey article, or knowing how Mr. Moushey received information concerning Justice Larsen's conversation with her or her reports of the matter to state and federal authorities. Judge Ross noted various significant inaccuracies in the article, including the assertion that Justice Larsen had mentioned Attorney Ashton and Attorney Lampl in the May 30, 1986 meeting, which even she denies. She also noted that only $500,000 rather than $2,000,000 dollars (as indicated in the article) was suspected to have been *346 improperly taken from the Francis estate. (Ross, TR at 865-67).
15. Following publication of the Moushey article, Attorney Ashton moved to have Judge Ross recuse herself due to the ex parte contacts suggested in the article. In denying the motion, Judge Ross stated:
The Petition for recusal on its face fails to allege any facts which would indicate that this Court is biased or prejudiced or not impartial toward Mr. Lampl.
The Court has no control over what newspaper writers write about a public record. The opinion expressed in the article was the opinion of the writer of the article. The article indicated that this Court, and properly so, would not comment about that case nor about the allegations concerning Justice Larsen. The court is well aware, under the Canons of Judicial Ethics, the court may not, ever, comment to any newspaper reporter about pending litigation and certainly Homer Douglas Francis litigation. This Court has been careful to preserve the rights of all parties who appeared before it. I am sure that if the court had not been so impartial, we would have concluded these matters a long time ago. Your motion will be denied Mr. Ashton.
(Lampl, TR at 92, 153-54; EX R-3, at 19-20; EX R-5).
16. Judge Ross' February 29, 1988 opinion evinces a profound change for the worse in her disposition toward Attorney Lampl's conduct in the Estate of Francis case from that which she had expressed at the July 7, 1987 hearing. Her opinion provides in pertinent part:
Respondent never disclosed initial fees to the bankruptcy court nor did he seek or obtain approval of subsequent fee payments (two of which were received after decedent's death). He is unable, because his records no longer exist, to testify as to services rendered or time spent or expenses incurred with the specificity and detail required by Rule 2016 of the bankruptcy court. The dismissal of the proceedings on March 30, 1986, by that court does not constitute an *347 approval of the fees nor have the creditors ratified or approved them and certainly the deceased debtor could not.
Respondent failed reasonably to supervise or monitor the debtor's use of estate funds, compounding the hemorrhage of assets from the estate. His actions raise no equity in favor of permitting him to retain any part of the fees paid over to him which were the subject of citation and petition.
Respondent was at least negligent in his failure to ensure that the debtor filed monthly financial statements or a plan of arrangement. He put estate funds at risk by his devious purchase of the Malley estate judgment followed by two questionable sales from which a profit was reaped, part of which came back to the instant estate in addition to the original loan amount. He is fortunate this estate lost nothing. Whether the Malley estate suffered is not for this Court to decide. Respondent's loose supervision made it possible for thousands of dollars of estate money to be frittered away in payment for luxury or non-estate items bearing no relationship to decedent's business and its debts.
Under Disciplinary Rule 6-101 A(3) a lawyer is required not to neglect matter entrusted to him. This, of course, applies to practice in the state courts of Pennsylvania and is cited in a cautionary fashion, as a makeweight in sustaining the surcharge already imposed by reason of the failure to comply with bankruptcy statute and rules.
Respondent, Robert O. Lampl, Esq., will be required to disgorge all counsel fees in the amount of $3500 paid to him in connection with the Low-Vol Fuels bankruptcy proceedings. The petition and citation will be dismissed as to the $10,000 Malley loan and the two $2000 checks paid to Ford Motor Credit Company. The $1000 fee retained from the Fayette realty sales was not the subject of petition and citation and will at this time not be surcharged.
Any claim for unpaid fees will be denied.
(Emphasis added). (EX B-9 at 9-10).
17. Attorney Lampl's appeal of the February 29, 1988 opinion and order, along with the denial of the October 26, 1987 recusal motion was quashed as untimely. The Superior Court *348 did not address the merits of the recusal motion or the order. (EX B-62; Ex R-18).
18. On July 29, 1988, Attorney Lampl filed a motion for reconsideration of the February 29, 1988 order expanding upon its grounds for recusal and specifically requesting that a second judge rule on the recusal motion. On August 8, 1988, Judge Ross denied the motion for reconsideration. (EX R-4; EX R-16).
19. On August 18, 1988, Attorney Lampl filed exceptions to the August 8, 1988 order. On August 19, 1988, Judge Ross entered an order dismissing the exceptions. (EX R-17).
20. On December 2, 1988, Attorney Lampl's appeal from the August 8, 1988 and August 19, 1988 order was quashed, again on procedural grounds. (EX. B-62).
21. To date, no one but Judge Ross has passed on the merits of Attorney Lampl's motion to have Judge Ross recuse herself on the basis of her acknowledged ex parte communications with Judge Cosetti, Judge Markovitz, and Justice Larsen, relating to the Estate of Francis case while it was pending before her. We note that her acknowledged discussions with Attorney Vaira and U.S. Attorney Johnson also involved ex parte discussions of the Estate of Francis case.
22. Attorney Lampl and Attorney Ashton both denied ever speaking to Justice Larsen about the Estate of Francis case. Justice Larsen denies having spoken with Attorney Lampl or Attorney Ashton regarding the Estate of Francis case. (Ashton, TR at 245; Lampl, TR at 72; Larsen, TR at 2520, 2552).
23. Neither Attorney Lampl, nor Attorney Ashton, nor Judge Ross found anything in the rule to show cause which would demonstrate a need or motive for Justice Larsen (or anyone else) to intervene on Attorney Lampl's behalf in the Estate of Francis case. (Ross, TR at 936-37; Lampl, TR at 75; Ashton, TR at 246).
24. Justice Larsen denies intervening with Judge Ross on behalf of Attorney Lampl or Attorney Ashton, in connection with the Estate of Francis case. (Larsen, TR at 2545-47, 2555, 2738-39).
25. Based upon the foregoing, we find that:
*349 — there was no need for Justice Larsen to attempt to influence Judge Ross on Attorney Lampl's behalf in the Estate of Francis case.
— Justice Larsen did not intervene on Attorney Lampl's behalf in the Estate of Francis case.
B. FAIRFIELD TOWNSHIP LAND PURCHASE
1. In September 1971, Mr. Nikolai Zdrale purchased a 34.8-35.9 acre tract of undeveloped land in Fairfield Township, Westmoreland County. (Zdrale, TR at 1239; Smith TR at 1604).
2. For seven years prior to the fall of 1985, Mr. Zdrale had tried to sell the property. No asking price was set; all offers were to be entertained. It was advertised for sale and listed with a couple of realtors, however, no offers were received. (Zdrale, TR at 1239-40, 1291, and 1303).
3. There were several substantial hindrances identified by Mr. Zdrale, Attorney Lampl, Attorney Ashton, Justice Larsen, and expert real estate appraisers Daniel Smith and Glen Ray, which would drive away prospective buyers and/or reduce any offer for the property:
a) The property was remote undeveloped land, with no available utilities except electricity, which was accessible only by unpaved roads in a Township with no local police protection, no fire protection, and no zoning code. (Lampl, TR at 110-13; Smith, TR at 1619-20; Ray, TR at 506-07; Larsen, TR at 2530).
b) Man-made lakes located on the property and covering approximately one-third of the total acreage of the property were held by earthen dams which were in a state of disrepair; trees, shrubs, and especially weeping willows growing on and near the face of the dams severely threatened its structural integrity; the dam was already suffering leakage and heavy overflow and was in violation of Pennsylvania Department of Environmental Resource regulations. *350 The lake and dams were liabilities rather than assets in that condition, and could cost between $20,000 and $30,000 to repair, which is more than it would cost to install such lakes originally. There would also be an extremely high maintenance cost for such lakes. (Zdrale, TR at 1240-41; Smith, TR 1600-17, 2313, 2325).
c) The property was heavily encumbered with liens. When it was first offered for sale it was encumbered with over $700,000 in liens. Attorney Ashton indicated in November 1985 that the property was then subject to approximately $300,000 in liens. In February 1986, when Justice Larsen purchased the property, he took subject to over $180,000 in liens for liquidated claims as well as subject to indeterminate liens for any judgment which might eventually be entered against Mr. Zdrale in five then pending law suits. The property was at all times involved subject to liens far in excess of the value of the property. No money could be borrowed on the property in those circumstances. (Zdrale, TR at 1239, 1243); Ashton, TR at 204-06; Larsen, TR at 2523; EX B-72).
d) Mr. Zdrale's only chances of extinguishing the liens and thereby clearing title to the property were the possible sale of a landfill in which he had a substantial non-voting interest, and an anti-trust suit he was prosecuting as plaintiff. When Justice Larsen's purchase was being negotiated, Attorney Ashton, who represented Mr. Zdrale, estimated Mr. Zdrale's chances of extinguishing the liens as one in ten. Mr. Zdrale was even less optimistic in this regard placing his chances at zero. (Ashton, TR at 213; Larsen, TR at 2525; Zdrale, TR at 1244).
e) Between 1983 and 1986, a considerable number of arson fires had occurred in the area around the property, with several arson fires involving second homes of absentee owners. The threat of such arson has a depressing effect on property values. (Lampl, TR at 110; Ashton, TR at 203; Ray, TR at 500; Smith, TR at 1619; Larsen, TR at 2530).
f) The Fairfield Township area is a depressed area, which has a negative effect on property values generally. (Smith, TR at 1621).
