EVOLUTION OF JUDICIAL TYRANNY:

"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This
case illustrates to me the serious consequences to the Bar itself of not
affording the full protections of the First Amendment to its applicants for admission.
For this record shows that [the rejected attorney candidate] has many of the
qualities that are needed in the American Bar. It shows not only that [the
rejected attorney candidate] has followed a high moral, ethical and patriotic
course in all of the activities of his life, but also that he combines
these more common virtues with the uncommon virtue of courage to stand by his
principles at any cos
t.



It is such men as these who have most greatly honored the profession of the
law. The legal profession will lose much of its nobility and its glory if it is
not constantly replenished with lawyers like these. To force the Bar to become a
group of thoroughly orthodox, time-serving, government-fearing individuals is to
humiliate and degrade it.”
In
Re Anastaplo,
18 Ill. 2d 182, 163 N.E.2d 429
(1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong
dissent
,
366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan,
dissenting.



“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

Wednesday, November 1, 2017

New York acknowledges that the trial judge may not decide an appeal from his own decision - but abstains from calling judicial misconduct judicial misconduct.

On October 24, 2017, the top court of the State of New York acknowledged that there is a due process, constitutional, violation for a trial judge to review an appeal from his own trial decision.

From the decision of the New York Court of Appeals, I have learnt, with astonishment, that the New York Court system allegedly tries to "purge" judicial bias, and even appearance of such bias from its system.

To support that interesting contention, the court makes references to multiple rules.

==


"Because this is a constitutional matter, the People's argument that County Court committed no statutory violation misses the mark. In any case, while there currently exists no explicit statutory or constitutional provision in New York prohibiting judges from reviewing their own judgments on appeal,[FN1] our laws and court rules have long sought to purge actual bias and the possibility of bias from our courtrooms (see e.g. Judiciary Law § 14 ["A judge shall not [*4]sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which [the judge] has been attorney or counsel, or in which [the judge] is interested, or if . . . related by consanguinity or affinity to any party to the controversy within the sixth degree."]; 22 NYCRR 100.2 ["A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities[.]"]; 22 NYCRR 3[E][1] ["A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."]). Although there was no evidence of partiality here, due process must still safeguard the appearance of impartiality to promote public confidence in the courts."

==

The New York State Court of Appeals obviously forgot to mention, trying to keep face in an absolutely atrocious situation when a judge refused to recuse from reviewing an appeal from his own decision (which he had to do under both Judiciary Law 14 and 22 NYCRR 100.2 and 22 NYCRR 3(e)(1)) that all of these three authorities they cite to:

Judiciary Law 14;
22 NYCRR 100.2;
22 NYCRR 3 (e)(1) 

are stillborn provisions, because:


  1. there is no mechanism of enforcement of these provisions in the State of New York but a motion to recuse;
  2. the motion to recuse is reviewed by the same judge who is sought to be recused;
  3. judges who are sought to be recused routinely punish attorneys and parties for making such motions;
  4. attorneys are stripped of their law licenses for making such motions - see cases of John Aretakis in 2008, suspension for criticism of a judge in criminal proceedings, and of myself, suspension for criticism of a judge in motions to recuse in civil proceedings in 2015 - different methods were used in civil and criminal proceedings, but the result was the same, suspension of attorney's law licenses based on sanctions of a judge disgruntled by a motion to recuse,
  5. despite mandatory language of all three of these rules ("shall", "shall not"), courts deem it within the "discretion" of the very judge whose recusal is sought to decide whether to recuse or not, after "searching his own conscience".
  6. what constitutes the judge's "interest" in the case under Judiciary Law 14 is interpreted by judges in favor of judges in an extremely permissive way - you will never be able to prove a disqualifying "interest", no matter how common sense it would be;
  7. as to disqualifying "consanguinity or affinity" "within the sixth degree" in accordance with Judiciary Law 14 - guess what, judges do not publish their family trees and do not make disclosures as to who they befriend, date, or sleep with, and many judges and their spouses have different last names, and I wonder why would that be but to make detection of such an association more difficult.
It is a good decision - but a very narrow decision.

It was decided on a very narrow issue, whether a judge deciding a case at the trial level without a jury may unilaterally decide an appeal from his own decision.

