Every attorney who regularly appears in front of a certain judge knows the judge's (and his law clerk's) little and not-so-little quirks.
A big quirk of Judge John F. Lambert (of Otsego County, but he is assigned all over the place, Delaware County included) is - conferences.
Remember, people pay from $150.00 an hour upwards to their attorneys to handle their cases. For many people this is a very serious financial burden.
Yet, Judge Lambert, in his pursuit of "resolutions" for both civil and criminal cases (in other words, in pursuit of settlements), conferences these cases to death, thus very possibly causing litigants to be drained of financial resources after conferences and leaving no financial resources to pay their attorney for the trial preparation and to go to trial.
Example # 1. Criminal cases.
A criminal case in the County Court in New York is pretty much streamlined procedure-wise - or at least, it should be.
There is an arraignment.
There is discovery.
There is an omnibus motion to be filed within 45 days of the arraignment, and a decision to be made by the court within 60 days of the returnable date of the motion.
There are motion hearings, if any were ordered by the court as a result of the motion.
There is a trial.
That's it.
Not in Judge Lambert's court.
The majority of appearances the Judge Lambert ORDERS for criminal defendants and their counsel to appear at (and if they do not appear, criminal defendants may be arrested and put in jail for non-appearance), are for conferences.
Even if the criminal defendants and their attorneys did not ask for conferences, and do not want to seek a plea bargain.
The judge still makes them appear at the conference, once again, at the threat of a disciplinary violation for the counsel and at the threat of a bench warrant for the defendant.
What happens at those conferences?
I've been to a number of them and I can tell you.
Attorneys only are being called in a succession into the judge's chambers.
The situation is grossly unfair because your client is not there, but the judge allows presence of police officers and representatives of probation department, all possible witnesses at the future proceedings.
Such conferences are important stages of criminal proceedings, yet, in Judge Lambert's court they are held off record and without the criminal defendant's presence.
It has been very recently reported to me that a criminal defendant asked the criminal defense counsel to NOT engage in conferences with Judge Lambert off record and without the defendant's presence, and the judge still did - as recently as this week.
In my view, this is a gross constitutional violation.
Not only there should be no resolution of a criminal case when the criminal defendant does not know what is discussed behind his back, but it is grossly inappropriate for the court to require the criminal defense counsel to come to court, and forcing the criminal defendant to pay for those trips, which ultimately may result in draining of the defendant's limited funds and inability to proceed to trial - which may be Judge Lambert's way of "attaining resolutions" of criminal cases, especially that conferences in Judge Lambert's court in criminal proceedings are called often, wthout any given reasons and without any apparent necessity for such conferences.
Example # 2. Civil cases.
If in criminal cases Judge Lambert at least "graces" the counsel only with his presence at the conferences, this does not happen in no-less numerous conferences called by Judge Lambert in civil cases.
In those cases, Judge Lambert's law clerk Mark Oursler handles such conferences.
Mark Oursler is not a bad guy - but he is known to be talking incessantly of his own personal interests during the conferences, and attorneys, even though they loathe the waste of time, are afraid to voice their objection against this practice, for fear of jeopardizing their clients' cases.
When I was at conferences with Mark Oursler, he usually talked about Russia - obviously, because I am Russian.
Mark Oursler did not appear to know much about Russia, but he discussed the Russian history trying to claim that he did know it. Mark Oursler was especially invigorated when two Russian attorneys were present at the same time - then he inevitably discussed Russia, and for a long time.
Conferences like that were held off record, and there is no way for the clients later on to verify what was discussed.
To tell Mark Oursler, politely or impolitely, to shut up and get down to business for which the court ORDERED attorneys and clients to drop other business and appear - was out of the question, once again, for fear of what would happen to your clients' case if you do tell Mark Oursler to get down to business.
From my conversations with other attorneys, I know that it is a regular practice, known by attorneys, for Mark Oursler to discuss his personal interests in conferences. Mark Oursler cannot by any stretch of imagination to be called stupid or not knowing court rules, the law, or rules of attorney ethics.
For sure, he knows what he is doing - and I am wondering whether the practice of conferencing civil cases to death, in the absence of clients, off record, while Mark Oursler discusses his personal interests - at a hefty cost to clients - is just a tactic to force "resolution" of cases, in other words, force settlements to clear Judge Lambert's calendar.
And that is for the Committee for Attorney Discipline and for the Commission for Judicial Conduct to investigate - if the will dare to do their jobs and investigate a judge and an attorney working for the judge.
After all - what is at stake? "Only" constitutional rights of litigants that both Judge Lambert and attorney Oursler are sworn to protect.
Since nearly everybody in this country has been sworn to do something, and misconduct in office is rampant, meaning that sworn oaths of office do not mean much for a lot of people, constitutional rights of litigants are usually the last thing that such committees and commissions want to look at.
And that situation needs to be changed.
THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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 cost.
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.
" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.
"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.
“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.
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