*351 4. Although the precise value of the property unencumbered by liens is contested, all agree that it was worth only a small fraction of the $180,000 value Mr. Zdrale had placed on the property in the bankruptcy papers he filed:
a) Justice Larsen testified that after checking with various real estate agents in the area, he had learned that the asking price for land in that general area was between $400 and $1,000 an acre or between $14,000 and $35,000 for an undeveloped 35 acre parcel. (Larsen, TR at 2526).
b) Attorney Ashton received a rough opinion from land developer Alan Paterson that unencumbered, the Zdrale property could be worth no more than $30,000. The record does not disclose whether Mr. Paterson inspected the property or was aware of the condition of the dams. (Ashton, TR at 203).
c) Mr. Smith, a well-qualified real estate appraiser, set the value of the property (if unencumbered by liens) at $21,000-$24,000, without discounting for the expense of repairing the dams or removing the lakes. His detailed testimony was supplemented by a detailed appraisal report which is included in the record. (Smith, TR 1617, 2325, EX R-33).
d) Glen Ray, the appraiser selected by the Board, set the value of the property at $42,000. In his testimony he indicated that the lakes significantly enhanced the value of the property and that $22,400 of the total value was attributable to the lakes. He noted that when he visited the property in January of 1988, he saw nothing wrong with the dams. Mr. Ray filed a brief report in support of his appraisal. (Ray, TR 490-510; EX B-22).
5. We find that each of the appraisals is within a range of reasonable variance given the subjective nature of expert real estate appraisals.
6. We note that Mr. Ray's testimony indicated a more cursory inspection of the property and especially of the dams. *352 We further note that the lakes would have been frozen in Western Pennsylvania in January when Mr. Ray conducted his on-site appraisal, making careful inspection of the dams difficult, if not impossible. But for the material difference in their treatment of the lakes as an asset or as a liability, both Mr. Smith and Mr. Ray appear to agree on a base value in the $21,000 to $42,000 range for the Zdrale property, if unencumbered by liens, and if the dams were not in disrepair.
7. We note that there was some limited potential for latent bias on Mr. Ray's part against Justice Larsen as the result of Mr. Ray's unsuccessful attempt to sell Justice Larsen a 52 acre parcel of undeveloped land in Cook Township, Westmoreland County in 1983, for an asking price of $8,000. Disagreement over price and Mr. Ray's commission impeded the deal. We do not consider this arguable potential for bias to be material to our analysis. Interestingly, however, that property was sold in November 1985 for $70,000, demonstrating both the volatile shifts which occur in the value of undeveloped land, and the speculative nature of investments in such land. (Ray, TR at 509-10).
8. In September or October of 1985, Attorney Ashton began representing Mr. Zdrale in an anti-trust matter Mr. Zdrale was pursuing as plaintiff. (Ashton, TR at 181).
9. Attorney Ashton became aware of Mr. Zdrale's critical financial condition and referred him to Attorney Lampl who thereafter represented Mr. Zdrale in his business bankruptcy. Attorney Ashton was also co-counsel of record in the bankruptcy matter and appeared with Attorney Lampl at some of the hearings, though Attorney Lampl was primarily responsible for the bankruptcy case and Attorney Ashton was not experienced in bankruptcy matters. (Ashton, TR at 181; Lampl, TR at 49-51; EX B-1; EX B-4).
10. During his representation of Mr. Zdrale in the anti-trust matter, Attorney Ashton became aware of Mr. Zdrale's desire to sell his Fairfield Township property. (Ashton, TR at 199; Zdrale, TR at 1291).
*353 11. Attorney Ashton had been disbarred in the early 1970's as the result of problems related to his alcoholism. In 1984, Attorney Ashton was readmitted to the Pennsylvania and federal bars following his substantial rehabilitation. (Ashton, TR 180, 192).
12. Following his reinstatement, Attorney Ashton met Justice Larsen for the first time at a social gathering; they discussed Attorney Ashton's struggle against alcoholism and his efforts to renew his practice. Justice Larsen became a concerned and supportive friend, and helped Attorney Ashton in his continued struggle with alcoholism as well as through subsequent battles with cancer which twice required surgery. Justice Larsen informed Attorney Ashton early in their friendship that he would recuse himself in any matter involving Attorney Ashton which came before him. (Ashton, TR at 193, 246, 285-86; Larsen, TR at 2518-19).
13. Under the Pennsylvania Code of Judicial Conduct, a Judge or Justice's opportunities for financial investment are severely restricted. Real estate investment is one of the few financial activities specifically authorized by the Code. Pa. Code of Judicial Conduct Canon 5 ( see especially Canon 5(C)(2)). Thus, real estate as an investment opportunity has unique value to judges which it would not have to others who may choose freely from a wide array of investment opportunities forbidden to judges.
14. Justice Larsen had for several years been looking to acquire some undeveloped rural land. His daughter and secretary confirmed this fact. It was also confirmed by the real estate appraiser selected by the Board, Mr. Ray. Attorney Ashton had become aware of Justice Larsen's general interest in purchasing undeveloped rural land as the result of various social conversations with Justice Larsen. (Ashton, TR at 190, 204, 261-61; Ray, TR at 508-09; N. Larsen, TR at 1390; Roberts, TR at 1414-15; Larsen TR at 2523-24).
15. Sometime in November 1985, Attorney Ashton had a chance meeting with Justice Larsen in front of Justice Larsen's *354 office at the Grant Building in Pittsburgh during which he mentioned to Justice Larsen the availability of the Zdrale property. Attorney Ashton described the property favorably, but noted the speculative nature of any purchase in light of the considerable outstanding liens. Justice Larsen indicated interest, and it was agreed that Attorney Ashton would obtain pictures for Justice Larsen to review. (Ashton, TR at 204-06; Larsen, TR at 2523-25).
16. Justice Larsen reviewed the five sequential photographs forwarded by Attorney Ashton, and was sufficiently interested to walk the property with Attorney Ashton sometime between Thanksgiving and Christmas in 1985. (Ashton, TR at 205-06; Larsen, TR at 2525-27).
17. In light of the drawbacks noted in finding 3, and especially the one in ten chance of ever receiving clear title to the property, Justice Larsen settled on an offer of $5,000.00. Justice Larsen's method of arriving at this offer price was to take the highest per acre asking price in the area, add $15,000 for the lakes (which he apparently considered assets, not having Mr. Smith's expert assessment of the state of disrepair of the dams at that time), and divide by 10, in light of the one in ten chance of gaining title. (Larsen, TR at 2526).
18. As the result of his receipt of a $30,000 rough appraisal value from a developer for the property if unencumbered and notice of a possible deal in the works for the landfill, Attorney Ashton recommended to Mr. Zdrale that he reject Justice Larsen's offer. (Ashton, TR at 203, 210-11; Zdrale TR at 1258-59).
19. Mr. Zdrale nonetheless accepted the offer. He was ill, destitute, and pessimistic about his chances for economic recovery. He had no control over the landfill deal, and no meaningful ( i.e. reasonably binding) options agreements had yet been signed. The $5,000.00 offer was the only offer for the Fairfield Township property he received despite having tried to sell the property for over seven years. The $5,000 offer was his only certain source of cash for the foreseeable future, and so in December 1985 Mr. Zdrale indicated his acceptance of Justice Larsen's offer. He also indicated that *355 despite his improved prospects in late January and early February after the first non-binding option agreement on the landfill sale was made, he did not want to go back on the gentlemen's agreement reached in December when prospects were gloomier; he simply did not want to go back on his word. Finally, even after it became apparent that the liens would be paid off, Mr. Zdrale indicated that he still considered the $5,000 price fair, because of the high cost he expected to be necessary to repair the dams on the property. (Zdrale, TR at 1239, 1241, 1244-45, 1258-59; Lampl, TR at 106-07, 114-16).
20. In late January 1986, Justice Larsen and his daughter signed the draft agreement prepared by Attorney Ashton. The agreement listed all encumbrances, including several business liens. (Ashton, TR at 197-98, 209-210; EX B-7A).
21. In February, the landfill deal looked promising and Attorney Lampl felt that even if current negotiations did not succeed, a deal on similar terms could be completed in the near future. Attorney Ashton advised Mr. Zdrale not to finalize his land deal with Justice Larsen, but Mr. Zdrale went ahead with it against counsel's advice. (Ashton, TR at 210-13, 263-64; Zdrale, TR at 1258-59; Lampl, TR at 51-52, 135-138).
22. On February 20, 1986, Justice Larsen's secretary, Mrs. Roberts, drafted a check for $5,000 to Mr. Zdrale to finalize the agreement. The transfer of the encumbered deed from Mr. Zdrale to Justice Larsen and his daughter was made the same day. (Roberts, TR at 1415; EX B-44).
23 Mr. Zdrale met Justice Larsen after the sale was completed, and did not know until that time that he was a Justice of the Pennsylvania Supreme Court. Mr. Zdrale spoke with Justice Larsen only once, when he showed him the property boundaries after the sale. (Zdrale, TR at 1241-42).
