Full opinion text
Opinion THE COURT. The Commission on Judicial Performance (Commission) has filed in this court its recommendation that G. Dennis Adams, a judge of the Superior Court of San Diego County (petitioner), be removed from office. (See Cal. Rules of Court, rule 919(a).) In support of its recommendation, the Commission submitted findings of fact and conclusions of law determining that petitioner had committed a variety of actions that constituted wilful misconduct in office, conduct prejudicial to the administration of justice that brings the judicial office into disrepute, and improper action. (Cal. Const., art. VI, § 18, former subd. (c).) In response, petitioner filed a petition to modify or reject the recommendation (see rule 919(b)) or, in the alternative, for remand for a new hearing before the Commission, on the ground that petitioner was denied due process of law at his hearing. We conclude, after independently reviewing the record, that petitioner’s due process challenge to the disciplinary proceedings before the Commission has no merit, and that the record supports all of the charges of wilful misconduct and most (but not all) of the charges of prejudicial conduct, and also establishes improper action. With respect to the appropriate discipline, we uphold the recommendation of the Commission that petitioner be removed from office. I Petitioner was a judge of the Municipal Court of San Diego County, El Cajon Judicial District, from December 16, 1975, to March 9, 1979, was appointed to the Superior Court of San Diego County in 1979, and was elected and reelected to the superior court for successive terms in 1980, 1986, and 1992. On December 10, 1992, following an extensive preliminary investigation (rule 904.2), the Commission filed a notice of formal proceedings against petitioner, alleging (in four counts) facts charged as constituting both wilful misconduct and prejudicial conduct. Petitioner filed an answer denying the charges. Thereafter, the Commission filed a first amended and second amended notice, and petitioner answered, again denying the charges. In October and November 1993, three special masters appointed by this court held a seventeen-day evidentiary hearing on the issues presented (rules 907-908). The examiners (in this case, deputies of the Office of the Attorney General) prosecuted the charges against petitioner, who was represented by private counsel. Following the conclusion of the hearing, the special masters transmitted to the Commission their proposed report, together with findings of fact and conclusions of law. As to count 1, the masters concluded that the allegations of petitioner’s receipt of special benefits had not been established, but that the alleged facts that were found to be true sustained most (but not all) of the charges of separate instances of prejudicial conduct; as to counts 2 and 3, the masters found that certain of the alleged facts had not been established, and the alleged facts that were found to be true did not sustain the charges of either wilful misconduct or prejudicial conduct; and as to count 4, the masters found the alleged facts that were found to be true demonstrated “negligent” prejudicial conduct, but not wilful misconduct. The special masters concluded in their report that petitioner was not guilty of wilful misconduct and that in no instance had he acted in bad faith, but that he was guilty of prejudicial conduct. The examiners filed a lengthy statement of objections to the report of the special masters, disputing in particular the conclusion that certain facts had not been proved and that other facts did not amount to wilful misconduct or prejudicial conduct. The report of the Commission, filed with this court in September 1994, confirmed the special masters’ findings with respect to the alleged facts found by the special masters to be true, and found true additional allegations that the masters had concluded had not been proved. The Commission differed significantly from the masters in assessing particular acts as wilful misconduct or prejudicial conduct, concluding that the facts found to be true sustained charges of four separate instances of wilful misconduct and thirteen separate instances of prejudicial conduct, as well as several instances of improper action. By a vote of six to two, the Commission recommended that petitioner be removed from office. II In Kennick v. Commission on Judicial Performance (1990) 50 Cal.3d 297 [267 Cal.Rptr. 293, 787 P.2d 591, 87 A.L.R.4th 679], we summarized the applicable standards governing our review of a disciplinary recommendation of the Commission. Under the California Constitution, a judge may be censured publicly or removed from office for action that constitutes “wilful misconduct in office” or “conduct prejudicial to the administration of justice that brings the judicial office into disrepute,” and may be admonished privately if found to have engaged “in an improper action or a dereliction of duty . . . .” (Art. VI, § 18, former subd. (c)(2).) “Wilful misconduct in office” has two elements: the judge’s misconduct must be wilful, i.e., done with malice or in bad faith, and it must be committed in office, i.e., while acting in a judicial capacity. The element of malice or bad faith, in turn, must meet a two-pronged test: the judge must have (1) committed acts he or she knew or should have known to be beyond his or her power, (2) for a purpose other than faithful discharge of judicial duties. (Kennick v. Commission on Judicial Performance, supra, 50 Cal.3d at pp. 313-314; Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826, 832 [264 Cal.Rptr. 100, 782 P.2d 239, 89 A.L.R.4th 235].) Prejudicial conduct, or “conduct prejudicial to the administration of justice that brings the judicial office into disrepute” (art. VI, § 18, former subd. (c)), may be committed by a judge either while acting in a judicial capacity, or in other than a judicial capacity. (Kennick v. Commission on Judicial Performance, supra, 50 Cal.3d at p. 314.) The provision that the conduct must be that which “brings the judicial office into disrepute” does not require actual notoriety, but only that the conduct, if known to an objective observer, would appear to be prejudicial to public esteem for the judicial office. (Getter v. Commission on Judicial Qualifications (1973) 10 Cal.3d 270, 284 [110 Cal.Rptr. 201, 515 P.2d 1].) Unlike wilful misconduct, prejudicial conduct does not require the presence of bad faith, but may occur when a judge, though acting in good faith, engages in conduct that adversely would affect the esteem in which the judiciary is held by members of the public who become aware of the circumstances of the conduct. (Kloepfer v. Commission on Judicial Performance, supra, 49 Cal.3d 826, 832; McCullough v. Commission on Judicial Performance (1989) 49 Cal.3d 186, 191 [260 Cal.Rptr. 557, 776 P.2d 259].) The subjective intent or motivation of the judge is not a significant factor in assessing whether prejudicial conduct has occurred under this standard. (Gonzalez v. Commission on Judicial Performance (1983) 33 Cal.3d 359, 376 [188 Cal.Rptr. 880, 657 P.2d 372].) Although a judge may perform the necessary judicial functions diligently, competently, and impartially, his or her inability to discern (and thus to avoid) extrajudicial activities that reasonably would be perceived as damaging to the judiciary may place that judge’s fitness for judicial office in doubt. The canons set forth in the California Code of Judicial Conduct are relevant to the determination whether a judge’s actions constitute “conduct prejudicial to the administration of justice that brings the judicial office into disrepute,” in that the canons reflect a consensus as to the standards of conduct and appropriate behavior to which judges properly should be held. (Adams I, supra, 8 Cal.4th at pp. 661-662.) “The failure of a judge to comply with the canons ‘suggests performance below the minimum level necessary to maintain public confidence in the administration of justice.’ ” (Id. at p. 662.) The acts of misconduct charged in the present proceeding are alleged to have occurred while the 1975 version of the Code of Judicial Conduct was in effect, prior to adoption of the 1992 version of that code, and thus our assessment of petitioner’s conduct is governed by the earlier version of the code. We therefore shall review those pertinent canons as they appeared in the 1975 version. (The pertinent text of the prior version of the canons was adopted in substance in the 1992 version of the code, except where otherwise noted. All references to canons refer to the canons of the Code of Judicial Conduct.) Former canon 2 provided that a judge should avoid impropriety and the appearance of impropriety in all of the judge’s activities and, as a consequence, must accept restrictions on his or her conduct that might be viewed as burdensome by the ordinary citizen. Former canon 2B provided that judges “should not lend the prestige of their office to advance the private interests of others; nor should judges convey or permit others to convey the impression that they are in a special position to influence them.” Former canon 5C(1) provided that judges “should refrain from financial and business dealings that tend to reflect adversely on their impartiality, interfere with the proper performance of their judicial duties, exploit their judicial position, or involve them in frequent transactions with lawyers or persons likely to come before the courts on which they serve.” A significant portion of the charges against petitioner involve petitioner’s alleged acceptance of gifts, financial benefits, or preferential treatment from attorneys or law firms that appeared before petitioner, and from a litigant in a case over which petitioner presided. The canons, as well as other rules and regulations, pertaining to and governing the propriety of the acceptance of gifts by judges, are therefore particularly apposite to our review of the charges in the present case. Former canon 5C(4) provided that, in general, judges should not accept gifts if the donor is a party or other person whose interests have come or are likely to come before the judge, subject to specified exceptions. Recently, in our decision in Adams I, we noted that a judge’s acceptance of gifts from those whose interests appear before the court bears an obvious appearance of impropriety, “ ‘is inherently wrong,’ ” and “ ‘has a subtle, corruptive effect, no matter how much a particular judge may feel that he is above improper influence.’ ” (Adams I, supra, 8 Cal.4th at p. 663.) One of the specified exceptions under former canon 5C(4) to the prohibition against acceptance of gifts from those whose interests have (or are likely to) come before the court, is “ordinary social hospitality.” (Former canon 5C(4)(b).) The Judicial Ethics Committee of the California Judges Association has defined ordinary social hospitality as follows: “It is that type of social event or other gift which is so common among people in the judge’s community that no reasonable person would believe that (1) the donor was intending to or would obtain any advantage or (2) the donee would believe that the donor intended to obtain any advantage.” (Cal. Judges Assn., Jud. Ethics Com., Opn. No. 43 (1994) at p. 4, published in Rothman, Cal. Judicial Conduct Handbook.) Again, in determining the propriety of activity that arguably might qualify as social hospitality, the focus is upon the reasonable perceptions of an objective observer, rather than the motive or intent on the part of the judge. The California Political Reform Act of 1974 requires that any gift in excess of $50 be reported on a statement requiring disclosure of “[a]ssets and income of public officials which may be materially affected by their official actions . . . .” (Gov. Code, § 81002, subd. (c); see id., §§ 81000, 87207.) As will be shown, petitioner reported on several occasions his receipt of gifts on his yearly financial disclosure statement. In reviewing the report and recommendation by the Commission, this court independently evaluates the evidence taken in the Commission proceedings and must sustain the charges of misconduct if there is clear and convincing evidence sufficient to prove them to a reasonable certainty. (Kennick v. Commission on Judicial Performance, supra, 50 Cal.3d at p. 314.) In resolving disputed issues of fact, we give special deference to the determinations of the special masters, who were best able to evaluate the credibility of the witnesses appearing before them. (Id. at pp. 314-315.) We must then determine whether the conduct found to have occurred is a basis for censure or removal and, if so, the appropriate sanction. In making the latter determinations, we accord great weight to the conclusions of the Commission, recognizing the expertise of the Commission in matters involving judicial conduct. (Kloepfer v. Commission on Judicial Performance, supra, 49 Cal.3d at p. 832; McCullough v. Commission on Judicial Performance, supra, 49 Cal.3d at p. 191.) III Before turning to the specific evidence against petitioner and the merits of the Commission’s findings and conclusions, we shall address petitioner’s threshold contention that the disciplinary proceedings before the Commission were tainted by a lack of neutrality and a strong probability of bias against him on the part of the Commission, resulting in a denial of his right to due process of law. Petitioner contends that the Commission’s combined roles as investigator, prosecutor, and adjudicator, as well as litigation adversary, created an unacceptable risk of actual bias on the part of the Commission, thereby denying him his right to due process. He maintains that the administrative procedures governing the proceedings before the Commission, in conjunction with the Commission’s efforts (collateral to its determination of the merits of the charges) to validate its order opening the proceedings to the public, resulted in an unconstitutional risk of a biased decisionmaker, because the Commission did not remain a neutral body but assumed an adversarial role during the investigatory and adjudicatory stages. Petitioner acknowledges that we rejected a somewhat similar argument in Kloepfer v. Commission on Judicial Performance, supra, 49 Cal.3d at pages 833-835, in which the subject of judicial disciplinary proceedings raised a due process challenge to the Commission’s role in the disciplinary proceedings. The judge in Kloepfer complained, as does petitioner, that the Commission did not provide a neutral forum, because the accusatory, investigatory, and adjudicatory functions were combined so that the adjudicatory process did not comport with generally accepted standards of due process. In examining this argument in Kloepfer, we turned to the principles articulated by the United States Supreme Court in Withrow v. Larkin (1975) 421 U.S. 35 [43 L.Ed.2d 712, 95 S.Ct. 1456]. In Withrow, the court observed that, in order to prevent unfairness, our legal system refuses to tolerate proceedings in which the risk of actual bias on the part of the decisionmaker is inconsistent with the guarantee of due process. In Withrow, itself, however, the court rejected a challenge to the procedures of a medical licensing board that possessed both investigatory and adjudicatory functions, concluding that, in general, it is appropriate to presume the integrity of those serving as adjudicators in an administrative proceeding, and, accordingly, that a challenge on such a ground carries a very high burden of p We concluded in Kloepfer that the challenged procedures of the Commission involved even less potential for biased decisionmaking than those upheld by the high court in Withrow. We noted that the prosecutorial function rested largely with examiners from the Attorney General’s office, that the Commission independently reviews the evidence and makes its own findings and conclusions, and that this court is the final decisionmaker and must review the evidence and independently assess its weight and significance. (49 Cal.3d at p. 835.) We therefore concluded that the procedures to which the judge objected did not create an unacceptable risk of bias either on the part of the Commission or on the part of the court as the ultimate decisionmaker. Petitioner contends that the circumstances in the present case, in which petitioner challenged the Commission’s open-hearing order in a collateral writ proceeding (see Adams I, supra, 8 Cal.4th 630), created a significantly greater risk of bias against him than the risk of bias present in Kloepfer. He argues that the Commission’s role as his opponent in that collateral proceeding, in seeking to validate the open-hearing order, converted the Commission from a neutral forum to an adversarial party. He argues that the Commission’s vigorous opposition to his attempt to vacate the open-hearing order, using as legal counsel the same attorneys who were prosecuting the charges, inevitably prejudiced the Commission against him with respect to the merits of the charges, creating a strong probability of bias against him. The Commission ordered open the hearing for the purpose, and in the interest, of maintaining public confidence in the judiciary and its disciplinary procedures, pursuant to the provisions of article VI, section 18, former subdivision (f). Having determined that the charges against petitioner involved moral turpitude, dishonesty, or corruption, and that an open hearing would best serve public confidence and the interests of justice, the Commission was bound to seek implementation of the open-hearing procedures, as one of the duties required of it under the foregoing former provision of the California Constitution predating Proposition 190. The Commission’s use of the Attorney General as legal counsel for this purpose was appropriate under Government Code section 68702, and did not create any risk of bias on the part of the Commission greater than if different counsel had been employed—any counsel retained by the Commission for this purpose would have assumed the role of advocate in representing the Commission. Not surprisingly, petitioner cites no authority in support of his contention that the Commission’s defense of its open-hearing order rendered the Commission a biased tribunal. Petitioner’s premise would lead to the absurd consequence that an administrative agency charged with adjudication of a claim in an administrative proceeding would be disqualified from performing its function whenever it was required to assert or defend its position against the claimant in a matter preliminary to a final determination of the merits of the claim. Such a result would be inconsistent with a large body of decisional law relating to administrative proceedings (see, e.g., Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047 [275 Cal.Rptr. 594]; Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12 [122 Cal.Rptr. 337]) and essentially would emasculate the ability of an agency to serve many of the functions for which it is responsible. As the high court explained in Withrow, in all adjudicatory proceedings the judge or other decisionmaker frequently renders preliminary or interlocutory orders (e.g., issuing arrest warrants based upon a finding of probable cause, or a preliminary injunction) that, except in unusual circumstances, do not give rise to a presumption of bias precluding that decisionmaker from making a finding of guilt or innocence in a criminal proceeding or a final adjudication of the merits of a dispute in a civil proceeding. (421 U.S. at p. 56 [43 L.Ed.2d at pp. 728-729].) In a related argument, relying upon remarks made by a number of Commission members during oral argument before the Commission, petitioner appears to contend that the record establishes actual bias or prejudice on the part of particular Commission members. During the course of his argument before the Commission, petitioner’s counsel noted that the disciplinary proceeding raised questions regarding public perception of the judiciary and suggested that public confidence in the proceedings would best be served if the Commission accorded serious weight to the findings and conclusions of the special masters, who diligently had heard all the evidence. Commissioner Andy Guy questioned petitioner’s counsel regarding that suggestion, asking: “If you were so interested in the public, the public outrage, why did you try to keep this thing secret from the public all the way through? No open hearing?” Commissioner Essegian noted shortly thereafter, with regard to Commissioner Guy’s comments, that “there has been a real effort here to keep everything confidential.” In closing argument, the examiner suggested that the reason petitioner had not sought to open the proceedings to the public was that he knew the public would be outraged by the truth. Petitioner contends the foregoing comments of the Commission members, considered in conjunction with the examiner’s argument, reflect the Commission’s improper consideration of the earlier writ proceeding in formulating its disciplinary recommendation. He argues that the Commission’s consideration of this collateral matter constituted an abuse of the Commission’s discretion and “tainted” the proceedings. The record fails to establish that the determination by the Commission of the appropriate disciplinary recommendation was based upon a desire improperly to penalize petitioner for having challenged the open-hearing order. The issue whether the Commission properly issued its open-hearing order was resolved in the collateral writ proceeding that remained separate in all respects from the hearing and determination of the charges on the merits. The Commission’s findings and conclusions that led to its disciplinary recommendation are based upon the evidence adduced at the hearing on the merits of the charges. The exchange between petitioner’s counsel and the commissioners at oral argument simply reflects the commissioners’ unwillingness to let counsel’s argument pass (as to how the public confidence best would be served) without testing the basis for that argument and assessing whether petitioner’s actions were truly consistent with his counsel’s position. The colloquy demonstrates a normal function of oral argument and provides no basis for the conclusion that