It is not clear whether the same would be permitted if it were a jury trial, and whether it would be permitted if the judge was not single judge deciding the appeal, but was a member of an appellate court panel.

Nor did the court reach the issue of the obvious judicial misconduct, when a judge failed to recuse when he saw his own signature on the verdict in the record on appeal.

Appeals are made on records, and there is no point arguing - as an attempt was made during oral arguments in the New York State Court of Appeals - that the judge in question had so many cases that he ostensibly "forgot" that he decided a particular case as a trial judge.

If he "forgot", that only means that he did not read the record on appeal where his name was on the bottom of the verdict.

What did not help is unsworn testimony of appellate attorney during oral argument where the attorney conceded points on behalf of their clients that the judge in question was "fair through and through" according to attorney's personal knowledge, see also that same statement in the official court webcast, here.



That allowed the Court of Appeals to skip the obvious issue of judicial misconduct and state that "there was no evidence of partiality here".

As I said before, an appellate attorney has no right to testify in an appellate oral argument, no right to add her personal experiences to the record, and no right to concede her client's major points (presence of actual bias, which was very likely in this particular case) because of her personal views, experiences, interests in keeping in the good graces of a judge, a former colleague, before whom she is bound to appear in the future in cases of other clients.

The judge in question, who is, quite "coincidentally", the particular defense attorney's former law school classmate and colleague, owes the defense attorney - she acted contrary to her client's best interests and saved his ass, which could otherwise have been grilled by the Court of Appeals, the Commission of Judicial Conduct.

This case is still a unique case.

For the first time the New York State Court of Appeals recognized - not in so many words though - that a judge HAD to recuse from a case on constitutional grounds.

Of course, there was no need to go into constitutional grounds here, it was a matter of common sense.

Does any person in their right mind order audit of a company by the same company?

Of an accountant by the same accountant?

Why, then, judges are "masters" of their own recusal?

Why do they get to decide whether they SHALL stay or go?  Why it is their whim - choice - "discretion" to decide?

Especially when, as the same New York State Court of Appeals suddenly acknowledged in People v Novak, 


What constitutes a "basic requirement of due process" is at the same time a DISCRETION (whim, choice) of the presiding judge who are challenged for actual bias or appearance of bias - or for misconduct - in a motion to recuse?

What kind of mangled mind should a person, much less a jurist, possess to arrive at that decision - and that's how New York courts ROUTINELY decide such issues.

Even in this case, the obvious issue of ACTUAL bias, of the judge SEEKING OUT the case which he decided on appeal and knowingly doing an audit of his own decision was simply skipped by the court, through a claim that "there is no evidence of partiality here" because of the appellate counsel's concession of that point.

Of course, the taste of the pudding in the eating.

We have a lot of beautiful precedents on the issue of judicial disqualification on due process grounds - all of which are usually rejected by courts, often with sanctions (as it was in my case when I quoted the same case, In Re Muchison, which the Court of Appeals cited to in People v Novak).

This one, most likely, will be no different.  It is a victory in one case, a victory on paper, legally a precedent, but I doubt that the judiciary will be any harder on itself than before, when the judiciary, while giving itself the gift of immunity for malicious and corrupt acts on the bench, also deemed itself a master of its own recusal, and where judges routinely allow themselves to "search their own consciences" in order to decide whether they are biased or corrupt or not.

Imagine if you get to decide - as a matter of law - if you are biased or corrupt.

What a joke.

I urge my readers to send me examples of citations to and enforcement of this case, People v Novak, and of constitutional principles of recusal it announced.

I will publish your examples and comment on them.

Stay tuned.



Sunday, October 29, 2017

Russia tries hard to step on the same rake that already deprived Americans of independent court representation. The case of attorney #VitaliyBurkin and expansion of attorney monopoly in Russia - with the urging of the American Bar Association

Since its inception in 2014, this blog is dedicated to promoting independence of court representatives, the in the United States and not only.

I repeatedly write about cases when such independence is infringed upon and especially in cases where attorneys are disciplined for criticism of their own regulator (in the U.S.) - courts and judges.