24. Three months after Justice Larsen purchased the Zdrale property, the sale of the landfill in which Mr. Zdrale was interested was finalized. Mr. Zdrale eventually paid all creditors 100% of debts owed, including lien holders on the Zdrale *356 property sold to Justice Larsen. Justice Larsen and his daughter then received clear title to the land purchased from Mr. Zdrale. Mr. Zdrale still realized over $400,000 from the landfill sale for himself. Lampl, TR at 122-03; Ashton, TR at 223; EX B-1).
25. Attorney Lampl represented Mr. Zdrale in his Chapter 11 business reorganization/bankruptcy matter during this time period. Because of various business liens, the Fairfield Township property was part of the Zdrale business bankruptcy estate. Attorney Ashton mistakenly assumed that because the property was held by Mr. Zdrale personally it would not be involved in a Chapter 11, business reorganization/bankruptcy matter. In hindsight, Attorney Ashton acknowledged that he should have sought approval of the sale of the Zdrale property from the Bankruptcy Court as the result of the various business liens recorded against it. No challenges to the sale were raised in the bankruptcy proceedings, however, in light of the contemporaneous landfill deal, and the subsequent extinguishment of all creditors' claims by payment in full.
26. There is no evidence to suggest that anyone involved became aware of Attorney Ashton's error until it had already become moot.
27. Based upon the foregoing, we find that:
— Attorney Ashton's first discussion of the Zdrale property with Justice Larsen occurred approximately two to three months before a rule to show cause was ever issued to Attorney Lampl in Estate of Francis;
— Attorney Lampl was not involved in the land deal;
— Attorney Lampl's attorney in the estate case, Attorney Ashton, though instrumental in initiating the land deal, nonetheless specifically advised Mr. Zdrale to reject Justice Larsen's offer; and therefore,
— The Fairfield Township land deal provided no motive for Justice Larsen to attempt to influence Judge Ross on Attorney Lampl's behalf in the Estate of Francis case.
*357 C. THE LARSEN/ROSS MEETING
1. Justice Larsen and Judge Ross were the nominees of the same party, were elected together, and served together on the Allegheny County Court of Common Pleas between 1974 and 1978. (Ross, TR at 814; Larsen, TR at 2506-07).
2. Justice Larsen and Judge Ross had until these proceedings enjoyed courteous professional relations. (Larsen, TR at 2537, 2552; Roberts, TR at 1403-03).
3. Justice Larsen testified that prior to May 30, 1986, he had received informal complaints from Judge Zavarella and others regarding Judge Ross' professional and personal conduct. None of the complaints involved good cause to believe Judge Ross had committed ethical violations which would be required to be reported to disciplinary authorities; but, the complaints and concerns, if left unaddressed, could have affected her personally, professionally, and politically. (Larsen, TR at 2540-44).
4. The existence of such complaints and rumors was confirmed by the testimony of Judge Zavarella and Attorney Lampl. Judge Zavarella specifically testified that he had discussed various concerns regarding Judge Ross' judicial conduct directly with Judge Ross, and that as his discussions with her had not been productive, he discussed the same concerns with Justice Larsen in the hope that Justice Larsen would intervene informally. Attorney Lampl discussed several concerns and rumors he was aware of, which were generally circulating among attorneys regarding Judge Ross' personal and judicial conduct. Because the rumors were wholly collateral to these proceedings, no attempt was made to determine their truth or falsity. We note that none of the complaints questioned her ability to understand or recall information she received from others. (Zavarella, TR at 1321-83; Lampl, TR at 76-81).
5. It has been common practice in Pennsylvania, and other jurisdictions, for judges to informally notify or admonish *358 colleagues regarding complaints circulating about their personal or professional conduct; Administrative Judges and Appellate Court Judges (including Supreme Court Justices) have been active in this respect. (Zavarella, TR at 1319-84; Larsen, TR at 2540-44; cf. McDevitt, Judicial Disability and Removal Commissions, 45 Pa.B.A.Q. 118, 119 (1974); Note, Remedies for Judicial Misconduct and Disability, 41 NYULR 149, 168-69 (1966)).
6. On Friday, May 30, 1986, Justice Larsen visited Judge Ross in her chambers and engaged in a conversation. No one else was present, and the conversation was not recorded. (Larsen, TR at 2540-48; Ross, TR at 806-07).
7. Justice Larsen testified that he went to see Judge Ross regarding complaints he had received from Judge Zavarella and others, including particularly negative comments he had overheard in the steamroom at his club. He indicated that he communicated these matters to her as a friend and concerned colleague, and that he was not making any accusations himself. He further testified that he recalled receiving a call from Judge Ross later that day or shortly thereafter, in which she seemed quite concerned and asked if Justice Larsen thought anyone would press a formal complaint against her; and that he reassured her that he thought that was unlikely. (Larsen, TR at 2537-47).
8. Judge Ross remembered the May 30, 1986 conversation dramatically differently. On August 30, 1988, she testified that the May 30, 1986 conversation began generally. She recalled that they discussed: her University of Pittsburgh trustees meeting and the conflict then arising over South African divestiture; the excellent performance of an attorney Judge Ross had appointed to represent a party in the Supreme Court; the possible outcome of a case then pending before the Supreme Court; and, the status of a Senior Judge of the Superior Court. Judge Ross indicated that Justice Larsen eventually stated, "listen, I met two guys on the street and they said to tell Judge Ross in the Homer Douglas Francis case that John Botula took all the money and used it to buy a condominium in Florida." She indicated that she had *359 responded that she knew about the condominium, and then told Justice Larsen that he was wrong about who got all the money and listed for Justice Larsen who got what, including the $17,000 which went to Attorney Lampl, but that Justice Larsen replied, "you are doing a good job, but Jon Botula is the one, you go after Jon Botula." She indicated that Justice Larsen then got up and left pleasantly. Judge Ross also recalled a follow-up call she made to Justice Larsen to find out if his confidential informants would come forward, but that Justice Larsen indicated that they would not. (Ross, TR at 801-33).
9. Judge Ross flatly denied that Justice Larsen, or anyone else (specifically including Judge Zavarella), had ever raised complaints or concerns to her regarding her judicial conduct. (Ross, TR at 1001-1004).
10. Justice Larsen flatly denied Judge Ross's account of the meeting. He indicated that he did not recall discussing any of the introductory topics noted, and testified further that he had not even heard of the Estate of Francis case until October 1987. (Larsen, TR at 2515).
11. On Monday, June 2, 1986, Judge Ross sat on an en banc panel hearing motions in the Estate of Francis case with Judge Schwartz and Judge Zavarella. Judge Ross did not communicate the fact or content of her discussion with Justice Larsen to her colleagues on the panel or to the parties, nor did she report it to this Board, as would have been required if Judge Ross had considered Justice Larsen's conversation to have constituted an improper ex parte communication or an attempt to influence her. (Pa.C.J.C. Canon 1; Pa.C.J.C. Canon 3(B)(3)). Judge Ross did not inform the parties or her colleagues on the Estate of Francis case of the conversation any time after that. (Ross, TR at 822, 861, 941; EX R-3; EX R-4; EX R-16; EX R-17).
12. On Thursday, June 5, 1986, six days after her meeting with Justice Larsen, Judge Ross contacted former United States Attorney Peter Vaira. Judge Ross was a personal friend of Attorney Vaira's uncle, whom Attorney Vaira described *360 as his "mentor." Judge Ross had worked with Attorney Vaira previously on a separate matter. In his testimony on August 31, 1988, Attorney Vaira indicated that he did not take notes of his discussion with Judge Ross on June 5, 1986, and that his memory of the precise content of their conversation was not clear; but, Judge Ross had indicated in general and "circumspect" terms that Justice Larsen had given her a tip about possible bankruptcy fraud in an estate case based upon information he had received from someone on the street. Attorney Vaira indicated that she had given him no reason to suspect that Justice Larsen had acted from anything but the purest motives in providing her with the "tip" concerning her case. Attorney Vaira conceded that he had no first-hand knowledge of the meeting between Judge Ross and Justice Larsen, and no recollection of any further information from Judge Ross. We note that Attorney Vaira also testified that he had "handled matters involving sensitive political matters like this" before, and that "I know a lot of hearsay, and some people have called me," but that he had no further first-hand information to relate to the Board. (TR at 1026-27). Attorney Vaira recommended that she discuss the tip with Western District of Pennsylvania United States Attorney Alan Johnson; and he also suggested that she make a written record of the tip, which she indicated was "a good idea." She did not indicate that she had already begun such a record in her diary. (Vaira, TR at 1024-46).
13. Judge Ross' acceptance of Attorney Vaira's suggestion that she make a written record of the tip as "a good idea" at least arguably suggests that any notes of the May 30, 1986 meeting made by Judge Ross were made at least six days after her meeting with Justice Larsen; though, on the other hand, it may reflect only the degree of circumspection she exercised in her conversation with Attorney Vaira. (Ross, TR at 801-33; Vaira, TR 1024-46).
14. Attorney Vaira characterized his impressions as follows, "I presumed that the Justice [Larsen] had the best of motives and was not good at these kinds of things. Quite often judges *361 may not be as good as we law enforcement people are in taking statements." (Vaira, TR at 1045).
