His job, her job sometimes collide

Ethics: Even these days, wives and husbands, like the O'Malleys, have to find ways to avoid the appearance of a conflict of interest.

January 21, 2002|By Peter Jensen | Peter Jensen,SUN STAFF

If Judge Catherine Curran O'Malley feels like talking these days, she should probably spend some time with Sheila K. Sachs.

Sachs and her husband, Stephen H. Sachs, were like the Judge O'Malley and Mayor Martin O'Malley of a generation ago. Even today, Sachs is a bigtime city lawyer, a specialist in family law - alimony, child custody, that sort of thing, and often represents the local celebrities when they wind up in divorce court.

But in January 1979, she was a part-time attorney who was in the midst of an ethical conflict that would greatly influence her career. Her husband, Steve, had been elected Maryland attorney general, and she was a member of the Baltimore city school board that was suing the state to get the school aid formula changed.

So despite five years on the board and newspaper clippings that described her as the schools' "leading financial expert" and the board member who "steered the city" through its desegregation crisis, Sachs stepped down to avoid becoming entangled with her husband.

She embraced family law because it kept her from potential ethical conflicts with her husband, who would later become an unsuccessful candidate for governor. Never again would she hold such a high-profile position. "This is one case of potential conflict of interest we hate to see ended," this newspaper's editorial page opined at the time.

But that was 23 years ago. Things have changed for working women and the wives of politicians, right?

"I knew the public wasn't ready for the spouse of a public official to be a lawyer and to be in the kinds of situations that Judge O'Malley is in today," says Sachs. "I would have thought in 23 years we would have come further."

For Maryland women in the bar, the case of the O'Malleys, Baltimore's two-career first couple, raises a lot of questions along those lines. An ethics committee's decision that Judge O'Malley can't hear cases involving police witnesses - not to mention cases involving city government affairs - means two-thirds of her district court docket has just been taken away from her.

Limiting a judge's reach is not considered such a good thing when one is talking about the city's heavy court workload. And the irony is too obvious: Could it be that the daughter of Attorney General J. Joseph Curran Jr. and the wife of the city's mayor is more hurt than helped by her familial connections?

Political intrigues aside, women lawyers have a more immediate concern. Often, they marry male lawyers just like Judge O'Malley did. For 200 years or so, fathers and sons, brothers and cousins have been on and off the Maryland bench without nearly so much fanfare.

Are things different for a wife?

"I think there's some sexism involved," said Del. Ann Marie Doory, a city Democrat and longtime member of the House Judiciary Committee, "but it's also a unique situation."

With women rising in the legal ranks, it couldn't be an entirely unexpected development. Judge Mary Ellen Barbera, who was sworn in as a court of special appeals judge just two weeks ago, is already facing a spousal conflict. Her husband, Gary E. Bair, heads the state attorney general's criminal appeals division.

At her own suggestion, she won't be assigned any criminal cases until some accommodation is worked out. Exactly how they'll resolve the ethics of their situation is "being researched," says Bair.

"This is the kind of thing professional couples have to address from time to time throughout their careers," says Barbera, who met her husband when they were colleagues in the attorney general's office. "We want to make sure it's handled properly."

There is a small but growing number of two-law-school-grad couples who have had to make choices. Judge Deborah S. Eyler of the Court of Special Appeals won't serve on a three-judge panel with her husband, James R. Eyler, a fellow judge on the same court.

"Not because we thought we would be unfair but someone may perceive us as more likely to agree or disagree with each other," says Eyler.

Judge Diana G. Motz, a federal appeals court judge for the circuit that includes Baltimore, has long recused herself from cases heard by her husband, J. Frederick Motz, a U.S. District Court judge in Baltimore. "I think we could have been impartial, but we never would have tried," she says. "The public is entitled to Caesar's wife."

Motz considers her situation relatively simple. But she does admit that ethics laws, whether federal or state, have some complex peculiarities. A judge has to know a spouse's every investment down to individual shares of stock to avoid having a financial stake in a case's outcome - yet there's no direct prohibition on hearing a case that might involve your best friend.

"Don't get me wrong, marriage is different," says Motz. "[But] sometimes, it's appearance vs. reality."

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