Lawyer: Embattled jurist sealed charges of bias, secret fund

A Marin County judge targeted for recall is being accused of sealing court records in a divorce case after an attorney added a sworn declaration to the file saying the judge was ethnically biased and claiming a potentially illegal secret fund was established on his behalf.

The file was ordered unsealed Tuesday by another judge.

In late June, Superior Court Judge Michael Dufficy closed the public record in the case of Semrin and Vahid Ettefagh, a complicated 3-year-old divorce involving allegedly hidden foreign real estate assets, according to Semrin Ettefagh's attorney, Kathryn Ballentine Shepherd of Larkspur.

Shepherd said that Dufficy sealed the entire file soon after she accused him in mid-June of speaking prejudicially of Iranian women and improperly benefiting from a secret political fund. Shepherd's formal accusations were made June 15.

Dufficy, in an interview, denied the bias charge and claimed he hadn't given his approval to the fund.

He also told a reporter - on July 21, July 24 and July 25 - that he had not sealed the file, but that an unidentified court clerk had erred in handling the records. Dufficy did not elaborate on the alleged error.

"As far as I'm concerned the file is a public record," the judge said on July 24.

However, the Ettefagh file was still sealed on all those dates, according to supervising court clerk Sandra Stanley and her boss, court division manager Deborah Bohlen.

On Monday afternoon, six days after Dufficy had last asserted that the Ettefagh case record was public, Bohlen said: "It appears he is asking us at this point not to have the file sealed. I was told that a few minutes ago."

Not content to wait longer, Shepherd and the opposing counsel in the case, Judith Cohen of Corte Madera, filed a document with the Marin County Superior Court on Tuesday morning formally demanding that the Ettefagh case records be unsealed, except for certain third-party financial documents, which have been under seal since December 1998.

With the exception of those documents, the file was promptly ordered unsealed by one of Dufficy's colleagues on the bench, Judge

Lynn Duryee.

FBI probe said to resume

Shepherd said the Ettefagh case, certain probate cases and several child-custody matters were under current investigation by the FBI - an apparent revival of a probe reported by The Examiner in May that began last fall and continued through the spring, before going temporarily dormant.

"They sought me out," Shepherd said. "They wanted to talk about the courts, about fraternization among lawyers in this county and Judge Dufficy, and whether there was some sort of quid pro quo. They had a distinct interest in the Ettefagh case, as well."

The FBI did not return calls; in the past, it has declined comment on the Marin County courts.

Several county residents have confirmed that the FBI, acting under federal laws giving it limited authority to investigate alleged misconduct by state judges, has interviewed local people who have been critical of judicial actions in family law and probate matters.

Dufficy said he heard the FBI was investigating, but had not been contacted and didn't believe he was involved.

Critics of the Marin County bench, most of whom claim to have suffered from adverse decisions, accuse Dufficy and other local judges of favoring a small group of highly paid lawyers and court-appointed conservators of estates, which typically consist of financial assets and real estate belonging to incapacitated elderly people.

They say the judges have been unfair to poor child custody litigants and heirs confronting the complex requirements of probate law, which gives judges wide discretion in determining how estates may be handled and by whom.

Their charges were summarized in a privately funded report by a New York consultant made public in late February. The report, which accused several judges and lawyers of gross misconduct, was attacked in another report issued July 10 by a group of Marin attorneys.

Judicial bias alleged

According to Shepherd, Dufficy slurred an Iranian female client of hers at a 1994 settlement conference in another case by saying that she was "one of those Iranian women who believe they have an

apartment in Europe."

Shepherd's client in the current divorce case is Turkish in origin but the attorney claims the judge believes she is Iranian, because she lived in Tehran much of her life - and therefore the alleged slur in the previous case, the attorney said, is meaningful in the current one.

Dufficy said in his own sworn statement June 12 that he had "no recollection" of making a derogatory comment about Iranian women in 1994. But he recused himself from the Ettefagh case 16 days later, citing the "inexplicable level of vitriol" that had arisen.

In her sworn statement accusing the judge of bias, Shepherd also said she had been asked to give $1,000 to a Dufficy political fund whose contributors' names would be kept confidential "so as to avoid any further allegations of favoritism, which was one of the bases for the recall effort."

Shepherd said she declined to contribute because she was "concerned that campaign finance laws and ethical rules would require disclosure of . . . contributors . . . ."

She said the revelation that he had an alleged secret fund would result "in a deepening public perception of an uneven playing field in the courts here and further politicization of the court."

"I am not donating to such a fund as I believe it is unseemly," Shepherd said.

Melissa Mikesell, a spokeswoman for the state Fair Political Practices Commission, said California's Political Reform Act requires the disclosure of the names of contributors and the amounts they contribute to political campaigns, ballot measure drives and recall efforts. The penalty for each violation is a $2,000 fine.

Shepherd said she received a letter dated May 15 from Corte Madera lawyer s Madeleine Simborg and Peggy Bennington soliciting $1,000 contributions to Dufficy and the other Superior Court judges targeted for recall, Duryee and Terrence Boren. The money would be used to hire San Francisco political consultant Don Solem.

"We believe it is important that Judge Dufficy not know the names of the lawyers who have contributed other than that we are an anonymous group," the letter said.

"Otherwise it might be per

ceived as yet another reason to allege favoritism towards certain lawyers - which is one of the accusations that is being used to legitimize the recall campaign."

Shepherd also obtained a copy of a fax to Bennington from former Alameda County family law Judge Roderic Duncan addressed to "Mike Dufficy and the mystery lawyers" that included the recommendation that Solem be hired to direct Dufficy's anti-recall campaign. The fax said that among the things needed to proceed was "Mike's approval."

Duncan, now retired, confirmed that he had advised Dufficy on the recall. But Duncan said he believed full disclosure of contributions to the beneficiary or beneficiaries was required by law.

Dufficy said the letter was issued without his knowledge. FPPC records show that the group backing Dufficy, Duryee and Boren - Committee to Retain an Independent Judiciary - had collected $12,450 in contributions as of June 30 from 21 donors, mostly lawyers in Marin and San Francisco.

Simborg and Bennington did not return phone calls.

Dufficy, Duryee, Boren and Marin County District Attorney Paula Kamena, who is not a beneficiary of the anti-recall committee's efforts, were targeted for recall in late April and early May by a group of residents composed primarily of parents who had lost child custody cases heard by Marin judges.

Dufficy, 61, was the county's chief family law judge, hearing or supervising typically contentious and emotional child custody and probate proceedings. In late May, he announced that he would immediately stop presiding in those cases, citing work-related stress and a heart condition.

Dufficy had been scheduled for reassignment in January 2001.