15. According to the Board interviewers' report contained in EX R-23, when interviewed by Board investigators on November 9, 1987, Attorney Vaira indicated that Judge Ross had informed him that Justice Larsen had suggested that mob figures or narcotics were involved, and that it was the narcotics aspect which led him to suggest to Judge Ross that she contact U.S. Attorney Alan Johnson. At the hearing in this matter on August 31, 1988, Attorney Vaira reviewed EX R-23 and specifically affirmed its accuracy. (TR at 1047). However, following direct and cross-examination, on supplemental inquiry by Board Member Hoyle, Attorney Vaira indicated that Judge Ross had made no mention of "narcotics" or "mob figures" and that those references were merely inaccurate interpolations he had made, the source of which he did not know. (TR at 1048-49). Thus, his reference to the "mob figures" or "narcotics" appears to be a classic "interpolation" type innocent fallacy of testimony, as there is no other indication that Judge Ross or Justice Larsen ever made such a reference. This underscores the effects of the passage of time on the recollections of even the most forthright and disinterested witnesses in this matter. (Vaira, TR at 1047-50; EX R-23).
16. Attorney Vaira testified that Judge Ross seemed "uncomfortable" about Justice Larsen's visit (TR at 1026-27, 1038). However, when specifically asked by Board Member Higgins, whether Judge Ross' concern, as Attorney Vaira recalled perceiving it, was inconsistent with his perception that Justice Larsen had been acting from the best of motives, Attorney Vaira explained that it was not inconsistent, and that the discomfort which he was describing was that which would naturally arise from the fact of the ex parte contact, regardless of whether Justice Larsen had the best of motives for giving Judge Ross the tip. (TR at 1050-51).
17. On October 13, 1987, Judge Ross told the FBI that she had gone to Attorney Vaira because she thought Justice *362 Larsen had tried to influence her improperly. Judge Ross' own prior and subsequent statements and conduct, as well as Attorney Vaira's testimony, however, reveal that Judge Ross suspected no attempt to influence her for an improper motive at the time of her meeting with Attorney Vaira. (Vaira, TR at 1024-46; Ross, TR at 823-04, 865-87; EX R-1a; EX R-21, EX R-22).
18. The indication in the interlineation on Judge Ross' diary page that she had discussed the May 30, 1986 conversation with Attorney Vaira at "Cindrich's" (a Pittsburgh law firm) was incorrect. Her conversation with Attorney Vaira had not taken place at "Cindrich's." The indication in the diary entry that she asked Vaira "if Larsen's tip was a crime" was also inaccurate; she had actually asked whether the conduct the alleged tip concerned was criminal, i.e. would the conduct suggested constitute federal bankruptcy fraud. Arguably, neither the error nor the inaccuracy were mistakes likely to be made in contemporaneous accounts of events, though they were of a type likely to occur in an attempt to reconstruct events later from a more distant past. It is possible that Judge Ross may have been mistaken as to when the diary entries had been made. (Vaira, TR at 1024, 1035-07; Ross, TR at 988-99; EX R-21; EX R-22).
19. On Monday, June 9, 1986, Judge Ross had a telephone conversation with Western District of Pennsylvania United States Attorney Alan Johnson, regarding her May 30, 1986 conversation with Justice Larsen. By the time of the August 31, 1988 hearing before this Board, U.S. Attorney Johnson had no independent recollection of his conversation with Judge Ross more than two years earlier, a fact he freely and forthrightly conceded. He did authenticate a brief hand written note he had made at the time of the call, and a brief typed memo made shortly after the call. Both indicated that Judge Ross had informed him that Justice Larsen had passed on a tip to Judge Ross that he had received from two men on the street that Jon Botula had received the money in the Estate of Francis case, and that Judge Ross was reporting it to him as a tip on a possible bankruptcy fraud. He indicated that his *363 notes did not reflect an attempt to make a verbatim record of his conversation with Judge Ross. The notes and memorandum do not reflect, nor did U.S. Attorney Johnson recall, that Judge Ross had in any way intimated that Justice Larsen had attempted to influence Judge Ross improperly, or that Justice Larsen had done anything more than pass on a tip based on hearsay regarding her case. There is no mention of mob figures or narcotics in U.S. Attorney Johnson's notes or memo; thus, confirming that Attorney Vaira's reference to mob figures or narcotics was merely an inadvertent interpolation on his part, and an example of an innocent fallacy of testimony. (Johnson, TR at 1051-59; EX R-23).
20. Judge Ross conceded at the August 1988 hearing before this Board that she had reported the matter to U.S. Attorney Johnson solely as a tip regarding possible bankruptcy fraud, and not as a complaint regarding Justice Larsen's alleged misconduct. Like her October 13, 1987 report to the FBI regarding her conversation with Attorney Vaira ( See I, C, 14), her October 13, 1987 report to the FBI included a similarly inaccurate characterization that her report to U.S. Attorney Johnson had involved a complaint against Justice Larsen, rather than merely the transmission of the tip alleged to have been received from Justice Larsen by Judge Ross to U.S. Attorney Johnson. (Johnson, TR at 1051-59; Ross, TR at 891-92; EX R-1; EX R-1a).
21. Judge Ross stated in her testimony before this Board that her only occasion between May 1986 and December 1986 to discuss the content of Justice Larsen's alleged attempt to influence her was with Judge Cosetti of the Federal Bankruptcy Court who was presiding over a related case. She admitted to having initiated several ex parte conversations with him regarding the Estate of Francis case, and she stated that she told him during one of those conversations that "Justice Larsen came to see me and said `look, I met two guys on the street and they said to tell Judge Ross in the Homer Douglas Francis case that John Botula got all the money and put it in a condominium in Florida.'" Significantly, *364 Judge Ross' own version of her ex parte conversation with Judge Cosetti omits any reference to the critical follow-up comments, "Botula's the one, you go after Botula," which Judge Ross included in other reports of the May 30, 1986 exchange between she and Justice Larsen. (Ross, TR at 819-21).
22. By stipulation, Judge Cosetti flatly denied Judge Ross' assertion. The stipulation provides as follows:
It is hereby stipulated and agreed among the parties that Judge Joseph P. Cosetti of the Bankruptcy Court of the Western District of Pennsylvania, if called to testify, would testify that he had a number of telephone conversations with Judge Ross in 1986 and 1987. That the substance of those conversations was the handling of the Low-Vol Fuels case in the Bankruptcy Court and how it impacted on the Homer Douglas Francis Estate before Judge Ross. He would also testify that he does not remember Judge Ross telling him that Justice Larsen had intervened with her on the Francis estate and that fact, if clearly communicated to him, would be so unusual that he would probably remember it.
We find Judge Cosetti's denial, rather than Judge Ross' assertion, to be credible. (Cosetti, by stipulation, TR at 132-33).
23. On December 12, 1986, the Pennsylvania AFL-CIO presented Justice Larsen with their Judicial Excellence Award. In connection with that occasion, and despite Judge Ross' testimony that Justice Larsen had attempted to influence Judge Ross improperly in the Estate of Francis case six months earlier, Justice Larsen received the following note from Judge Ross on November 25, 1986:
"Dear Justice Larsen: I was pleased to send a contribution of $50.00 to the labor tribute dinner in your honor. I cannot attend because I recently had my arm and hand operated on for severed tendons. I hope the dinner is a success. Happy Thanksgiving. Sincerely yours" "Eunice" (written) "Eunice Ross" (typed).
*365 Judge Ross acknowledged sending the note, but discounted it as merely a "courteous" note. (Ross, TR at 980-81; EX R-20)
24. On March 26, 1987, Justice Larsen and Judge Ross attended a viewing for Judge Watson's deceased mother. Justice Larsen sat by Judge Ross and had a friendly conversation with her. Judge Ross asked Justice Larsen if he could arrange to have her included on the dais, rather than merely in the audience, for the upcoming AFNA Dinner at which Mrs. Anwar Sadat was to be the featured speaker. Justice Larsen told her he would look into it, and in fact arranged for Judge Ross to be moved onto the dais. (Larsen, TR at 2550-01; Ross, TR at 901, 979).
25. On Sunday, April 19, 1987, an article by Jack Grochet and Richard Gazarick regarding an FBI investigation into the Zdrale bankruptcy appeared on Page A-1 of the Greensburg Sunday Tribune Review with a large picture of Mr. Zdrale and Attorney Lampl. The article was continued on page A-10 with a large picture of Justice Larsen who was by then campaigning for his retention election in the fall. The article suggested possible impropriety with respect to the sale of Mr. Zdrale's Fairfield Township property to Justice Larsen. The story noted that Attorney Ashton and Attorney Lampl represented Mr. Zdrale. See Grochet & Gazarick, "Land Sale Scrutinized: FBI Looking Into Zdrale Bankruptcy," Sunday Tribune — Review, at A-1, A-10 (Greensburg, Pa. 4/19/87).
26. Judge Ross indicated that upon reading that article she became convinced that Justice Larsen's conversation with her a year earlier had been part of a pattern of events which indicated that Justice Larsen had passed the tip on to her in an effort to aid Attorney Lampl, and his attorney in the Estate of Francis case, Attorney Ashton, in return for Attorney Ashton's role in the Zdrale land deal. (Ross, TR at 874-75).