the Commission penalized petitioner for challenging the open-hearing order. For these reasons, we conclude the record fails to support petitioner’s claim that the Commission proceedings were tainted by actual bias or prejudice against him (or by an unacceptable risk thereof), in violation of due process requirements. IV Turning to the charges against petitioner and the merits of the Commission’s findings and conclusions, we first set forth the uncontroverted factual scenario underlying a substantial portion of the allegations of misconduct. From August through October of 1985, petitioner presided over the trial in a complex civil case, Security Pacific National Bank v. Williams (Super. Ct. San Diego County, 1985, Nos. 457727 and 457728), between the named bank and James Williams, an automobile dealer. The litigation involved an action by the bank against Williams to enforce personal guaranties for indebtedness that had been executed by Williams, and a related cross-action by Williams against the bank, seeking tort damages for alleged fraud and other misconduct in the course of his transactions with the bank. Williams was represented in the litigation by Attorney Patrick Frega. The trial commenced as a jury trial but concluded as a court trial. Following the presentation of evidence, petitioner devoted approximately 100 hours to drafting his written decision. In early 1986, petitioner rendered the decision, awarding judgment in favor of Williams in the amount of approximately $5 million, expressly reserving jurisdiction to determine attorney fees and costs on appeal. Security Pacific appealed from the judgment. The matter was pending on appeal from mid-1986 to August 31, 1989, when the judgment was affirmed by the Court of Appeal in an unpublished opinion. (Security Pacific National Bank v. Williams (Aug. 31, 1989) D004365).) On January 9, 1990, the appellate court issued its remittitur. On January 22, 1990, Patrick Prega filed in the trial court a motion for attorney fees and costs on appeal. The motion was scheduled to be heard on February 27, 1990, in petitioner’s courtroom. In late January 1990, Security Pacific paid the judgment in full, including interest, in a total amount exceeding $7 million. On January 29, 1990, Frega signed an acknowledgment of satisfaction of judgment in full, as well as a waiver of attorney fees, and caused to be removed from the trial calendar the motion for fees and costs. From 1989 through 1991, petitioner engaged in five business transactions with Williams and his dealership, involving the purchase and repair of automobiles. Four of these five transactions also involved Attorney Frega. We shall consider the charges that were upheld by the Commission as framed in the four counts set forth in the notice of formal proceedings, first reciting the specific allegations and then reviewing the evidence presented before the special masters, the findings and conclusions of the special masters, and the findings and conclusions of the Commission. Count 1: Count 1 alleges that petitioner and members of his family received gifts and financial benefits from Williams, including discounts and favorable prices for the purchase of automobiles and for repairs. Count 1 sets forth seven separate incidents, including five automobile-related transactions, a celebration dinner, and the gift of a sweater. (A) The purchase of the 1986 Mercedes. Subcount (a) alleges that in early 1989, while the Security Pacific case remained pending on appeal, petitioner personally contacted Williams, requesting that the car dealer search for a used Mercedes automobile for petitioner’s wife. Williams sold a 1986 Mercedes 300E to petitioner in March 1989, personally setting the sales price at $20,537, an amount that allegedly appeared to be favorable to petitioner. The record reflects that in 1989, approximately three years following entry of judgment in the Security Pacific case, but while the case remained pending on appeal, petitioner contacted Williams, indicating that he was looking for a used automobile for his wife. At the time, petitioner had no personal or other relationship with the car dealer, other than having seen him on occasion at social events. In his answer to the formal notice, petitioner explained his motive in contacting this particular car dealer: “I contacted Mr. Williams because I did not want to deal with used car salesmen who would try to hassle or negotiate a price. I simply indicated to Mr. Williams . . . that I expected to pay fair value for it.” Williams testified that petitioner told him that he did not want any “special deal” and that Williams should “make money” on the transaction. Williams thereafter delivered to petitioner a used Mercedes 300 E, bearing approximately 57,000 miles, that had been traded in to the dealership. At the time, petitioner did not inquire regarding the purchase price. Petitioner later telephoned Williams to inform him that his wife was pleased with the Mercedes and asked Williams to inform him as to the amount that he owed. Williams personally set the base sales price at $20,537. Petitioner paid the total purchase price of $22,532.15, without further inquiry or negotiation, and without investigating the prices of comparable vehicles or otherwise attempting to determine the fair market value of the Mercedes. He indicated to Williams that he would rely upon the auto dealer’s professional judgment “if you think it’s a good car and a good deal.” Expert testimony was presented regarding the fair market value of the Mercedes, establishing that used automobile prices are determined by a number of factors, including the “Kelly Bluebook” value, the type of dealership, the mileage and condition of the vehicle, and the profit margin for the dealership. The examiners presented evidence that the sales price of $20,537 was approximately $5,000 below market value. The testimony of the former Mercedes owner, however, among other evidence, indicated that as a result of the terms of the sale of a new vehicle to the former Mercedes owner, the actual cost of the Mercedes to Williams was $18,000. At this cost, after servicing the vehicle prior to sale, the dealership realized a total profit in the range of $2,000, an amount in excess of the average profit realized on a retail used-automobile sale for the dealership. The special masters found that Williams did not confer any special benefit upon petitioner with respect to the purchase price charged for the Mercedes. In this regard, the special masters found that the amount of profit realized by Williams on the transaction was critical to the determination of whether he gave petitioner a “good deal,” and that even the examiners acknowledged that a profit in excess of $2,000 would be commercially reasonable. For these reasons, the masters concluded that the price set by Williams was not unduly favorable. The masters nevertheless concluded that petitioner’s actions in engaging in a business relationship with Williams—after rendering an enormous judgment in favor of this litigant—undermined public confidence in the judiciary, because a person aware of the circumstances of the transaction reasonably might entertain a doubt as to whether it was “tilted in [petitioner’s] favor by reason of the decision he had made.” The Commission found that petitioner initiated the Mercedes transaction with Williams with the expectation of receiving favorable treatment, and that petitioner purchased the