"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.

Friday, August 19, 2016

A warning to civil rights attorneys - the U.S. District Court for the Northern District of New York is about to create a precedent destroying the incentive of taking on civil rights cases for indigent plaintiffs in reliance on the promise of 42 U.S.C. 1988(b)

In a case where I was - allegedly - suspended on the eve of trial, after litigating the case for 3.5 years, a new attorney for my former clients recently claimed that:

only the former clients have a right to apply for the fees of the former attorney that were promised BY those people TO the former attorney as a lure to get her into the case where she subsequently worked for 3.5 years based on that lure - and when the attorney was lured into the case at the time when all other attorneys were afraid to touch the case (against social services).

My former clients, through their new attorney Woodruff Carroll, allegedly (Carroll was caught many times lying as to what his clients did or did not authorize him to do) claimed the following:

1) a former attorney does not have STANDING to apply for her own legal fees at he successful end of litigation;

2) their position is based on the 2nd Circuit's decision claiming that 42 U.S.C. 1988(b) is conditioned by the "contractual relationship" between Plaintiffs and their attorney, not based on the "quantum meriut" recovery regardless of any contracts - as the statute actually says;

3) a retainer agreement is required as a pre-condition of granting legal fees under 42 U.S.C. 1988(b);

4) not more than $3,000 may be awarded in the absence of a retainer agreement under 42 U.S.C. 1988(b);

5) Plaintiffs already entered into a settlement with Defendants where they WAIVED MY legal fees IN EXCHANGE for money - in other words, they sold MY rights to legal fees from Defendants in exchange for money being TO THEM, while they never had a right to MY legal fees, because it was MY work that they were selling without my consent (at least, attorney Carroll claims they sold my rights behind my back for money, and I am seeking access to the now-sealed transcript to verify if that is so);

6) Plaintiffs have a financial interest to prevent vacatur of my disciplinary suspension that had nothing to do with the Plaintiffs' case. 

The issue as to whether an (allegedly) suspended attorney (there is no public order of my suspension in federal court) is, of course, a separate issue from the general issue whether the FORMER attorney, whether suspended or not, has his/her own standing to apply for his/her own legal fees under 42 U.S.C. 1988(b), a statute created to provide a financial incentive to ATTORNEYS, not to clients, to advance valuable legal services to indigent civil rights plaintiffs.

So, we have two big issues here which are very important to the vitality of civil rights litigation and feasibility for ANY civil rights attorney to even consider taking on a civil rights case on the basis of the promise that, if the attorney's work is successful, the attorney's fee will be paid by the defendants (the government) under 42 U.S.C. 1988(b).

I would split those considerations into two large issues - the more specific and the more general.

The more specific issue is:

  • Whether an attorney who is conveniently suspended after bringing a civil rights case to trial, or after providing any amount of legal services in a civil rights case (and the suspension had nothing to do with that case), and who was lured into the litigation by the promise of legal fees under 42 U.S.C. 1988(b), has his/her own right to any legal fee for services provided BEFORE the attorney was suspended;
The more general issue is:

  • Whether a FORMER attorney for civil rights plaintiffs, not suspended from the practice of law, who was induced into the civil rights litigation by the promise of legal fees to be obtained from the moneyed Defendants at the end of a promising civil rights case under 42 U.S.C. 1988(b), has his own right to apply for legal fees if the attorney was discharged before the end of litigation, but the litigation concluded successfully for his former clients.

Here is my Memorandum of Law in support of my own standing, as a former attorney in a civil rights case where my former clients admittedly prevailed, and whose fee was earned and vested before I was (allegedly) suspended in federal court, without a public order of suspension.