27. On cross-examination, Judge Ross' testimony on this point at the August 30, 1988 hearing before this Board was somewhat confused. At several points she indicated that she first drew negative inferences about Justice Larsen's motives *366 as a result of the April 19, 1987 article. (Ross, TR at 823-24, 871, 873-75). In the same testimony, however, she indicated that she felt from the beginning that Justice Larsen was suggesting that she go after Jon Botula and not the others, despite her knowledge from bank records that others had also received money, and that he was telling her, in effect, to find a fact in a case before her regardless of what the evidence proved. (Ross, TR at 828, 831-33, 835-36, 862). Upon further examination, however, Judge Ross conceded that she had not interpreted Justice Larsen's words to her as anything but a tip about possible bankruptcy fraud in the Estate of Francis case until after she read about the Zdrale land deal in the April 19, 1987 article, and that only then did she reinterpret his meaning and intent, and decide that the conversation should be reported. (Ross, TR 875-88).
28. Judge Ross did not report Justice Larsen's alleged attempt to influence her improperly to the parties or her colleagues on the Estate of Francis case, despite her reinterpretation of the meeting following review of the April 19, 1987 article.
29. This Board takes official notice of the fact that Judge Ross participated in a teleconference meeting of the JIRB on May 18, 1987, a full month after the appearance of the April 19, 1987 newspaper article, but that Judge Ross made no report of the fact, content, or presumed import of her May 30, 1986 conversation with Justice Larsen as Canon 1 and Canon 3B(3) would require if she had been of the opinion then that Justice Larsen had attempted to influence her improperly. We take further notice of the fact that she remained silent on this point despite the fact that the April 19, 1987 article was itself discussed by the Board during that meeting and despite the fact that she voted with the Board to issue a letter of inquiry to Justice Larsen regarding the content of that article. (Minutes of JIRB Conference Call Meeting 5/18/87; see also Rowley, TR at 1117, 1126); see Falasco v. Commonwealth Probation and Parole Board, 521 A.2d 991 (1987) (regarding "official notice").
*367 30. Judge Ross testified at the August 1988 hearing that she had reported the fact, content, and presumed import of her May 30, 1986 conversation with Justice Larsen, to JIRB Chairman Judge James Rowley on May 26, 1987, while en route from the Harrisburg Airport to the JIRB headquarters in Harrisburg. (Ross, TR at 822-31).
31. Judge Rowley testified, however, that while Judge Ross had mentioned the article and that Justice Larsen had been to see her, Judge Ross had not indicated that Justice Larsen had attempted to influence Judge Ross, and that if she had indicated that, it would have struck him "like bolt of lightening," and that he would certainly have remembered it. (Rowley, TR at 1130). We find Judge Rowley's denial, rather than Judge Ross' assertion, to be credible. Moreover, we note that not only did she not report the incident to Judge Rowley as alleged, but she failed to report the incident subsequently at any of the numerous Board meetings or one-on-one contacts she had with Judge Rowley prior to her actual first report of the incident to Board Counsel Robert Keuch in September 1987. (Rowley, TR at 1110-32, 1034; Ross, TR at 822-25, 830-31, 897-98).
32. On July 8, 1987, a hearing was held in the Estate of Francis case at which Judge Ross indicated her tentative satisfaction with Attorney Lampl's explanation of his conduct in that case. It does not appear that at that time she suspected Attorney Lampl of conspiring with Justice Larsen and Attorney Ashton, to influence her improperly. (EX R-5).
33. We conclude that Judge Ross' reinterpretation of the May 30, 1986 meeting as the result of the April 19, 1987 article probably did not take its final, settled form until sometime after the JIRB meeting May 18, 1987, and the July 7, 1987 hearing in the Estate of Francis case.
34. On or about, October 16, 1987, Justice William Hutchinson formally resigned his position as Justice of the Pennsylvania Supreme Court in order to assume the post of Judge of the Third Circuit Court of Appeals. His nomination to the Third Circuit post was rumored in the legal press as *368 early as May 4, 1987. Between June 6, 1987, and June 26, 1987, reports of confirmation of the pending nomination by aides to Senators John Heinz and Arlen Specter were published in major newspapers. The nomination was formally submitted on June 26, 1987, and was formally confirmed by the United States Senate on August 7, 1987. We note that during this time many presidential nominations were not acted upon, and so until confirmation, the likelihood of a vacancy occurring on our Supreme Court as the result of a resignation by Justice Hutchinson was a matter of prognostication and speculation rather than certainty. These dates coincide with the timing of Judge Ross' reinterpretation of her May 30, 1986 conversation with Justice Larsen. See Sprague v. Casey, 520 Pa. 38, 50 , 550 A.2d 184, 190 (1988). See e.g. "Around the State — Third Circuit Picks," Pennsylvania Law Journal Reporter, Vol. X No. 18 at 1 ( May 4, 1987 ) (Senator Heinz' aide disclosed that President Reagan was planning to appoint State Supreme Court Justice Hutchinson to a vacant Third Circuit post); "Justice Dept. to Act on Judgeships," Philadelphia Inquirer, at — ( June 6, 1987 ) (Senator Specter confirmed that Justice Hutchinson was a likely nominee); "Around the State — Judicial Nominees," Pennsylvania Law Journal Reporter, Vol. X, No. 24, at 1 ( June 15, 1987 ) (Senators Specter & Heinz confirmed that Justice Hutchinson is nominee); "Reagan to Name Two Pennsylvania Judges to Federal Court," Allentown Morning Call, at — ( June 21, 1987 ) (White House announced that the President will nominate Justice Hutchinson); "Committee May Vote August 4 on Hutchinson Nomination," Pottsville Republican, at — ( July 25, 1987 ) (Senate-Judiciary Committee to vote as early as August 4 on Justice Hutchinson's nomination); Stoffer, ". . . as high court justice assumes U.S. post," Pittsburgh Post Gazzette, at — ( Oct. 17, 1987 ) (Hutchinson will resign and take new seat on same day [ Monday, Oct. 19, 1987 ]; "Around the State — Third Circuit Addition," Pa.L.J.R. Vol. X, No. 42 at 1 (Justice Hutchinson was nominated in June, unanimously confirmed in August, and sworn in October 19, 1987 ).
35. In September 1987, Judge Ross made a formal complaint against Justice Larsen to Board Counsel Keuch regarding *369 Justice Larsen's May 30, 1986 conversation with her. This was her first formal report of the incident to the JIRB, and occurred more than fifteen months after the alleged misconduct, and about six months after the April 19, 1987 newspaper article. (Ross, TR at 898).
36. On October 8, 1987, two months after Justice Hutchinson's confirmation, days before his formal resignation, and only one month before Justice Larsen's scheduled retention election, an article appeared on the front page of the Pittsburgh Post Gazette by Bill Moushey discussing the May 30, 1986 conversation between Justice Larsen and Judge Ross, and the Zdrale land deal. The article suggested that Justice Larsen had specifically intervened with Judge Ross on behalf of Attorney Lampl and Attorney Ashton in the Estate of Francis case, and that Attorney Ashton and Attorney Lampl had been involved in Justice Larsen's "questionable" and "very favorable" land purchase from Mr. Zdrale at about the same time. The article indicated that Justice Larsen was suspected of impropriety, and that Judge Ross had reported the matter to the Justice Department and to "at least one official of state government." The source of the disclosures was not revealed. ( See Moushey, "Larsen asked relief for lawyers," Pittsburgh Post Gazette, at 1 (October 8, 1987)).
37. Attorney Lampl testified that Mr. Moushey had told him that a member of Judge Ross' staff was his principal "informed source." At the Board hearings Mr. Moushey claimed statutory privilege and declined to reveal his sources, or to confirm or deny Mr. Lampl's assertions, even though the Board had ruled the asserted privilege inapplicable. (Lampl, TR at 90, 92 & 133; Moushey, TR at 1145-46, 1657-85).
38. At the hearing before this Board, Judge Ross denied having anything to do with the Moushey article, or knowing how Moushey received information concerning Justice Larsen's conversation with her, or her reports of the matter to state and federal authorities. Judge Ross noted various significant inaccuracies in the article including the assertion that *370 Justice Larsen had mentioned Attorney Ashton and Attorney Lampl in the May 30, 1986 meeting (which she denied). She also noted that only $500,000 rather than $2,000,000 dollars (as indicated in the article) was suspected to have been improperly taken from the estate. (Ross, TR at 865-67).
39. On October 13, 1987, Judge Ross was interviewed by FBI Agents. We noted the inaccurate information in her report to the FBI regarding her conversations with Attorney Vaira and U.S. Attorney Johnson at numbers C-15, C-17, and C-20. We note that the FBI report also indicates that Judge Ross had stated, then, that her first report to the JIRB was through Mr. Keuch and not Judge Rowley as she later testified before the Board. Interestingly, in a letter to Board Counsel Keuch regarding the FBI report, she noted that the only error in the report was its reference to the person to whom she reported the incident, but she made no mention of the errors discussed supra at numbers C-15, C-17, and C-20. (EX R-1; EX R-1a).