Mercedes on terms more favorable than those normally made available to members of the general public. In this regard, the Commission found, contrary to the finding of the special masters, that the amount of profit realized by Williams on the transaction was not determinative of whether petitioner was charged a favorable price by the automobile dealer. The Commission concluded it was improper for petitioner to engage in a business transaction with Williams after awarding him a multimillion dollar judgment in a court trial, and while the case remained pending on appeal with jurisdiction reserved by petitioner for the determination of attorney fees and costs on appeal. The Commission concluded petitioner’s actions were contrary to canons 2A and 4D(5) of the Code of Judicial Conduct and characterized this misconduct as an abhorrent disregard for the integrity of the judicial office that was harmful to public confidence in the judiciary. The Commission unanimously concluded petitioner’s actions constituted prejudicial conduct. We conclude the record does not contain clear and convincing evidence that petitioner initiated the transaction with the expectation of receiving a financial favor. Petitioner’s explanation for contacting Williams rather than some other used automobile dealer (he did not wish “to deal with used car salesmen who would try to hassle or negotiate a price”) is plausible and supported by the testimony of Williams that petitioner affirmatively stated he did not seek any “special deal.” We also agree with the finding of the special masters that the record fails to provide clear and convincing evidence that petitioner paid a price for the purchase of the Mercedes that was unduly favorable to him and that would not have been offered to members of the public. The Commission’s expert testimony that the purchase price was approximately $5,000 below market value was controverted in part by expert testimony presented by petitioner, establishing that when a used Mercedes is traded to a non-Mercedes dealership, the dealership generally will seek to wholesale the vehicle as quickly as possible, rather than sell it to the general public, in order to recover immediately the dealer’s cash investment. Regardless whether petitioner received a discount or other financial benefit, however, the foregoing circumstances establish that petitioner initiated a business transaction with, and actively solicited the assistance of, Williams, a litigant in favor of whom petitioner had rendered an exceedingly large monetary judgment and, even more significantly, whose interests remained before petitioner while the case was pending on appeal. The nature of the transaction also is significant—the sale by an automobile dealership of a used vehicle, generally providing leeway for bargaining and flexibility in setting the purchase price. In so acting, petitioner violated the general proscription against conduct giving rise to the appearance of impropriety (former canon 2), including extrajudicial activities that may cast reasonable doubt upon the individual’s capacity to act impartially as a judge, and business dealings that reasonably may be perceived as exploiting the judge’s position (see former canon 5(C)). To an objective observer of the transaction, petitioner would appear to have been seeking to use his office to collect for past deeds, and to procure a benefit for himself. Both the size of the purchase, and the flexibility of the pricing in particular, likely would render the transaction questionable from the perspective of an objective observer. Petitioner’s actions would have placed in doubt his ability to act with integrity, independence, and impartiality. We therefore uphold the charge of prejudicial conduct set forth in subcount (a). (B) The celebration dinner and purchase of the Jeep. Subcount (b) alleges that in approximately February 1990, petitioner attended a dinner hosted by Frega in celebration of the satisfaction (in January 1990) of the judgment in the Security Pacific litigation (a judgment totaling, with accrued interest, in excess of $7 million). The dinner was attended by approximately 25 guests, including Williams, Frega, and members of Frega’s law firm. Frega paid for the dinner at a cost of approximately $1,500. The evidence established that Frega hosted the celebratory dinner at a restaurant. Petitioner and his wife arrived late, stayed approximately 45 minutes, and then departed. While there, they each consumed some food but no alcoholic beverages. Subcount (b) further alleges that, approximately two months after satisfaction of the judgment, and following his attendance at the celebratory dinner, petitioner contacted Williams, asking the automobile dealer to locate a used vehicle for his daughter. On or about March 22, 1990, Williams delivered a 1988 Jeep Cherokee to petitioner, setting the sales price at $13,500, totalling $14,796.74 with tax and license—an amount that allegedly appeared to be unduly favorable to petitioner. At that time, the sole consideration tendered by petitioner for the Jeep was the trade-in of a 1983 Oldsmobile, reflected on the sales invoice as having a value of $800. On April 16, 1990, petitioner paid an additional $5,000 for the Jeep. On or about June 4, 1990, “Patrick Frega, counselor at law, a professional corporation,” issued a check to Williams for $9,796.74, a sum equal to the total sales price of $14,796.74, less the $5,000 paid on April 16. A notation on the check indicated that the payment related to “Williams v. Security Pacific National Bank.” By check dated June 7, 1990, petitioner wrote a check to Frega personally in the amount of $5,672.40. The check indicated that it was a “payoff’ on the Jeep. The record reflects that at the time he contacted Williams regarding the Jeep, petitioner told the dealer he could afford to pay approximately $5,000 to $5,500 plus the trade-in value of the 1983 Oldsmobile. Williams testified petitioner emphasized that he did not want “any favors” and that the dealer should “make money” on the transaction. Williams was aware, however, that petitioner was experiencing financial difficulties as a result of the dissolution of his marriage. Approximately two weeks later, Williams delivered a 1988 Jeep Cherokee to petitioner. At the time, petitioner was aware that the value of the vehicle likely exceeded the amount he had indicated to Williams he could afford. He did not raise this issue with Williams or otherwise inquire regarding the purchase price. A few days later, petitioner telephoned Williams to confirm that he would purchase the vehicle. An invoice for the transaction dated March 22, 1990, was prepared by the dealership, listing the base price of the Jeep at $13,500, with a total sales price of $14,796.74. The invoice reflected a credit in the amount of $800 for the Oldsmobile. On May 7, 1990, the dealership sold the Oldsmobile for $800. At the time he confirmed he would purchase the Jeep, petitioner was neither presented with a sales invoice nor asked to sign any contract; no arrangements were made with Williams for payment or for financing the purchase, and petitioner was not sent a bill. Apart from the trade-in of the Oldsmobile, petitioner made no payment on the purchase price until April 16, 1990, when he paid the dealership $5,000 that he had borrowed from his father. At that time, petitioner inquired of Williams regarding the balance owed on the purchase price. Williams insisted (incorrectly) that the balance had been satisfied by the trade-in of the Oldsmobile. Petitioner testified that he simply “could not get a number out of [Williams]” but was aware that additional sums were owed. In late May, petitioner requested that Frega ascertain the balance due on the purchase of the Jeep. A few days later, when Frega reported back that petitioner owed $5,672.40, petitioner wrote a check to Frega personally for that amount. Frega testified he did not inform petitioner of the true balance owed, because Frega was aware of petitioner’s financial difficulties as a result of the pending dissolution of petitioner’s marriage. Frega therefore made a unilateral decision to “loan” petitioner the approximate $4,000 additional amount owed, with the intention of recovering the loan at a later date, and wrote a check to the dealership in the amount of $9,796.74. Williams testified that prior to the Jeep purchase transaction he had had a long-standing, ongoing “understanding” with Frega that, with respect to any customer referred by Frega to Williams, if Williams felt that “I [Williams] didn’t make enough money or if I was going to get stuck on the hook or if it was maybe the difference between wholesale and retail, that he [Frega] would take care of the difference.” At the time of the Jeep transaction, Williams considered petitioner to be a customer referred by Frega and thus covered by this understanding. The special masters found that in purchasing the Jeep from Williams, petitioner had not been seeking any financial advantage from the dealer, and concluded that petitioner had been unaware of the gift conferred upon him by Frega until after the commencement of the Commission investigation. The special masters concluded, however, that under the circumstances petitioner should have been alerted to the risk that his conduct might have endangered the public esteem in which the judiciary was held, and that his actions therefore amounted to prejudicial conduct. The Commission found that the total amount paid by petitioner (the $800 value of the Oldsmobile trade-in plus the cash payments of $5,000 and $5,672.40) was below the fair market value of the Jeep. The Commission concluded that it was misconduct for petitioner to engage in the Jeep transaction with Williams in light of the circumstances that petitioner had entered a multimillion dollar judgment in favor of Williams that recently had been paid in full and recently had attended a celebration dinner occasioned by satisfaction of the judgment. Contrary to the finding of the special masters that petitioner had not been seeking any financial advantage, the Commission found that petitioner had initiated this transaction with Williams in the expectation of receiving favorable treatment, and that in fact he received benefits that a member of the general public would not have received, both in the manner in which the transaction was conducted and the price that was charged. The Commission unanimously concluded that petitioner’s actions both with regard to his purchase of the Jeep and his attendance at the celebratory dinner were contrary to current canons 2A and 4D(5) and constituted prejudicial conduct. Clear and convincing evidence supports the charges of misconduct alleged in subcount (b) of count 1, and we adopt the conclusion of the Commission that petitioner engaged in prejudicial conduct. As with the transaction involving the purchase of the 1986 Mercedes, petitioner’s conduct in initiating a transaction with the automobile dealer, in this instance shortly following the payment in full of the substantial judgment in the Security Pacific litigation, violated the proscription of former canons 2 and 5 against conduct giving rise to the appearance of impropriety. Petitioner’s testimony that he thought he would be getting a “fair deal” from the dealer (rather than a “special deal”) is not inherently incredible, and we defer to the findings of the special masters that petitioner did not initiate the transaction with the expectation of receiving favorable treatment. To a member of the public, however, petitioner’s actions, shortly following the euphoria surrounding satisfaction of a multimillion dollar monetary judgment rendered by petitioner in a court trial, readily could be construed as an attempt by petitioner to exploit his judicial office for personal advantage. Although petitioner insisted that he wished to pay fair market value for the Jeep, his insistence could well be viewed as disingenuous under the circumstances, particularly where Williams had delivered the vehicle to him without presenting a sales contract or otherwise setting the purchase price, and did not require immediate payment. Furthermore, the record provides clear and convincing evidence that petitioner received favorable terms in the manner in which the transaction was handled—terms that would not have been afforded to members of the public. He was not required to sign a sales contract, and he made payment on the purchase price on a schedule of his own choice rather than in accordance with the method of payment generally required by the dealership for similar purchase transactions. Regardless whether petitioner had actual knowledge that he had not paid fair market value for the Jeep, or that Frega had paid the balance owed on the purchase price, petitioner’s reliance upon Frega to finalize the transaction strongly suggested impropriety. Frega represented Williams, the litigant in favor of whom petitioner had awarded the multimillion dollar judgment following a court trial, and, pursuant to a contingency fee arrangement, Frega had a 40 percent interest in the amount of the final judgment following affirmance on appeal. Additionally, matters involving the Frega firm frequently came before petitioner. The record establishes that, in placing himself in Frega’s hands, petitioner deliberately ignored the strong possibility that Frega ultimately would arrange for petitioner to pay less than fair market value for the Jeep, a favor that Williams already had attempted to confer upon him. Thus petitioner’s conduct readily could be construed as an attempt to collect for judicial services rendered in the Security Pacific litigation, and otherwise to use his judicial office to advance his personal interests. To an objective observer, petitioner’s integrity and impartiality would appear to have been placed in doubt. We also adopt the conclusion of the Commission that petitioner’s attendance at the dinner given in celebration of the satisfaction of the judgment in the Security Pacific litigation constituted prejudicial conduct. Again, regardless of petitioner’s motives, or of whether he was biased or impartial in the judicial proceedings involving the Security Pacific litigation, his attendance at the dinner indisputably gave rise to the appearance of partiality in favor of a litigant and his attorney whose very substantial interests had come before him. Under these circumstances, the dinner could not be characterized as ordinary social hospitality within the meaning of former canon 5C(4)(b). (C) The Jeep repair. Subcount (c) alleges that in or about November and December 1991, Williams’s dealership performed repairs on petitioner’s daughter’s Jeep. The dealership discounted by 10 percent the cost of parts and labor, resulting in a balance due of $8,500. On December 9, 1991, petitioner paid Williams $7,000. On that same day, “Patrick Prega, counselor