Punishment of attorneys in the U.S. for criticism of the judiciary have become a practically routine occurrence.  I wrote about some statistics of that "phenomenon" here

I will repost the names of attorneys I know from my own research and from research of law professor Margaret Tarkington here.

Prof. Tarkington in her law review article on attorney speech lists 48 cases from 28 states where attorneys were sanctioned for criticism of judges, from 1877 to 2007.
Kansas1877In re Pryor, 18 Kan. 72
California1911In re Shay, 160 Cal. 399
New Jersey1930In re Glauberman, 107 N. J. Eq. 384, 152, Atl. 650
California1934In re Friday, 138 Cal. App. 660, 32 P.2d 1117
Wyoming1945State Board of Law Exam'rs v. Spriggs, 155 P.2d 285
Iowa1964In re Glenn, 256 Iowa 1233
New Mexico1966In re Meeker, 76 N.M. 354, 414 P.2d 862
Nevada1971In re Raggio, 87 Nev. 369
Florida1973In re Shimeck, 284 So. 2d 686, 690
Iowa1976In re Frerichs, 238 N.W.2d 764, 769-70
South Dakota1979In re Lacey, 283 N.W.2d 250
California1980Ramirez v. State Bar of Cal., 28 Cal.3d 402
Iowa1980Comm. On Prof'l Ethics and Conduct of the Iowa State Bar Ass'n v. Horak, 292 N.W.2d 129
Kentucky1980Ky. Bar Ass'n v. Heleringer, 602 S.W.2d 165, 168
Kentucky (another)1980Kentucky Bar Ass'n v. Nall, 599 S.W.2d 899
Louisiana 1983La. State Bar Ass'n v. Karst, 428 So.2d 406
Tennessee1983Farmer v. Board of Prof'l Responsibility of the Sup. Ct. of Tenn., 660 S.W.2d 490
Maryland?1986In re Evans, 801 F.2d 703 (4th Cir. 1986) (disbarred from USDC for district of Maryland), footnote 15
Tennessee1989Ramsey v. Board of Professional Responsibility of the Supreme Court of Tennessee, 771 S.W.2d 116
Minnesota1990In re Graham, 453 N.W.2d 313
Missouri1991In re Westfall, 808 S.W.2d 829, 833-34
New York1991In re Holtzman, 78 N.Y.2d 184
West Virginia 1991Committee on Legal Ethics of the W. Va. State Bar v. Farber, 408 S.E.2d 274
California1993Peters v. State Bar of Cal., 219 Cal. 218
Indiana1993In re Becker, 620 N.E.2d 691
Washington?1993S. Dist. Ct. for E.D. of Wash. V. Sandlin, 12 F.3d 861 (9th Cir. 1993)
Indiana 1994In re Antanga, 636 N.E.2d 1253 
Indiana (another)1994In re Garringer, 626 N.E.2d 809
California?1995Standing Committee on Discipline for the U.S.Dist. Ct. for the Cent. Dist. Cal. V. Yagman, 55 F.3d 1430, 1437 (9th Cir. 1995)
Idaho1996Idaho State Bar v. Topp, 129 Idaho 414
Iowa 1996Iowa Sup. Ct. Board of Prof'l Ethics and Conduct v. Ronwin, 557 N.W.2d 515
Kentucky1996Ky. Bar Ass'n v. Waller, 929 S.W.2d 181 
Indiana1999In re Reed, 716 N.E.2d 426 
Delaware2000In re Guy, 756 A.2d 875
Florida2001Fla. Bar v. Ray, 797 So.2d 556
Indiana2001In re McCellan, 754 N.E.2d 500 ("McClellan" in fn 39)
Indiana2002In re Wilkins, 777 N.E.2d 714
Kansas2002In re Arnold, 274 Kan. 761
Ohio2003Office of Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 793 N.E.2d 425
Louisiana2005In re Simon, 913 So.2d 816
Massachussetts2005In re Cobb, 445 Mass. 452
Michigan 2006Grievance Administrator v. Fieger, 719 N.W.2d 123
Minnesota2006In re Charges of Unprofessional Conduct involving File No. 17139, 720 N.W.2d 807
Arkansas2007Stilley v. Sup. Ct. Comm. On Prof'l Conduct, 370 Ark. 294
Delaware2007In re Abbott, 925 A.2d 482
Kansas2007In re Pyle, 283 Kan. 807, 156 P.3d 1231
Utah 2007Peters v. Pine Meadows Ranch Home, 151 P.3d 962
Utah (another)2007Utah v. Santana-Ruiz, 167 p.3d 1038, 1044