40. On October 27, 1987, following publication of the Moushey article, Attorney Lampl moved to have Judge Ross recuse herself as the result of ex parte contacts suggested in the article. In denying the motion, Judge Ross stated:
"The Court has no control over what newspaper writers write about a public record. The opinion expressed in the article was the opinion of the writer of the article. The article indicated that this Court, and properly so, would not comment about that case nor about the allegations concerning Justice Larsen. The court is well aware, under the Canons of Judicial Ethics, the court may not, ever, comment to any newspaper reporter about pending litigation and certainly the Homer Douglas Francis litigation. This Court has been careful to preserve the rights of all parties who appeared before it. I am sure that if the court had not been so impartial, we would have concluded these matters a long time ago. Your motion will be denied, Mr. Ashton."
(Lampl, TR at 92, 153-54; EX R-3, at 19-20).
41. At the August 1988 hearing in this matter, Judge Ross gave three reasons for her failure to recuse herself from the *371 Estate of Francis matter. First, she did not consider communications between Judge Cosetti, Judge Markovitz, or Justice Larsen and herself to be " ex parte, " because she understands (or at least understood) that term to apply only to conversations between a Judge and a party or a party's counsel. (Ross, TR at 861; see also EX R-3 at 3-22; EX B-10 at 4-20. She noted further that she did not feel she had to report Justice Larsen's contact with her because that part of the case was no longer before her. (Ross, TR at 861). Finally, she testified that she felt that the JIRB secrecy provision required her to keep silent about the matter since she had reported it to the JIRB. (Ross, TR at 868-69).
42. Judge Ross also testified that she felt she was unaffected by her belief that Justice Larsen had attempted to influence her improperly on behalf of Attorney Lampl and Attorney Ashton in the Estate of Francis case, and further testified that she could continue to judge the outstanding matters in which Attorney Ashton continued to represent Attorney Lampl in the Estate of Francis case, fairly and impartially despite the fact she believed that they had worked together with Justice Larsen to influence her improperly in that case. (Ross, TR at 870).
43. Although Judge Ross had indicated her satisfaction with Attorney Lampl's accounting at a hearing on July 7, 1987, the opinion she filed in February 29, 1988, severely criticized Attorney Lampl, stating that Attorney Lampl was guilty of unethical neglect of the bankruptcy matter, contributing to the "hemorrhaging" of assets from the estate, but nonetheless made no formal findings of misconduct by Attorney Lampl. Neither the February opinion, nor the ruling on the recusal motion, were reviewed on their merits on appeal to the Superior Court. (Ex. B-9, Ex B-10, Ex B-62).
44. At the August 31, 1988 hearing, Judge Ross identified and authenticated handwritten notes which she testified that she had made contemporaneously with the events indicated in the notes beginning on May 30, 1986. (Ross, TR at 981-1001; EX R-22).
*372 45. Judge Ross' notes do not purport to relate her conversation with Justice Larsen on May 30, 1986 in its entirety. They contain no reference to the unrelated matters she testified that she recalled she and Justice Larsen discussing, and omit reference to the follow-up call. The notation regarding her call to Attorney Vaira is squeezed in as an interlineation and incorrectly notes that she spoke with him at Cindrich's (law firm), when in fact she had not. Both the notations regarding her calls to Attorney Vaira and U.S. Attorney Johnson merely noted the contact and neither indicated the specific content of the calls other than that they related to her conversation with Justice Larsen. The brief characterizations of those calls in her notes are also inaccurate. The notes contain no entries for her alleged contacts with Judge Cosetti or Judge Rowley. After a June 9, 1986 entry a long space is left blank with the date 11/10/86 written on the bottom of the following page with the beginning of a new entry, scribbled out. Significantly, the notes do not contain reference to the critical alleged statements, "Botula is the one" or "Go after Botula," which she testified that she recalled. The diary notes provide no corroborative support for Judge Ross's testimony; the inconsistencies noted, in fact, undermined her credibility to some extent. (EX R-22).
46. On August 31, 1988, Judge Ross testified to this Board that she "had no present desire" to go onto the Supreme Court, that she did not have a desire to go onto the Supreme Court in 1986 or 1987, and that she had decided to run in early 1988, because "the vacancy was suddenly certified" and she had "as good a chance as anyone else." (Ross, TR at 1005-06). Under cross-examination on July 10, 1989, Judge Ross conceded:
Q. Did you contemplate a race for the Supreme Court at the time that you made known your charges or accusations against Justice Larsen, to the Judicial Inquiry and Review Board?
A. First, I don't make accusations. I reported an incident to the Board which I felt was connected with the sale of the real estate.
*373 Q. I'll ask you, at the time that you reported that which had, which later resulted in the charges, I'll put it that way, did you contemplate a race for the Supreme Court?
A. I don't think at that time I was thinking about it. I have always had a hankering to go to the Supreme Court, but I don't think I had done anything that really was —
Q. All I have asked is if you had —
A. Just a latent desire, I would say, all right?
(Ross, TR at 34-35). (Emphasis added).
47. Judge Ross' testimony was challenged in the following additional respects throughout cross-examination:
a. Judge Ross testified she accepted a ride with Justice Larsen from the Pittsburgh airport in 1985, and that she could place the date based upon her recollection that Justice Larsen had suggested that she run for one of the Superior Court vacancies available in 1985. However, Justice Larsen denied ever having made such a suggestion, and Mrs. Roberts indicated that by checking Justice Larsen's calendar and files, she was fairly certain that she had given Justice Larsen and Judge Ross rides home from the Pittsburgh airport on September 19, 1984, but not in 1985. (Ross, TR at 901-02; Roberts, TR at 1403-05; Larsen, TR at 2538, 2686).
b. Judge Ross first indicated that she did not recall her conversation with Justice Larsen in the car, but was certain she would not have brought up her Baby Girl D adoption case which was pending in the Superior Court and virtually certain to be appealed to the Supreme Court. On further cross-examination, however, she conceded that she may have discussed work on hearings for new adoption legislation and a possible grand jury adoption investigation, but not the Baby Girl D case itself. (Ross, TR at 905, 920-22).
c. Judge Ross testified that Justice Larsen was dropped off first and that she was invited in to see his condominium. Justice Larsen and Mrs. Roberts denied that Judge Ross was invited into Justice Larsen's condominium. (Ross, TR at 805; Robert, at 1403-05; Larsen, TR at 2535-39).
*374 d. Judge Ross testified that she was dropped off downtown. Mrs. Roberts recalled that she drove Judge Ross to her home and complimented Judge Ross on her "lovely flowers along the walkway." Judge Ross denied any memory of the compliment, but did not deny the existence of the flowers Mrs. Roberts described. (Ross, TR at 805-06, 814-16; Roberts, TR at 1403-05; Larsen, TR at 2535-39).
e. Judge Ross acknowledged that she dropped off a draft adoption statute, a memorandum, and hearing testimony to Justice Larsen's chambers, but insisted that they did not relate to her "Baby Girl D" adoption case. When confronted with Mrs. Robert's statement that the papers had been marked "Baby Girl D," Judge Ross suggested that her secretary must have not known what to caption the specimen documents and must have labeled them "Baby Girl D," coincidentally. (Ross, TR at 905-20; Roberts, TR at 1405-09, 1425; EX B-41A; In re Baby Girl D, 512 Pa. 449 , 517 A.2d 925 (1986)).
f. Judge Ross testified that she did not recall receiving a letter from Attorney Schuchert asking Judge Ross not to report Attorney Jon Botula's alleged misconduct to the Disciplinary Board. However, Judge Ross' own diary notes refer to such a letter. (Ross, TR at 991-92; EX R-22).
g. Judge Ross denied writing to Justice John P. Flaherty on September 2, 1986. When confronted with a copy of her letter, she stated that she "had a bad memory." (Ross, TR at 977-79; EX R-19).
h. When confronted with a copy of Attorney Lampl's August 18, 1988 exceptions in the Estate of Francis case at the August 31, 1988 Board Hearing, Judge Ross denied she had ever received them. Her denial was contradicted, however, by her own order denying those exceptions entered on August 19, 1988, less than two weeks earlier. (Ross, TR at 969-71; EX R-17; EX R-18).
*375 48. Based on the foregoing, we find that:
Justice Larsen, without any apparent improper motive, improperly provided Judge Ross with a prohibited ex parte tip concerning possible bankruptcy fraud in a case over which Judge Ross was then presiding.
IV. DISCUSSION: CHARGE I
Charge I involves an alleged improper ex parte communication by Justice Larsen to Judge Ross regarding the Estate of Francis case. In discussing the findings relating to this charge we must first determine what we know about what occurred, and then determine its legal significance.
Both Justice Larsen and Judge Ross appear to be convinced that their versions of the May 30, 1986 meeting are complete and accurate; each believes that the other's version is a willful fabrication. Neither Justice Larsen's version, nor Judge Ross' version, however, can be accepted as complete or accurate.
Each of the witnesses, the principal parties as well as the witnesses to relevant subsequent events, presented testimony demonstrably flawed by one or more of Wellman's "innocent fallacies of testimony." The witnesses' memories of relevant conversations evidenced varying degrees of deterioration and distortion as the result of their initial levels of inattention to details of the conversations, the relative insignificances of the details of the conversations at the time they occurred, the press of innumerable other weighty matters on their minds during the interim, sources of false interpolations, and the deleterious effects of the considerable period of time which elapsed between the events to be recalled and the request by this Board that the witnesses attempt to recall those events. Most of the witnesses recognized the potential for such fallacies of testimony and attempted to disclose and discount for them.