at law, a professional corporation,” issued a check to Williams’s dealership in the amount of $1,500 toward payment of the bill. The evidence established that the Jeep had been severely damaged in an accident. Petitioner contacted Williams regarding the cost to repair the vehicle and was informed it would range from $8,000 to $8,500. Petitioner expressed his displeasure with the estimate, indicating it would make more sense economically to scrap the vehicle for salvage value. Williams replied he would investigate the availability of used parts, which would lower the cost of repairs. Williams ultimately directed the preparation of a repair order estimate that would not exceed $8,500. Prega subsequently informed petitioner that Williams had advised him the repairs could be performed at a cost of $7,000. Because of his earlier conversation with Williams, petitioner assumed Williams had found used parts for the repairs. He telephoned Williams and authorized him to proceed. Williams’s dealership sent a bill in the amount of $8,500 to petitioner’s former residence, where his ex-wife continued to reside with their children. In December 1991, three weeks after the Jeep was delivered to petitioner’s daughter, petitioner paid Williams $7,000. Without petitioner’s knowledge, Frega wrote a check to the dealership in the amount of $1,500 for the balance owing. The special masters found that Williams had billed the cost of repairs at $8,500 but had not sent the bill to petitioner, and that petitioner reasonably believed the cost of repairs was $7,000. The masters further found that the $8,500 bill resulted in a substantial gross profit for Williams, and that even at a charge of $7,000, Williams still would have realized a gross profit of more than $1,700, so that Williams had not conferred any special benefit upon petitioner. The masters further found that prior to the investigation petitioner had not had any knowledge of the $1,500 payment made by Frega. The masters finally concluded, however, that petitioner’s actions constituted prejudicial conduct because of the risk of the appearance of impropriety. The Commission concluded that the Jeep repair transaction was “not handled in the manner that repair transactions involving members of the general public were handled,” noting the circumstances that petitioner had not been required to make payment immediately upon delivery of the vehicle, and that Frega had been involved in the transaction. The Commission found that petitioner initiated this transaction with the expectation of receiving favorable treatment, and concluded that it was improper for petitioner to engage in a business transaction with Williams, particularly in view of the circumstance that petitioner was aware that Williams previously had attempted to confer a special favor upon him in connection with the purchase of the Jeep. The Commission concluded that petitioner’s actions with regard to the Jeep repair were contrary to canons 2A and 4D(5), demonstrated a lack of integrity, and constituted prejudicial conduct. We conclude the record fails to provide clear and convincing evidence that petitioner initiated this transaction with Williams with the expectation of receiving favorable treatment. Petitioner’s choice of Williams to perform the repairs was logical in light of the circumstance that Williams’s dealership had sold him the Jeep and the urgency of the situation (the Jeep had to be towed from the scene of the accident to a body shop). The record also supports the finding of the special masters that petitioner reasonably believed that the cost of the repairs was $7,000, in light of his previous conversations with Williams. We also defer to the finding of the special masters that the $7,000 price paid by petitioner was commercially reasonable, in light of the evidence indicating that it resulted in a substantial markup for Williams above cost. A colloquy between petitioner’s counsel and Williams at the hearing before the masters is illuminating in this regard: “[Counsel]: How far would you go down on a deal in an ordinary business setting, you know, somebody you didn’t know that brings a car in for repair that they’ve purchased from you, what percentage of mark-up over your cost would you go down to before you’d let them take the deal—the repair somewhere else? [¶] [Williams]: If I got involved, I would let them come down to somewhere in the neighborhood of around 40 percent. [Counsel]: Okay, so you could make 15, $1,800 on a repair like this, rather than lose the deal, you’d take that? [Williams]: Sure.” (Italics added.) We also defer to the finding of the special masters that petitioner was truthful in his testimony that he was unaware of Frega’s $1,500 contribution toward the repair bill. As with the Jeep purchase transaction, however, petitioner’s reliance upon Frega for the financial arrangements, in view of his relationship with this attorney and the frequency with which Frega’s interests came before petitioner, clearly was improper. Regardless whether petitioner had knowledge of Frega’s payment, his failure to obtain a bill for the repairs directly from Williams, and his reliance upon Frega to verify the cost, reflect that petitioner turned a blind eye toward the possibility of receiving special treatment, whether from Williams or Frega, or from both men. To an objective observer, petitioner would appear to have been seeking to use his judicial office to advance his personal interests, placing in doubt both his independence and his integrity. We therefore conclude the record supports the charge of prejudicial conduct with regard to this incident. (D) Rental car. Subcount (d) alleges that in 1991, Williams’s dealership and Frega arranged for a rental car for petitioner’s daughter while her Jeep Cherokee was being repaired. In January 1992, Frega paid the $1,063.53 bill for the car rental. The evidence established that, after petitioner’s daughter visited Williams’s dealership to discuss the repair of the Jeep, she was transported in a shuttle bus from the dealership to a rental car agency. After the agency informed her that because she “wasn’t old enough, that there might be problems” in obtaining a rental car, she returned home (where she resided with her mother, petitioner’s ex-wife). She later telephoned petitioner at the courthouse to inform him that she had been unsuccessful in obtaining a vehicle for her use while the Jeep was being repaired. Petitioner telephoned Prega, inquiring whether Williams’s dealership had “loaner cars,” and Prega responded that they did, advising that he would look into the matter. Prega subsequently arranged for a rental in his name, authorizing use of his American Express card as security for the bill. Petitioner was aware his daughter had been provided with a vehicle for use during the course of the repairs but testified that prior to the investigation he had been unaware of the financial arrangements. The special masters concluded that petitioner’s conduct relating to the automobile rental constituted prejudicial conduct. The Commission found that petitioner had engaged in misconduct in contacting Prega regarding the rental, and specifically in asking the attorney to intervene under circumstances where a “loaner” previously had been refused to petitioner’s daughter. The Commission further found that petitioner had received a special benefit in the manner in which the rental transaction was handled. The Commission