Additionally, through my own research I found 33 cases from 14 states:

John E. Wofgram
California
Attorney challenging the concept of judicial immunity as unconstitutional and who sided with the "Jail for Judges" movement seeking state constitutional amendments to abolish judicial immunity - by legal process
1989
Dr. Richard Fine
California
Disbarred, incarcerated and held in solitary confinement for exposure of judicial corruption
2009
George Sassower
New York
Disbarred for exposing judicial corruption, held in contempt, bankrupted
1988
Doris Sassower
New York
Suspended after she filed an appeal of a dismissal of lawsuit on behalf of clients challenging impropriety of cross-endorsing judges by multiple parties in judicial elections
1991
Doug Schafer
Washington
Suspended for reporting judicial corruption
2003
Barbara Johnson
Massachussets
Disbarred after she ran for the seat of the State Governor on a platform of judicial reform and cleaning up judicial corruption
2006
Eugene Wrona
Pennsylvania
disbarred for calling a judge a "domestic terrorist"
2006
Zena Crenshaw-Logal
Indiana
Suspended for “making false allegations against judges”
2007
John A. Aretakis
New York
The attorney who exposed child molestation by Catholic priests, was suspended for making motions to recuse and defaming the Catholic priests
2008
David Roosa
Sean Conway
New York
Florida



Criticized a judge for misconduct in assigning cases only to attorneys who will not do discovery, motions and trials for their clients

Suspended for calling a criminal court judge who gave only a week to prepare for a criminal trial after indictment, an "evil, unfair witch"
2009
Andy Ostrowski
Pennsylvania
Criticized and continues to criticize judicial misconduct in publications and a radio show, ran for the U.S. Congress on the platform of judicial reform, is being repeatedly denied reinstatement on those grounds
2010
Lanre Amu, a Nigerian lawyer
Illinois
Made a complaint against a Circuit Judge
2011
Frederick J Neroni
New York
Disbarred after his law partner and wife criticized a judge for apparent bribery, the judge's former law parnter, a local criminal prosecutor, threatened Mr. Neroni to withdraw a criminal appeal raising the same issues, not to "burn the bridges", Mr. Neroni was disbarred after he refused to do that
2011
Jeffrey Norkin
Florida
suspended in 2013 "for making threatening and disparaging statements to a judge", and then disbarred
2013
Leon Koziol
New York
repeatedly denied reinstatement for testimony against judicial corruption before the Moreland Commission, publications and rallies criticizing judicial misconduct in Family Courts
2013
Don Bailey
Pennsylvania
Criticized federal judges in pleadings
2013
Connecticut
2014
Kenneth Ditkowski
Illinois
Suspended for criticizing judicial corruption in probate courts
2014
Paul Ogden
Indiana
suspended for an e-mail criticizing a judge, ordered to pay giant disciplinary cost of proceedings
2014
Maryland
Suspended for impugning integrity of judges and disciplinary prosecutors
2014
Michele MacDonald Shimota
Minnesota
Was arrested in the courthouse by order of a judge she sought to recuse and sued, sexually abused in the holding cell, forced into a wheelchair, stripped of glasses, shoes, files, wheeled into the courtroom and forced to represent a client this way
2014
Robert Grundstein
Washington
Disbarred for criticism of judicial corruption in Ohio courts
2014
West Virginia
Suspended for 3 months for criticizing judges
2014
Erwin Rosenberg
Florida
Suspension time increased from what was recommended after attorney moved to disqualify the judge-referee
2015
JoAnne Marie Denison
Illinois
Suspended for 3 years for exposure of corruption in probate courts through blogs
2015
Nanine McCool
Louisiana
Disbarred after running for a judicial seat, then criticizing a judge in motions to recuse
2015
Tatiana Neroni
New York
Suspended for criticizing a judge for apparent misconduct and corruption in motions to recuse
2015
Kathleen Kane
Pennsylvania
revealed judicial and prosecutorial misconduct in e-mails, was suspended by the judge she outed, the judge resigned after suspending her
2015
Kevin A. McKenna
Rhode Island
Suspended for 1 year for criticism of judges
2015
Texas
An attorney who exposed misconduct of Judge Sharon Keller who refused the last-minute death appeal by a statement "we close at 5" - was held in contempt and blocked from appearing in death penalty cases
2015
Russel Stookey
Georgia
Charged with a felony for seeking public records of a court operating account to expose judicial misconduct
2016
Christine Mire
Louisiana
Suspended for well-founded criticism of a judge, based on documentary evidence and testimony of witnesses that indicated that the judge altered or caused to alter court audio files of a judicial proceedings protecting herself from allegations that she did not disclose the judge's irreconcilable conflict of interest
2016
Ty Clevenger
Texas
attorney who exposed sexual misconduct of federal judge Walter Smith and insisted on reopening of his case and speeding investigation once the case was reopened
2016