*376 United States Attorney Alan Johnson directly and forth-rightly acknowledged that the press of events in his life and the passage of years had erased all independent memory of his conversation with Judge Ross by the time he testified before this Board in this matter. Judge Cosetti, Judge Rowley, and Attorney Vaira each acknowledged that they retained only the outlines of their past conversations with Judge Ross which were the focus of their testimony in this matter.
Even so, risks remain in reviewing their qualified testimony. The innocent interpolation of false references to "mob figures" and "narcotics" into Attorney Vaira's memory of his conversation with Judge Ross on June 5, 1986, in his interview with Board investigators on November 9, 1987 (which he acknowledged in his testimony to this Board), underscores the tenuous ground upon which each of these witness' testimony was founded, as well as the manifest opportunity for innocent fallacies of testimony to distort the actual facts in the witnesses' subsequent reports.
Both Justice Larsen and Judge Ross, on the other hand, claimed far more for their respective memories of the relevant events than the record before this Board could sustain. In rejecting portions of their testimony, however, we expressly reject their reciprocal invitations to find that the other is lying and committing willful perjury. To the contrary, we find that both are respected jurists with excellent reputations for honesty and integrity, who appear to be sincerely mistaken in portions of their recollections of the relevant events. We note that there is abundant cause to believe that innocent fallacies of testimony, rather than willful perjury, account for the dramatic differences in their accounts of their conversation during their May 30, 1986 meeting.
Initially, we must concede that even after extensive and detailed investigation, there is no clear and convincing evidence, to establish the precise context, content, and manner of delivery of Justice Larsen's comments to Judge Ross during the May 30, 1986 meeting. Nonetheless, we find sufficient clear and convincing evidence that Justice Larsen stated something to the effect that, two men on the street had told *377 him that in the Estate of Francis case, Jon Botula took all the money and used it to buy a condominium in Florida. We reject, as an inaccurate interpolation, Judge Ross' further testimony that Justice Larsen had followed that statement with a further directive to the effect that "Botula's the one," "you go after Botula."
The reason for rejecting part of Justice Larsen's denial and part of Judge Ross' accusation is the same — neither are consistent with the available corroborative evidence from credible and disinterested witnesses. We will explain the partial rejections of Justice Larsen's and Judge Ross' testimony separately.
Justice Larsen's flat denial of any knowledge of or comment regarding the Estate of Francis case must be rejected, despite his excellent character for both truthfulness and integrity, because it is clearly and convincingly rebutted by the portion of Judge Ross' testimony which has been corroborated by Attorney Vaira, and United States Attorney Johnson. Both testified that Judge Ross had reported to them shortly after the May 30, 1986 meeting that Justice Larsen had provided her with a tip in the Estate of Francis case concerning possible bankruptcy fraud by Jon Botula. The testimony of U.S. Attorney Johnson and Attorney Vaira thus confirmed that Judge Ross had made prior partially consistent statements near the time of the May 30, 1986 meeting.
It is true that Judge Ross was the sole source for both of the corroborating witness' testimony, thus, undermining the value of their corroboration evidence in that respect, as mere repetition does not corroborate. However, we find it significant that the reports were contemporaneous with the events and both the timing and tenor of these initial reports by Judge Ross lacked even arguable political implications, as they were made far in advance of Justice Larsen's retention election, and were not in any way accusatory toward Justice Larsen. Thus, the prior partially consistent statement provides significant, albeit partial, corroboration by at least partially rebutting *378 challenges to Judge Ross' testimony on grounds of post-event memory decay and distortion, and political bias.
Moreover, there are several reasons to believe that Justice Larsen's sincere and adamant denials of the portion of Judge Ross' account we find proved were caused by innocent fallacies in his testimony. First, a substantial lapse in time occurred before Justice Larsen ever had cause to recall his May 30, 1986 conversation with Judge Ross (in this regard we note that U.S. Attorney Johnson found, after only a slightly longer lapse in time, that he had no independent recollection of his conversation with Judge Ross which had occurred nine days after Justice Larsen's conversation with Judge Ross). Second, if the remark was made to Judge Ross as merely a "tip" (as we find), then Justice Larsen would have had little or no reason to have been attentive to that detail during or immediately after the May 30, 1986 meeting. Hence, Justice Larsen would have no reason to recall the tip by the time accusations were raised concerning that conversation a year and one half later. Third, when the accusations were first made, the corroborated remark was lumped together with the uncorroborated and far more accusatory remarks, "Botula's the one," "you go after Botula." Having forgotten the first remark, and knowing that he had never made the other far more culpable remarks, it is not unlikely that Justice Larsen would have convinced himself that the entire allegation was patently false, though part of it was true.
In this regard, we note the following cogent observations of Francis Wellman:
Every mind is attentive to what it sees or hears, more or less, according to circumstances. It is in the region of hazy impressions that the imagination is wont to get in its most dangerous work. It thus appears that it is partly owing to this variation in intensity of attention that different individuals get such contradictory ideas of the same occurrence or conversation. When we add to this variance in the degree of attention, the variance, just explained, in the individual interpretation or coloring of the physical sensation, we have *379 still further explanation of why men so often differ in what they think they have seen and heard.
* * * * * *
Still another most important factor and itself the source of an enormous number of "fallacies of testimony" is memory. We are accustomed to speak of memory as if it consisted in an exact reproduction of past states of consciousness, yet experience is continually showing us that this reproduction is very often inexact, though the modifications which the "trace" has undergone in the interval. Sometimes the trace has been partially obliterated; and what remains may serve to give a very erroneous (because imperfect) view of the occurrence. When it is one in which our own feelings are interested, we are extremely apt to lose sight of what goes against them, so that the representation given by memory is altogether one-sided. This is continually demonstrated by the entire dissimilarity of the accounts of the same occurrence or conversation which is often given by two or more parties concerned in it, even when the matter is fresh in their minds, and they are honestly desirous of telling the truth. This diversity will usually become still more pronounced with the lapse of time, the trace becoming gradually but unconsciously modified by the habitual course of thought and feeling, so that when it is so acted upon after a lengthened interval as to bring up a reminiscence of the original occurrence, that reminiscence really represents, not the original occurrence, but the modified trace of it.
Wellman, supra, at 142-44. (Emphasis added). Such appears to be the case here. This potential for an innocent fallacy of testimony on Justice Larsen's part provides us with a satisfactory explanation of how the adamant denial of a man known to be truthful could nonetheless be wrong. We note that we suggest subconscious paths to those fallacies, and not conscious ones.
Judge Ross' testimony that Justice Larsen attempted to direct her decision in Estate of Francis by stating that "Botula's the one," "you go after Botula," likewise must be rejected *380 because it is clearly and convincingly rebutted by the portion of Justice Larsen's denial which is corroborated by the content and tenor of Judge Ross' own initial reports of the conversation to Attorney Vaira and United States Attorney Johnson. It is also rebutted by Judge Ross' course of conduct following the May 30, 1986 meeting including her continued courtesy toward Justice Larsen, and her failure to promptly report what would have been egregious misconduct to either the parties and her colleagues on the Estate of Francis case or to this Board. Had Justice Larsen actually attempted to importune Judge Ross so brazenly, we have no doubt that as an ethical jurist and as a then serving member of the JIRB, she would not have hesitated an instant in making a prompt formal complaint to this Board; her failure to do so significantly undermines her credibility on this point. Finally, it is further rebutted by the fact that her original characterization of the May 30, 1986 comments by Justice Larsen as a "tip" was not recharacterized as an attempt to influence her improperly until after she read the April 19, 1987 article suggesting misconduct by Justice Larsen regarding the Fairfield Township Land purchase, almost a full year after the May 30, 1986 meeting.
Similarly, we reject her adamant denial that Justice Larsen discussed complaints raised by Judge Zavarella and others regarding her personal and judicial conduct during the May 30, 1986 meeting. Justice Larsen's clear testimony on this point, his reputation for truthfulness, his prior similar conduct regarding other judges, and the corroborative evidence supplied by Judge Zavarella and Attorney Lampl, all combine to clearly and convincingly rebut her adamant denials.
Moreover, as with Justice Larsen, there are various avenues by which Judge Ross' testimony in this respect may have become innocently mistaken. Again, there is the deleterious effect of time. Judge Ross' contemporaneous prior partially consistent statements to United States Attorney Johnson and Attorney Vaira, indicated that Justice Larsen had provided her with a tip. Her testimony after reading the suggestive April 19, 1987 news article, however, added the alleged rejoinder *381 "Botula's the one," "you go after Botula," which was not included in earlier reports, and which involved a fundamental change in the nature of Justice Larsen's alleged conduct. Once this false interpolation occurred, Judge Ross quite naturally would have become convinced of her duty to bring Justice Larsen to justice via JIRB proceedings; thus, explaining her first, belated report to this Board in October 1987, a year and one half after the May 30, 1986 conversation with Justice Larsen. Moreover, it is likely that her status as key prosecution witness, and as a lightening rod for counter-accusations, negative aspersions, and rigorous cross-examination may have increased both her indignation and her false certainty regarding these matters.
