Iowa judge admits hundreds of his rulings were ghost-written by attorneys, raising a host of ethical and fairness concerns

A retired Plymouth County judge has admitted that "a couple hundred" of his rulings actually were written by attorneys involved in those same cases, sometimes without the knowledge of the opposing counsel.

Former Judge Edward Jacobson's admission prompted a sharp rebuke from the counsel to the chief justice of the Iowa Supreme Court, who issued a statement Thursday saying Jacobson's conduct could undermine "public confidence in our system of justice."

One Iowa lawyer has labeled Jacobson's process of issuing decisions written by others as "fraudulent” and an abuse of judicial discretion. Another attorney reported her involvement in the matter to state ethics officials, and a third is alleging that the judge’s actions led to violations of attorney-client privilege.

While it’s not unusual for judges to ask attorneys to submit proposed decisions for their consideration, those requests are made in the open, and the attorneys’ work is labeled a "proposed decision" and made part of the public court file, separate from the judge's ruling.

But Jacobson, who retired from the bench in October at age 69, admitted in a deposition last fall that he sometimes privately requested that attorneys for the winning side write up the decision and then email it to him rather than file it with the clerk of courts as a "proposed decision."

Jacobson would then have his own clerk proofread it and file it with the clerk of courts over his signature.

This process allowed the attorneys who authored those decisions to craft not only the judge’s factual findings but also the legal rationale for those decisions.

“That is clearly improper,” said Bob Oberbillig of Drake University Law School. “I’ve never heard of such a thing. The court was simply delegating its responsibility to others. The problem with that is it’s almost impossible for an attorney, as an advocate, to write a ruling that is impartial.”

'Ghost-writing is generally discouraged'

Duane Hoffmeyer, the chief judge of the district where Jacobson worked, said this week that he wasn't aware of Jacobson's deposition last fall where he said "a couple hundred" decisions had been written by attorneys involved in those cases.

“What you are telling me I am hearing for the first time,” Hoffmeyer told the Register. “I had no idea there were a couple hundred of these cases.”

He said Iowa judges are trained, from orientation onward, to refrain from having attorneys write their decisions, adding that the practice of failing to disclose such actions to the opposing counsel is an even bigger concern.

“Ghost-writing is generally discouraged,” he said. “That is a pretty well-known guideline. It can be allowed under certain circumstances, but it’s just generally preferable not to go down that path.”

Ex parte communications, in which a judge speaks privately with only one party in a case, are barred by the Iowa Code of Judicial Conduct if they result in an advantage of any kind to that party.

Molly Kottmeyer, counsel to Iowa Supreme Court Justice Mark Cady, said in a written statement that "Iowa judges work hard every day to write decisions that explain their rulings. It is very disappointing to learn of allegations that a judge may have engaged in conduct that undermines this important process, and, in turn, undermines public confidence in our system of justice.

"The allegations are not representative of Iowa's judiciary. The Iowa Supreme Court will continue to work to ensure that the decisions of Iowa's trial court judges are made fairly and impartially."

The Des Moines Register was unable to reach Jacobson for comment Wednesday and Thursday.

'All I want is somebody to put it on paper'

In his deposition, Jacobson stated that during his 16 years on the bench he presided over roughly 2,000 divorce cases, in addition to criminal cases and lawsuits.

Asked how often he had directed an attorney to "write the final ruling after a contested case," Jacobson replied, "I don't know. A couple hundred, maybe."

He said he would sometimes tell the attorney only the conclusions that he had drawn in the case, leaving it to the attorney to divine his reasoning.

When asked how often he communicated these directives only to one party in the case, Jacobson said, "If I made a decision, and all I want is somebody to put it on paper. I don't have any problem telling one counsel to do it without telling the other counsel I told them to do it."

Jacobson said the process lightened his workload and enabled him to meet the court system’s 60-day deadline for judges to rule on cases awaiting a decision.

"I really, really tried hard to never have anything go over the 60-day rule," he said, "and if I was under time constraints, that's usually when it happened."