concluded that petitioner’s actions with regard to the automobile rental were contrary to canons 2A and 4D(5), demonstrated a lack of integrity, and constituted prejudicial conduct. Clear and convincing evidence supports the Commission’s findings, which in turn support the conclusion that petitioner engaged in prejudicial conduct. Regardless whether petitioner had knowledge of the financial arrangements involved in the automobile rental, including Prega’s payment of the bill, petitioner’s actions in contacting Prega and permitting him to intervene in a transaction involving Williams strongly suggest that petitioner was seeking to use his judicial office to advance his personal interests and those of a family member. Petitioner’s conduct also permitted the inference that Prega was in a special position to influence petitioner, another violation of the Canons of Judicial Ethics. (E) The detailing and rims for the 1981 Mercedes. Subcount (e) alleges that in 1991, Williams gave petitioner “a set of wheels” for petitioner’s 1981 Mercedes. In May 1991, when Williams’s dealership had detail, refinish, and polish work performed on the Mercedes at a cost of $511.82, Prega paid the bill. The evidence established that in May 1991, shortly before petitioner and his wife left for a one-month vacation abroad, petitioner arranged to leave the 1981 Mercedes at Williams’s dealership to have detailing work performed in his absence. He arranged for Prega to meet him at the dealership so that Prega could drive him home. When petitioner and Prega met with the “fleet manager,” petitioner advised the manager to contact Prega if any questions arose in his absence regarding the work to be performed. The job was completed at a cost of $511. Without authorization, Williams also had an old set of Mercedes rims placed on the vehicle. The fleet manager instructed the body work department to bill Prega, and a bill for $511 for buffing and polishing was sent to him. Prega paid the bill in July 1991. After the vehicle was delivered to petitioner’s residence, petitioner upon his return from vacation noticed the replacement rims. He then telephoned Williams, told him the work was acceptable, and asked him to send a bill. Petitioner, however, never was billed and never paid for any of this work. The special masters concluded that petitioner’s conduct amounted to prejudicial conduct. As with the prior transactions with Williams, the Commission also determined that petitioner had engaged in misconduct, particularly in making no effort to ensure that he received a bill or paid for this work. The Commission concluded that petitioner’s actions with regard to this transaction were contrary to canons 2A and 4D(5), demonstrated a lack of integrity, and constituted prejudicial conduct. Clear and convincing evidence, set forth above, supports the findings and conclusions of the Commission, which we adopt as our own. (F) The gift of a sweater from Williams. Subcount (f) alleges that in December of 1990 (the year Williams received satisfaction of his multimillion dollar judgment), Williams gave petitioner a gift of a sweater, which petitioner accepted. Petitioner reported the gift of the sweater, valuing it at $150, on his financial disclosure statement. The special masters concluded that the incident was of de minimis importance and that petitioner’s mere failure to return the gift did not amount to prejudicial conduct. The Commission reached a different conclusion, observing that because the gift was from a litigant in favor of whom petitioner had awarded a multimillion dollar judgment, and was given the same year the judgment was paid (shortly after petitioner attended a dinner in celebration of that payment), petitioner’s acceptance of the gift constituted prejudicial conduct. We agree with the conclusion of the Commission. Although petitioner did not solicit the gift, under the circumstances it was incumbent upon him to return it to Williams in order to avoid any doubt regarding the judge’s independence or any appearance of impropriety. In conclusion, we find that clear and convincing evidence supports the numerous charges of prejudicial conduct set forth in count 1 that were sustained by the Commission. Count 2: Count 2 alleges that petitioner received gifts from attorneys, including Frega, whose interests had or were likely to come before the judge. In proceedings (including settlement conferences) involving these attorneys, petitioner failed to disqualify himself or make full disclosure on the record of his relationship with these attorneys or their firms, or to obtain a written waiver of disqualification. In particular in cases where petitioner’s sole involvement was to preside over settlement conferences, he failed to make adequate disclosure of his relationship with these attorneys or the gifts he had received from them. We shall address each of the instances of charged misconduct that were sustained by the Commission. (A) Gifts and favors from Frega. In 1987, Frega was honored by the San Diego Trial Lawyers Association as “trial lawyer of the year,” as a result of his success in the Security Pacific litigation. Frega asked petitioner to present the award to him at an awards dinner. Petitioner was unable to attend the dinner but agreed to take a “rain check.” Frega and his wife took petitioner and his wife to the “rain check” dinner (the term alleged in count 2) on July 2, 1987. On his financial statement filed for that year, petitioner reported the value of the dinner at $100. Count 2 further alleges that petitioner reported accepting a loan of Frega’s computer from December 1, 1987, to June 30, 1988, and from November 1, 1989, to December 31, 1990, valuing the loans at $1,300. Count 2 additionally alleges the monetary gifts and payments made by Frega in connection with the automobile-related transactions that comprise the charges set forth in count 1. The record reflects that at the “rain check” dinner, petitioner discussed with Frega a novel that petitioner was writing, and the two men agreed informally to collaborate on the novel. At the time of this dinner, the Security Pacific case was pending on appeal, with petitioner having reserved jurisdiction to determine attorney fees and costs on appeal. Additionally, petitioner was acting as the settlement judge in a case involving the Frega firm, and was assigned as judge for all purposes in another case in which Frega’s firm represented several of the plaintiffs. Previously, in 1986 and 1987, petitioner had been the settlement judge in a case involving the Frega law firm, in which Frega’s clients received in excess of $500,000 in settlement proceeds. To facilitate the writing of the book, petitioner accepted the loan of Frega’s laptop computer, reporting the value of the loan in the financial disclosure statements filed by petitioner for consecutive years. During the period of the loan of the computer to petitioner, a personal friendship developed between the two men, and six cases in which one or more of the parties were represented by Frega’s law firm were pending before petitioner. All six of these actions were settled on terms under which the parties represented by Frega’s law firm received substantial, and in some cases multimillion dollar, sums in settlement proceeds. In 1988, after their personal friendship had developed, petitioner informed Frega that he no longer would preside over any matter in which Frega appeared. Frega paraphrased pet