Conceptual support of such punishment is exceptionally poor. 

After all, the 1st Amendment prohibits infringement upon speech, and the prohibition is absolute.

Of course, the U.S. Supreme Court, as it usually does, did invent exceptions to the U.S. Constitution and the Bill of Rights and amended the Bill of Rights by inventing, instead of a direct prohibition to infringe upon the freedom of speech, "tests" as to when such infringement is prohibited, and when it can be allowed.

But, even under the U.S. Supreme Court's jurisprudence, content-based regulation of speech must be subject to the highest levels of scrutiny, the strict scrutiny - and that applies to even the type of speech that the U.S. Supreme Court gives the lowest type of protection, commercial speech.

Not in cases of attorney discipline though. 

The U.S. Supreme Court routinely refuses to hear such cases, thus allowing states courts and lower federal courts to keep a fear grip on the bar and undermine independence of court representation.

After all, it is unreasonable to expect from an attorney such a level of self-sacrifice (and sacrifice of his family's well-being, too) that, for the sake of faithful representation of one client he would risk losing years of investment of time, effort and money into his profession. 

It is not reasonable to expect an average attorney to accept that risk of losing his attorney status, especially in the country where a motion to recuse a judge may land you without a law license, as it regularly happens in the U.S. (in the case of John Aretakis in New York, Christine Mire in Louisiana and many others) and blacklisted not only from working in a law office, even as a driver or a plumber, but also from all other regulated professions - which take in the U.S., by conservative assessments, from 25% to 30% of the market.

In other words, if you criticize a judge, you risk leaving yourself without any ability to earn a decent income for life.

The situation is aggravated by the fact that, as regulators of attorneys, American courts invented or pushed through legislatures (also permeated by attorneys as senators and advisers to senators) laws restricting or eliminating attorneys' rights to appeal disciplinary decisions. 

And, since the U.S. did not fully ratify the International Covenant for Civil and Political Rights, there is no possibility for disciplined American attorneys to obtain or even seek an out-of-the-country review of such decisions, stripping them of their livelihood for doing their job as attorneys and citizens - as attorneys from other countries, including Belarus and Russia, may do.



Not so in the U.S. 

With


  • no meaningful court review,
  • no right to a jury trial,
  • no right to appeal,
  • a review of attorney disciplinary cases by competitors and not by consumers of the attorney and without any decisionmaking authority by consumers of attorney's services, and with
  • the statistics of the overwhelming majority of disciplinary cases against attorneys disciplined for criticism of the judiciary decided against attorneys, attorneys are forced to operate in a self-preservation mode. 
And keep their heads low as far as criticism of the judiciary goes.

To the point of letting known bad violations of human rights proceed - as it happened in Kids-for-Cash scandal in Pennsylvania - rather than criticize a judge, as Professor Jonathan Turley and Indiana attorney Paul Ogden (himself punished for criticism of the judiciary) point out.

Attorneys are not only deadly afraid to report judicial misconduct - ask a law professor what to do if a judge in front of you is committing misconduct, and he will tell you (as professors told many of my readers who asked that question) that to report judicial misconduct or challenge it in any way would be a "professional suicide" - they are proud of their "record" of never reporting judicial misconduct.

