Raymond Dague: Episcopal Bishop Subverts Judicial Ethics

When the Executive Council of the Episcopal Church met in Chicago from November 15 to 18, Bishop Stacy Sauls of Lexington, Kentucky was there and presented the work of his “task force” on legal matters related to the widening split in the church.

According to an Episcopal News Service story and media accounts of the event, “Sauls says that lawyers, including several diocesan chancellors and a judge on the 11th U.S. District Court of Appeals, are helping the bishops prepare” for litigation.

This task force, according to the Associated Press story, has been working to “developed a ‘brief bank’ of court filings and legal research to help dioceses with litigation and has also identified potential expert witnesses” for the litigation. (Expert witnesses are used at a trial to convince the jury or judge that one side in the litigation should prevail.) The task force is also “working on a position paper ‘setting forth possible common grounds which could be sought so that the split in The Episcopal Church which is feared by the task force might be avoided.’”

There is nothing wrong with lawyers meeting to plan legal strategy. That is what lawyers do. As an attorney, I know how prudent it is to plan for litigation, both to avoid it, and if it cannot be avoided, to handle it well once the lawsuits start to fly. I do not begrudge any attorneys brainstorming with one another. Lawyers are advocates, and our roles of advocacy certainly involve advising clients and preparing for lawsuits.

It is distasteful (to say the least) to scheme to sue another diocese of the church. I cannot imagine participating in a “task force” to sue another diocese. I may disagree with the theology and practice of New Hampshire or Newark (and I vehemently disagree with them), but I am not part of any plan to sue them, nor will I be. If these dioceses choose to walk apart from the faith once delivered, that is their concern. They will have to answer to God, but they should not have to answer to the courts. Apparently several of my fellow chancellors have no such compunction, and are willing to be part of Stacy Sauls’ task force to sue.

What is a federal judge doing in all this? The press story ambiguously says that the judge in question is on the “11th U.S. District Court of Appeals.” This is a confusing reference, since there is in the federal system a “district court,” and a “circuit court of appeals,” but no “district court of appeals.” The 11th Circuit Court of Appeals is the federal appeals court below the U.S. Supreme Court which hears appeals from the nine district courts located in Alabama, Florida and Georgia. But whether this un-named federal judge is a circuit court or a district court judge is irrelevant. Why is a federal judge on a task force plotting legal strategy for anticipated litigation?

It is wrong for a federal judge to participate in a “task force” planning to sue parishes and dioceses in the Episcopal Church. Such conduct violates Canons 2(b) and 5(b)(1) of the Code of Conduct for United States Judges. If a judge wants to quit the bench and head back to the practice of law, he is free to advise clients and be a part of the task force Stacy Sauls has assembled. But while he remains on the bench, this sort of behavior violates judicial and legal ethics.

Lawyers as well as judges have an ethical duty to protect the impartiality and fairness of the legal profession. It is just as illegal for a lawyer to offer a bribe as it is for a judge to accept a bribe. Neither a lawyer nor a judge should be part of trying to recruit a judge to take sides in a legal battle. Stacy Sauls is a bishop of the Episcopal Church, but he is also a lawyer. Apparently he feels that his duties as a bishop do not bar him from subverting the judiciary into violating their ethical duties.

I am not a bishop, so I will not lecture Stacy Sauls about his ethics as a bishop. I’ll leave that to his fellow bishops. But as a lawyer, I can say that it sure looks like he is violating his oath as an attorney in doing this.

Christians are not supposed to sue one another in the courts, says 1 Corinthians 6:4-8. But apparently this bishop/lawyer takes as loose a view of the scriptures as he does of legal and judicial ethics. This is sordid behavior for one who once took an oath to uphold the rule of law. One wonders whether this bishop/lawyer will claim that the Holy Spirit somehow told him to "Go For It" as he ropes diocesan chancellors and a judge into his schemes to sue parishes and dioceses.

Raymond Dague is a New York attorney and an assistant chancellor of the Episcopal Diocese of Albany.