One important issue is prominently missing from the Report, which was present during the hearings - protection of whistleblowers of judicial misconduct from the use of attorney discipline as a tool of revenge.
Attempts to punish attorneys for criticism of the judiciary is not the invention of the State of New York.
Such attempts were made for over a century.
In fact, I made it a point to put a quote from a 1880 Pennsylvania case attempting to punish an attorney for criticizing the judiciary on top of this blog, and it appears on top of every blog post.
I will repeat the quote here:
"“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)."
That was a noble thought expressed by an honest judge in the State of Pennsylvania 135 (ONE HUNDRED THIRTY FIVE) years ago.
One hundred and thirty five years down the road, the following is happening in all states of the United States:
- attorneys are a licensed profession;
- licensing of attorneys, an executive function, is in the hands of the judiciary (when all other occupational licenses are regulated by the executive branch), even when, as the quote says, attorneys "have the best opportunities of observing and forming a correct judgment" as to judicial integrity or misconduct - and must ensure, on behalf of their clients, their clients' constitutional right to a fair and impartial adjudication, pointing out issues of judicial bias and misconduct;
- the judiciary introduced specific rules of discipline against attorneys making "false statements" against judges or even judicial candidates (thus impairing attorney free speech to educate voters during judicial elections), and
- under these rules, all statements against criticizing judges are considered false; and
- attorneys are not entitled to 1st Amendment protection for criticism of judges
Here are FOUR very detailed articles of Margaret Tarkington, a law professor and an "order of coif" law school graduate (all "A"s throughout law school - a VERY rare thing)
I was punished for criticizing the judiciary in pleadings despite the references to scholarly articles supporting my position.
And I am not unique in that - unfortunately - I am part of a whole class of lawyers sanctioned and expelled (well, I am not expelled yet, but I am on the verge of it) from the legal profession for doing their jobs and trying to ensure for their clients a right for fair and impartial adjudication.
- making motions to recuse - where the challenged judge sanctions you for "harassing the judge", which the judge, of course, cannot do because there is a clear due process rule that a judge cannot sit in judgment of his own case, and when a judge issues a claim of harassment of himself, the judge operates as a
- complaining witness
- testifying witness
- judge and jury
- for suing that same judge in another action - I was sanctioned by Judge James Tormey for suing him in federal court, on specific request of my opponent, attorney Jonathan S. Follender of Arkville, New York, who is a local town justice and thus his request to the member of his brotherhood had more weight than some puny constitutional restraints
- three sanctions imposed upon me by a judge;
- immediately after I sued that judge on behalf of a client for misconduct in and out of court proceedings
When the New York State Statewide Commission for Attorney Discipline was formed in February of this year, one of its declared goals was to verify how to make attorney discipline more fair.
A lot was said in the three public hearings in front of the Commission about dismissals of most of the complaints against attorneys.
A lot was said about non-prosecution of prosecutors involved in wrongful convictions.
There were statements by two witnesses - Elena Sassower and Alton Maddox, pointing out the issue of retaliation against attorneys for their professional activity.
Alton Maddox said in his testimony in the New York City public hearing:
This is what witness Elena Sassower has said in the same hearing:
- Doris Sassower was disbarred for challenging improprieties in judicial elections in New York State;
- Elena Sassower was put in prison for opposing the federal judicial nomination of a judge who self-servingly first ruled that such cross-endorsements are legal, and then used those cross-endorsements in his own re-election campaign;
- and judges who continue to regulate the legal profession - and who created the Commission, allegedly to make sure how to make attorney discipline "more fair", continue to use the system of cross-endorsement to get to the bench
- Judge Kahn has been appointed and continues to "serve" on the federal bench, and continues to engage in self-serving acts - like participating in a secret-membership organization The American Inns of Court that provides benefits to judges while its members appear in front of those judges in court
- perpetrators of attorney misconduct will remain in power;
- whistleblowers of official misconduct will be stripped of their livelihood, disbarred, jailed, abused in jail and driven into bankruptcy;
- attorneys will remain intimidated to speak out against judicial corruption, and
- the public will continue to be screwed in the corrupt courts, without any possibility of independent court representation