For example, one attorney I interviewed recently about his ordeal with trying to get open records for his client from the court system and getting arrested instead, proudly stated that he has never complained about judicial misconduct of any judges, even when that misconduct hurt him personally.

Given that the attorney practiced for a lifetime, and, naturally, must have seen a lot of judicial misconduct, especially after 1978, when American judges granted themselves immunity from malicious and corrupt acts, and judicial misconduct was thus encouraged, that proud statement did not sound that good.

Rather, it was a sign of operating, for a lifetime, in a forced self-preservation, survival mode, the so-called "defensive lawyering" - as compared to "defensive doctoring", doing certain procedures not to help the patient (client), but to, at the same time, charge money and protect yourself from punishment.  That's not a good thing - not in doctoring, not in lawyering. 

And, that is definitely not a good sign for consumers of legal services in need of a rigorous defenders of their constitutional right to impartial judicial review, and their constitutional right to a vigorous court defense in cases fought in court against the government, a powerful opponent with unlimited financial resources.

It is understandable that lawyers do not pay money for their law education to become penniless martyrs because of one case where a motion to recuse needs to be filed, and, as a result, that there are not many kamikazes who would want to criticize a judge, no matter how badly the client's case requires it.

The bar across the country is intimidated and trembling, keeping silent when such discipline is imposed upon lawyers, provides no support to such lawyers, instead, instantly casts them out of attorney organizations, such as the ABA and New York State Bar Association, and even rescinds book offers for foreign attorneys who were punished for their civil rights activities by obviously politically oppressive regimes - for financial and political reasons.

And, while the bar is silent, consumers of legal services suffer. 

Because the right to not just any judicial review, but to an impartial judicial review is a constitutional right - and when your lawyer is afraid to make a motion to recuse a biased or corrupt judge for fear of losing his income forever, your right to an impartial judicial review is shot.  It is simply non-existent. 

And quashing this constitutional right wouldn't have been possible without attorney monopoly, where court representation is restricted only to people who are approved - or disapproved - by the same judiciary that they are supposed to challenge in objections, motions to recuse and appeals.

Well, unfortunately, this example of keeping the bar "in check" appeared to be contagious for another country. 

Actually, Russia appears to be borrowing this American rake to step upon it - and, as it will be shown below, with the help of the American Bar Association whose members priced themselves out of the shrinking U.S. market of legal services and are now preparing expansion into the Russian market, clinching it for themselves by pushing through the American model of attorney monopoly.

A good illustration of how that attorney monopoly will hurt consumers of legal services in both criminal and civil proceedings, and out of court, too, is the case of Russian attorney from the city of Ufa in the Republic of Bashkortostan.

This past week, a young and talented criminal defense attorney, Vitaliy Burkin, was stripped of his attorney status - and instantly removed from tens of criminal cases - because of his open and sharp criticism of judges and judicial system.

What were his particular faux pas?


The illegally parked, and towed, vehicles, belonged to a judge and two prosecutors.

Of course, Vitaliy Burkin said in a video interview that he does not believe that judges would be so petty as to exact revenge against him for having their vehicles towed. 





Yet, it appears that Russian judges and prosecutors are made from the same ... materials as judges in the U.S. and no petty revenge is beneath them.

Even more so that Vitaliy Burkin not only had their vehicles towed for illegal parking, that was the last drop.  He also criticized - and asked the federal Attorney General of Russia to criminally prosecute - high-ranking judges of the Republic of Bashkortostan who illegally transferred some real estate to themselves.

Vitaliy Burkin also publicly made a stand against oppressive judicial decisions which were not based on the law - does it ring a bell, my American readers?

And, during review by the European Court of Human Rights of the case of Oxana Semenova, a prison inmate and a cancer patient who was denied treatment and painkillers by Russia prison authorities, Vitaliy Burkin had the duty (no, the audacity, apparently) to raise the same issues of denying cancer treatment to his client, a pre-trial detainee.

And, the most grievous error of Vitaliy Burkin's ways was, and that's his own assessment in his video interview embedded above, that he is actually a very good criminal defense attorney who undermined the conviction count for the local prosecutors by getting "too many" acquittals or reversals of convictions on appeal.