The summary of my points is:

1) The legislative intent of 42 U.S.C. 1988(b) was to provide the incentive to attorneys to advance their own legal services to indigent civil rights plaintiffs, so if the financial incentive was meant for attorneys, attorneys have their own separate standing to recover the fees from the defendants pursuant to that statute;

2) Clients have an absolute right to discharge an attorney, for cause or for no cause, at any time during litigation.  If clients have an absolute right to discharge an attorney for no cause, and they do exercise such a right, making the attorney a former attorney, there is an inherent conflict of interest involved, and vesting the exclusive standing to obtain the former attorney's fee into the now-former clients is a violation of the former attorney's due process of law.  Moreover, the legislative promise of 42 U.S.C. 1988(b) of a legal fee for the civil rights attorney at the successful end of litigation becomes illusory if the statute would give only to clients the power to apply - or not to apply - for legal fees of their counsel who they could strategically discharge in order to strip him of his already-earned legal fees.  To so undermine the promise of the 42 U.S.C. 1988(b) to civil rights attorneys will chill civil rights litigation, because no reasonable civil rights attorney would want to take on a case knowing that he can be, at any time, discharged without cause, or suspended from the practice of law, and then lose his right to legal fees for services already provided;

3) It is not the attorneys who have no standing to apply for their own legal fees, but the clients who have no standing to apply for the former attorney's legal fees, because those legal fees never belonged to the clients, and the clients were never authorized by the attorney to apply for such fees. 

4) Clients have no standing to waive somebody else's, the former attorney's, right to legal fees.  The case the Plaintiffs were citing as to the waiver of legal fees as a condition of a settlement in a civil rights case was fact-specific and involved the present attorney of record who waived HIS OWN legal fee as a condition of the settlement, not the former attorney whose earned legal fee was waived, over his objection, in his absence and without his permission, by Plaintiffs and the attorney's successor, the new attorney for the Plaintiffs;

5) the right of the former attorney to a legal fee under 42 U.S.C. 1988(b) is not conditioned upon a retainer agreement or its contents;

6) the amount of entitlement by the former attorney to a legal fee under 42 U.S.C. 1988(b) is not conditioned upon a retainer agreement, or upon whether the attorney did or did not present it to the court, the retainer agreement should only be provided when the court demands it, since there is nothing about retainer agreements in the statute;

7) the former clients, the Plaintiffs, have no standing TO OBJECT against the former attorney's recovery of legal fees, because the motion for fees is seeking fees not from the Plaintiffs, but from the Defendants;

8) the former clients have no right or standing to waive, and even more, to sell the already vested right of the former attorney for services already provided before discharge, in exchange for a money offered in a settlement,  without notice or consent, and with knowledge of an objection, by the former attorney.  The case quoted by the clients in support of their claim they may waive an attorney's legal fee, refers to the personal waiver of the legal fee by the current attorney of record.  The case that Plaintiffs quoted supports actually MY position, that it is for the attorney, and not for the clients, to waive his own legal fees, and the fee of the former attorney can only be waived by that former attorney, and not by the now-former clients or their new attorney.

I must add that neither Plaintiffs, nor Defendants opposed any item of my legal fees or the reasonableness of my hourly rates that I submitted to the court, so the motion must be granted by default - not that I expect it to be granted, because of the court's extreme bias against me that I described recently here and here (the magistrate in these two cases is the same, and all judges in these two cases are defendants in my earlier-brought lawsuit Neroni v Peebles, dismissed sua sponte before answers were filed by the judge who was a witness in that case, that I am about to renew based on new evidence - and turn into criminal authorities to investigate).

While my motion appears to be a private fight for my own legal fee for my own work in a civil rights case against social services, the decision that the court will render will be important to the fate of civil rights litigation in the U.S. as a whole.

The decision will have precedential value and, if decided against me (which is what I reasonably predict since that particular court disregards any laws, equity, records or any reasonable arguments as far as I am concerned), can pull the statutory incentives from ALL civil rights attorneys to take on cases of indigent civil rights plaintiffs - because the statutory incentives provided by 42 U.S.C. 1988(b) are rendered illusory by the ability of clients to discharge attorneys at any stage of litigation and then not apply for their legal fees or sell their right to legal fees under 42 U.S.C. 1988(b) as part of settlements, as it was done in my case.

I will report what the court will decide on this matter.

Stay tuned.

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