"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).
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,
“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.
Tuesday, October 18, 2016
Pakistani lawyers oppose judicial authority to discipline attorneys - in an emergency council meeting
The judiciary can - and does - deprive lawyers of their livelihoods for so much as challenging judges with motions to recuse for misconduct.
That is happening in a country claiming to be democratic.
In a country that is far from being considered democratic, Pakistan, lawyers value their professional independence a lot higher.
Back in 2014, I presented to a New York court evidence that Pakistani attorneys claimed that regulation of the legal profession by the judiciary severely undermines the profession's independence, and stated that the current placement of regulation in the hands of those public officials whom attorneys may have to challenge as part of their duties, creates an unconstitutional danger of retaliation and loss of livelihood for attorneys. That claim has been ignored.
Now, in 2016, Pakistani attorneys called for an emergency conference because - guess what - an attorney was, for a short period of time, stripped of his license by a court.
That incident caused Pakistani attorneys, once again, to convene an emergency meeting protesting that the judiciary does not have authority to strip an attorney status, and that only the professional association of attorneys may have a right to discipline their own, without interference from courts.
Yet, remember, in the U.S., licenses to practice law are issued and revoked only by courts - and no emergency meetings of bar associations are convened, instead, bar associations agree and embrace this setup in exchange for privileged positions for some of its elite members, to the detriment of non-elite members and consumers of legal services.
I guess, robust opposition to judicial control over attorney independence is more possible while such control did not get entrenched and become overwhelming and threaten a practically inevitable loss of attorney livelihood if the attorney challenges judicial misconduct as part of attorney's duties.
Pakistani attorneys are, from that point of view, at an advantage as compared to American attorneys. They are not regulated by the judiciary, and they resist, continuously, systematically and vigorously, all attempts of the judiciary to exert such control over them.
And that includes COLLECTIVE protests by lawyers against suspensions of licenses of even ONE attorney - something that is totally lacking in the U.S.
In the U.S., instead, bar associations, instead of staging such protests, play the coward and deny membership to suspended and disbarred attorneys without looking into the circumstances of suspension or disbarment - assuming that courts cannot do wrong in suspending or disbarring an attorney.
Pakistani attorneys, on the opposite, are of the opinion that courts cannot do RIGHT by suspending or disbarring an attorney - and fight vigorously against any attempt of courts to grab the power to restrict professional activities of attorneys or strip attorneys of ability to practice law.
Apparently, Pakistani attorneys have true professional solidarity, fighting to protect their professional independence by challenging court authority to block individual attorneys from practicing law - while American attorneys usually hide under the rock and never provide support for their suspended or disbarred colleagues, for fear of being found "guilty by association" and losing their own livelihoods.
I wonder whether professional solidarity of Pakistani attorneys and lack thereof in American attorneys are related to the level of wealth guaranteed by the judiciary through protection of the legal profession from lower-priced competition. In other words, it is possible that the lack of solidarity with those members of the profession who were struck down for fighting judicial misconduct, is not only chilled through intimidation, but also bought.
Since American attorneys voluntarily got themselves into this mess of being kept prisoners of their licenses to practice from the judiciary, they cannot complain it is difficult to extricate themselves from this stifling dependence.
They owe it to themselves, their families and to consumers of legal services whose interests they are sworn to protect, too.
Difficult, it is.
But necessary, nevertheless.
Otherwise the supposedly honorable profession of American attorneys is reduced, unlike the vigorous, independent and courageous Pakistani lawyers, to cowardly "defensive lawyering" only in ways pleasing judges, and to always looking over their shoulders at all times not to offend a judge or somebody having the judge's ear.
To live a cowardly life is not so honorable - is it?