In this regard, we note the following equally cogent observations of Francis Wellman:
Not only does our idea of the past become inexact by the mere decay and disappearance of essential features; it becomes positively incorrect through the gradual incorporation of elements that do not properly belong to it. Sometimes it is easy to see how these extraneous ideas become imported into our mental representation of a past event. Suppose, for example, that a man has lost a valuable scarf-pin. His wife suggests that a particular servant, whose reputation does not stand too high, has stolen it. When he afterwards recalls the loss, the chances are that he will confuse the fact with the conjecture attached to it, and say he remembers that this particular servant did steal the pin. Thus the past activity of imagination serves to corrupt and partially falsify recollections that have a genuine basis of fact.
* * * * * *
Witnesses in court are almost always favorable to the party who calls them, and this feeling induces them to conceal some facts and to color others which might, in their opinion, be injurious to the side for which they give their testimony. This partisanship in the witness-box is most fatal to fair evidence; and when we add to the partisanship of the *382 witness and similar leaning of the lawyer who is conducting the examination, it is easy to produce evidence that varies very widely from the exact truth.
* * * * * *
There is still another class of persons who would not become witnesses for either side unless they felt that some wrong or injustice had been done to one of the parties, and thus to become a witness for the injured party seems to them to be a vindication of the right. Such witnesses allow their feelings to become enlisted in what they believe to be a cause of righteousness, and this in turn enlists their sympathy and feelings and prompts them to color their testimony as in the case of those influenced by the other motives already spoken of.
Wellman, supra, at 146, 150, 152. (Emphasis added, footnotes omitted). Such appears to have been the case here; though we again in no way suggest that either post-event distortion, partisanship, or indignation played anything more than a subconscious role in coloring her testimony.
In reaching our conclusion that part of Justice Larsen's testimony and part of Judge Ross' testimony must be rejected, we specifically reject suggestions of improper motives on the part of Justice Larsen and Judge Ross respectively. We shall deal with these suggested motives briefly.
It was suggested that Justice Larsen was motivated to attempt to influence Judge Ross in order to deflect attention from Attorney Lampl's conduct in the Estate of Francis case, in return for Attorney Ashton's involvement in Justice Larsen's favorable land purchase from Mr. Zdrale (whom both Attorney Ashton and Attorney Lampl had represented). We reject this suggested motivation for four reasons. First, the record reveals that Attorney Ashton, Attorney Lampl, and Judge Ross, all agree that at the time of the Fairfield Township Land deal and the May 30, 1986 meeting there was no reason to believe that there was any need for Justice Larsen, or anyone else, to intervene on Attorney Lampl's behalf. Second, under the circumstances presented, a tip implicating misconduct by Attorney Botula would have had negligible, if *383 any, effect of exculpating Attorney Lampl. Third, Attorney Ashton initiated discussions regarding the potential sale prior to the issuance of a rule to show cause in the Estate of Francis case, and eventually, actively opposed the favorable land deal, specifically advising Mr. Zdrale not to go through with it. Finally, the assertion is wholly inconsistent with Justice Larsen's excellent reputation as an ethical jurist. Hence, Justice Larsen had no reason to intervene on Attorney Lampl's behalf and had nothing to repay Attorney Ashton for doing; and, we have no reason to believe Justice Larsen would intervene improperly on Attorney Lampl's behalf, even if the motivations alleged had existed. Thus, we reject the suggestion of an improper quid pro quo motive for Justice Larsen to attempt to influence Judge Ross on Attorney Lampl's behalf.
It was suggested that Judge Ross was motivated to raise false charges against Justice Larsen for political gain, both by currying favor with Justice Flaherty, and by enhancing her own chances of ascending to a seat on our Supreme Court. We shall address these suggestions briefly, separately.
There is not even a scintilla of evidence to support the suggestion that Judge Ross brought charges against Justice Larsen to curry favor with Justice Flaherty. We reject that suggestion entirely.
It is true that there was a temporal overlap between Justice Hutchinson's vacancy, Justice Larsen's retention election, and Judge Ross' re-evaluation of Justice Larsen's statements in the fall of 1987, more than a year and one half after the May 30, 1986 meeting. It is also true that Judge Ross harbors an acknowledged ambition to serve as a Justice on our Supreme Court. Nonetheless, it is apparent that the April 19, 1987 news article motivated her re-assessment of the nature and import of Justice Larsen's statements on May 30, 1986, and that the imputation of a political motive is unnecessary to explain the part of her testimony which we reject.
The question, then, is whether the "tip" provided by Justice Larsen to Judge Ross on May 30, 1986 constituted misconduct which would warrant a recommendation of formal discipline to *384 our Supreme Court. We find that such a tip violates the rule forbidding all attorneys (including judges and justices) to communicate with a judge regarding a case, outside of the presence of one or more of the parties or their attorneys, while that case is pending before that judge, and that a recommendation of discipline would seem appropriate despite the absence of any apparent improper motive for the improper ex parte communication.
The Respondent was charged herein with violating Canons 1, 2, and 3(A)(4) of the Code of Judicial Conduct.
Canon 1 provides:
A JUDGE SHOULD UPHOLD THE INTEGRITY AND
INDEPENDENCE OF THE JUDICIARY.
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
Canon 2 provides:
A JUDGE SHOULD AVOID IMPROPRIETY AND
THE APPEARANCE OF IMPROPRIETY IN
ALL HIS ACTIVITIES.
A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or,
*385 knowingly permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.
Canon 3 provides:
A JUDGE SHOULD PERFORM THE DUTIES OF HIS
OFFICE IMPARTIALLY AND DILIGENTLY.
A. Adjudicative Responsibilities . . .
(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and except as authorized by law, must not consider ex parte communications concerning a pending proceeding.
Canon 1 is primarily a statement of purpose and rule of construction, rather than a separate rule of conduct. It requires that each of the other Canons be construed in accordance with the Code's fundamental purpose of ensuring both the independence and the integrity of the judiciary. To the extent Canon 1 has been construed to set forth independent rules of conduct, we find none of those rules implicated by Justice Larsen's alleged tip to Judge Ross. See Lawyers Manual on Professional Conduct, § 2101 (ABA/BNA 1985); cf. Sprague v. Waller [ Walter ], 22 D & C3d [Pa.D. & C.3d] 564, 592 (Pa.Ct.Cm.Pl.1982). Canon 1 is inapplicable here except in providing a gloss on the intent of the other more specific provisions.
Any perceived applicability of Canon 3(A)(4) to this case is wholly illusory. Indeed, Canon 3(A)(4) by its express terms relates to Judge Ross' duties and obligations in the scenarios set forth in the allegations. Under Canon 3(A)(4) any judge presiding in a case has an obligation not to consider ex parte communications such as those which Justice Larsen was alleged to have provided Judge Ross. Canon 3(A)(4) is inapplicable here.
Canon 2 is the only provision cited in the charge which applies. Ex parte communications with a judge regarding a *386 case over which that judge is presiding may give rise to an appearance of impropriety which may undermine public confidence in the judiciary. Whether a communication will give rise to such improper appearances, however, will depend upon the context, content and manner of the ex parte communication. See generally Markey, The Delicate Dichotomies of Judicial Ethics, 101 FRD 373, 373-89 (1984); Rehnquist, Sense and Nonsense About Judicial Ethics, 28 The Record 694, 694-713 (1973).
While this issue has not been addressed in any of the published opinions our Supreme Court has issued on judicial ethics matters, it is clear that an ex parte communication by one member of the judiciary to another member of the judiciary may constitute censurable misconduct in Pennsylvania. In 1974, the appearance of impropriety which arose when one district justice called another district justice, asked the district justice to give a friend he identified a "fair trial," and then proceeded to offer the district justice two tickets to a Pittsburgh Steelers football game — as a "favor" to the district justice, was found to constitute censurable misconduct by our Supreme Court. See In re Regan, No. 36 JIRB Dkt. 1974, unreported (Pa.1974), digested in Judicial Discipline and Disability Digest: 1962-1978, at 305 (Rossenbaum ed. 1979).
Other jurisdictions have likewise held that an ex parte communication by a judge to another judge regarding a case pending before the second judge may constitute censurable judicial misconduct. See e.g. In re Edwards, 67 N.Y.2d 153 , 501 N.Y.S.2d 16 , 492 N.E.2d 124 (1986) (judge publicly censured for calling Magistrate identifying self as a judge, and inquiring as to how to settle his son's traffic violation case); Matter of Harned, 357 N.W.2d 300 (Iowa 1984) (impulsive attempt by district justice to have another district justice dismiss her daughter's speeding ticket warrant a four day suspension, dissent would merely have reprimanded); Matter of Murray, 92 N.J. 567 , 458 A.2d 116 (1983) (municipal judge publicly reprimanded for ex parte communication to second municipal judge attempting to gain special treatment for former client's daughter); Roberts v. Commission on Judicial *387 Performance [ 33 Cal.3d 739 , 190 Cal.Rptr. 910 ], 661 P.2d 1064 (1983) (trial judge's improper ex parte communication with an appeals court judge, and other conduct, warranted public censure ); Matter of Cunningham [ 57 N.Y.2d 270 , 456 N.Y.S.2d 36 ], 442 N.E.2d 435 [434] (N.Y.1982) (trial judge's ex parte letter to appeals court judge warranted public censure ); Dixon v. State Com'n on Judicial Conduct

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2278089. Public record. Not legal advice.