On the same date, October 3, 2017, ECHR made yet another decision against Russia on violation of free speech, declaring as unlawful "defamation proceedings against an editorial house and a journalist following the publication of two articles concerning the sinking of the Russian Navy's nuclear cruise missile submarine "Kursk" in the Barents Sea in August 2000 and the investigation into the accident".


Americans can only envy Russian, as well as other countries who have access to an out-of-the-country review of inside-the-country human rights violations, since Americans do not have such a right.

Even though in America, inmates are also denied medical care, but, due to severe procedural restrictions (15 days to file a grievance in the same jail where you are kept and face the risk of retaliation for that, in order to preserve your right to sue for human rights violations) created by the Prison Litigation Reform Act and federal law allowing federal judges to toss prisoner lawsuits as "frivolous" before they are even served, on subjective grounds, such cases, unless some powerful organization turns its eye at them, do not even get reported, much less get reviewed by any international human rights organizations.

And, even though in America,

 - victims of such persecution and their families lack the right of out-of-the-country review, and in-the-country review of such things usually leads to dismissals, if not with sanctions, because nothing that the government (and especially the judiciary) does in the U.S. may be deemed bad.

Russian government at the very least allowed Russian citizens to sue itself in an outside forum, the European Court of Human Rights.

Nevertheless, victories in free speech lawsuits against Russia at the beginning of this month did not prevent, and, very possibly, accelerated what happened to attorney Vitaliy Burkin, as a method of intimidation of all other potential critics of the government in Russia.

In two and a half weeks, Vitaliy Burkin, the "troublemaker", was stripped of his "advocate status" and removed from criminal cases.


By the "Chamber of Advocates", an association of his competitors.

While having done NOTHING WRONG in representation of his clients - and regulation of the legal profession in Russia, as well as in the United States, was introduced on the pretext of protecting consumers of their services.

Apparently, his clients suffered, same as clients suffer in the United States, when their chosen, competent and courageous attorneys, usually independent solo or small-firm criminal defense or civil rights attorneys, are removed for criticism of the judiciary.

And, apparently, same as in the United States, nobody asked Vitaliy Burkin's clients whether they would agree to removal of Vitaliy Burkin from their cases.

Somehow, the decision of who would represent their interests in court was taken out of their hands and given to competitors of their own attorneys, and very possibly, to their opponents in litigation, since - remember? - Vitaliy Burkin, after all, called a tow truck upon a couple of prosecutors, one with the same last name as the Deputy Chief Attorney General of the Republic of Bashkortostan.

"Coincidentally", at the time of persecution of Vitaliy Burkin, lawyer lobby was actively trying to push through the Russian Legislature (the Duma) various types of attorney monopoly - similar to what already exists in Russia, and, similarly to the U.S., without any sunrise review and without any verification with consumers of legal services whose rights such attorney monopoly is claimed to protect, whether consumers want attorneys to guard the chicken coop. 

It is interesting to see the supposedly unrelated interaction of Vitaliy Burkin's case with what is happening in the Duma.

As soon as Vitaliy Burkin was told that he was stripped of attorney status - without actually giving him, according to Vitaliy Burkin, the written decision with reasoning about such an extraordinary punishment - Vitaliy Burkin made a public statement in an interview with journalist Stas Michailov.

In that interview, attorney Burkin, in answer to the journalist's question whether he is going to undertake steps to restore his "advocate status", answered that the "advocate status" does not make much difference in his work since he can still work as a lawyer without being a court criminal defense attorney.

In Russia, attorney monopoly at this time concerns only representation in criminal court, specifically appearances in court, and not consulting, giving legal advice, preparing documents, and representing people in arbitration and civil court proceedings.

But, attorney Burkin may be out of luck in his hopes that he was stripped only of the status of criminal defense court attorney.

According to reports of Russian business newspaper "Kommersant", a new bill in the works - to spread attorney monopoly exactly the same way as it exists in the U.S., to cover all those things that were not (yet) stripped from attorney Burkin.

If that is passed, competitors and the government will have an opportunity to remove independent Russian attorneys not only from criminal cases, but also from arbitration, civil and, especially, from civil rights cases - and prohibit attorneys to so much as peep a legal opinion or give legal advice to people, or draft any documents.

