As a Hamburg village justice, Andrew P. Fleming issued an arrest warrant for a man accused of raping a 15-year-old girl and later arraigned the defendant in the criminal case.
As a lawyer, Fleming sent a letter on his law firm stationery to a member of the defendant’s family, noting that he had been retained as counsel for the victim and her family to file a civil suit against the defendant.
That dual role has landed Fleming in hot water with the State Commission on Judicial Conduct, which has determined he should be admonished for his conduct.
The commission concluded that “even if (Fleming) was motivated by a sincere desire to help the young victim of a crime whose family he knew, the ethical rules precluded him from acting as her advocate.”
“Every lawyer-judge has a responsibility to scrupulously adhere to the applicable restrictions on the practice of law in order to avoid conduct that may create an appearance of impropriety and impugn the integrity and independence of the judiciary,” the commission said.
In June 2009, Fleming issued an arrest warrant for the rape defendant, Clarence M. Justice, and later arraigned him, according to the commission.
The criminal case eventually went to State Supreme Court, where the defendant was convicted in July 2010 of two counts of rape and two counts of criminal sexual act. He was sentenced to four years in prison on each count.
After the case went to the higher court, the victim’s father, with whom Fleming was acquainted, asked him for information on various legal aspects of the criminal case, which was pending in State Supreme Court. Fleming provided information about the justice system and legal procedures, the commission said.
Throughout the duration of the criminal case in 2010, the judge had several additional conversations with the victim’s family and spoke to the assistant district attorney prosecuting the case.
Before sentencing, Fleming contacted the judge presiding over the criminal case and spoke to him about allegations by the victim’s father that the defendant’s family and supporters were harassing her.
Fleming also sent a letter on his law firm stationery to a member of the defendant’s family and a friend of the family member who taught at the victim’s school, noting that Fleming had been retained as counsel for the victim and her family to file a civil suit and demanding that they “cease and desist” from any further harassment.
In its determination, the commission stated: “A part-time judge who practices law must maintain a strict separation between the exercise of judicial duties and the judge’s private practice of law.”
The commission wrote that having arraigned the defendant and issued an order of protection on behalf of the victim, Fleming “should have recognized that it was improper for him to represent the victim in any related matters.”
Fleming said Tuesday that he would accept the commission’s determination and not ask the chief judge of the State Court of Appeals to review the determination. As a result, the admonishment will take effect in 30 days.
Admonishment is the least severe of three forms of public action the commission can take against a judge. Removal from office is the most severe, followed by censure and admonishment.
Fleming has served as a Hamburg village justice since 2006. His current term expires April 7.
“I look forward to continuing to serve the Village of Hamburg,” he said.