Asked how many lawyers had authored final rulings for him after a contested case, Jacobson said, "I wouldn't have any idea. Somewhere — 200 or less."

As a district court judge, Jacobson was paid $144,000 per year. He was appointed to the bench in October 2001 after spending 26 years in private practice and serving as county attorney for Ida County.

'I didn't write this thing'

Jacobson's deposition took place last November in a Plymouth County divorce case, but the transcript first became public Thursday as an exhibit in the case.

According to court records, in June 2016 Jacobson telephoned Elizabeth Rosenbaum, one of the attorneys for the wife in the Plymouth County case, telling her to write up a final divorce decree that reflected his decision to rule in her favor on every issue that was argued in the case.

After Rosenbaum wrote and emailed him the decree, the judge sent an email back to Rosenbaum, writing, “Thanks, Elizabeth. That was a great help. Fixed one typo and filed.”

The opposing counsel was unaware that Jacobson didn’t write the decree until the following December when vague language in it became the focus of a court hearing.

At that hearing, Jacobson looked at the decree that bore his signature and reportedly became angry.

“I remember Judge Jacobson getting very upset,” Rosenbaum said in a November 2017 deposition. “I remember it sounded like he slammed his fist down and said, ‘I didn’t write this thing.'"

'I don't want to hear anything'

In her deposition, Rosenbaum said that about a month later Judge Hoffmeyer called her into his chambers at the courthouse and immediately raised his hand in front of her face to signal that he wanted her to remain silent.

“He said, ‘I don’t want you to say anything. I don’t want to hear anything. I'm just going to tell you that there are rumors out there, and one of the rumors is that you wrote a document and sent it directly to a judge and didn’t copy (opposing) counsel on it.’ And I said, ‘Uh — ,’ and he said, ‘No,’ and he held up his hand again. And he said, ‘Don’t say anything. I don’t want to hear anything. But if that did happen, you should self-report to the bar.'"

Rosenbaum said Hoffmeyer waved her away with his hand and she subsequently self-reported her conduct to the Attorney Disciplinary Board of the Iowa Supreme, which last September dismissed the matter without recommending disciplinary action.

The December 2016 hearing has led to a flurry of additional litigation in the divorce case.

Earlier this week, Brandon Brown, the attorney for the husband, filed court papers alleging that what had once been a simple divorce proceeding had become a “complex matter involving questions of fraud, irregularity, ex parte communication (and) judicial discretion.”

"Giving one party the secret authority to prepare the final decree," Brown wrote, "gives that party a procedural, substantive and tactical advantage — and it is not reasonable to believe otherwise."

R. Scott Rhinehart, one of the attorneys for the wife, has argued that the husband’s efforts to set aside the decree should be dismissed since no one can say “how the result would have been different if the court had drafted its own decree.”

The case has also led to complaints of ethical violations by attorneys in the case.

In November, Rosenbaum filed a formal ethics complaint against the husband’s original attorney, Tara Vonnahme, alleging Vonnahme tape-recorded a conversation between the two of them.

In court papers, Vonnahme said the information about the recording was gleaned from a lawyer who worked for Vonnahme at that time — and so the disclosure to Rosenbaum represents a violation of attorney-client privilege.

Additional hearings in the divorce case are expected, and it's possible Jacobson could be called to testify about how the decree was written.

Steve Davis, communications director for the Iowa Judicial Branch, noted that in a 2010 case involving the Iowa Department of Human Services, a district court judge had adopted, verbatim, the state agency's proposed findings of fact and also quoted at length from the agency's proposed conclusions of law.

The court pointed out that in such cases, judges' decisions tend to reflect "the findings of the prevailing litigant rather than the court's own scrutiny of the evidence and articulation of controlling legal principles.”

The court added: "We once again encourage our district courts not to adopt verbatim the proposed findings of fact and conclusions of law prepared by counsel. It is the district court's duty to independently determine the facts, articulate the controlling law, and apply the controlling law to the facts. A court should never abdicate this essential duty of the judicial branch of government to counsel or the parties before the court."