And, the interesting thing is that such a bill appeared after you know who vigorously toiled to teach Russian attorney bureaucracy and judiciary about "the rule of law"? 

The American Bar Association that has a death grip upon attorney monopoly in the United States, notwithstanding the "justice gap" that such an attorney monopoly produces for people.

The ABA, through its "Rule of Law" project and its exceptionally interesting director, Gleb Glinka, husband of the recently (allegedly) deceased Dr. Lisa, who has his own very interesting ties in top tiers of both the U.S. and the Russian governmentbrought American own corrupt judges to lecture to the Russian judges how to rule the legal profession better, engage in corruption and escape accountability for that, brought Russian judges back to America for tours (I translated in one of them, where judges came from the Astrakhan region). 

In view of the ABA turning a deaf ear and a blind eye to the fate of attorneys who suffered for criticism of the country in the ABA's own country, and in other countries - which is reflected in the ABA's policy of membership to accept only attorneys "in good standing" with their own governments, even if those governments are oppressive dictatorships, and in view of the recent testimony in the U.S. Congress about the ABA's reneging a book offer to a Chinese civil rights attorney, obviously in an effort not to ruffle the feathers of Chinese government and not to jeopardize business prospects of its members in China - the recently concluded "Rule of Law" project of the ABA in Russia was not any kind of charity to sermonize to the supposedly uneducated Russian lawyers and judges what the rule of law is - but a purely business venture.

The ABA was pushing through the American model of attorney regulation in Russia notwithstanding the fact that attorney monopoly enriching politically connected attorneys in the United States, makes the majority of Americans go to court without an attorney or forego their legal rights completely, since, with the minimal pay across the United States under $15 an hour, they are unable to afford a licensed attorney whose hourly rate starts at $200, and, according to comments, is on average now $400 an hour.

At the same time, due to criminal laws pushed through by attorney lobbies in the US, which prohibit "unauthorized practice of law", without clearly defining what the "practice of law" actually is, with severe penalties such as up to 5 years in prison, a criminal felony conviction and stripping of rights of employment and voting rights on conviction, people who cannot afford to pay $400 an hour to a lawyer (actually, much more upfront since most of attorneys require several thousand dollars down as a retainer to start representation in a court case), are forced to proceed without an attorney entirely. 

Thus, attorney regulation as it exists in the US, protects only the rich, who can afford an attorney and who does not need such "protection", and as a result of such "protection" people who do need court representation go without any such representation whatsoever, because their choice of their own court representatives is taken away by the government and by the legal profession.

Hiring a court representative of their own choice from anything but a government-approved lists of licensed attorneys is a crime in the United States, for both the consumer (as a solicitation), and the contractor - which is especially stupid when the very government who restricts consumer choice of court representatives, is the opponent of that same consumer in litigation, in:


  • family court social services cases against parents,
  • tax foreclosures,
  • property forfeiture cases,
  • disciplinary proceedings against licensed professionals,
  • criminal proceedings, and in 
  • civil rights cases where the government is being sued by people for violation of their civil rights.

Apparently, that's the rake towards which the ABA, through its now embedded lobby in Russia, is pushing Russia.

And, attorney Burkin's case - and his instant removal, by a group of competitors, from criminal cases where his clients chosen him to represent them for his competence, skills, courage and independence, without his client's knowledge, notice or consent - is, unfortunately, but likely, only the beginning of the backlash against independent court representatives in Russia.

Apparently, corruption and greed are the best products that the American legal profession can export to Russia.

Nothing like plunging people into the dark ages, all the way asserting lofty causes.

I would very much prefer that Russian consumers of court representation - same as American consumers - wake up finally and make their opinion on the subject of attorney monopoly, and the resulting justice gap, known.

Until then, third parties with special interests will be deciding who and how will represent them in court, where their life (in the U.S.), liberty, property, custody of children (both in the U.S. and in Russia) are concerned.

And attorneys of their choice will continue to be removed from their cases by decisions of those third parties with special interests - like it happened in American cases listed above, like it happened in Russian in the case of attorney Vitaliy Burkin.