"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.
Monday, November 21, 2016
Arizona State Bar's selective approach to discipline against prosecutors and defense attorneys selling their clients' stories
I wrote on this blog about misconduct of an Arizona prosecutor Juan Martinez in publishing a book about the criminal trial of Jodi Arias and using as a sales pitch the materials of his office allegedly never presented to the court.
Prosecutor Juan Martinez was offered a "consent agreement" by disciplinary authorities - for putting him on "probation" because he published a book about a criminal case and sold in that book materials of his office or description of such materials which were not presented in court.
Juan Martinez adamantly refused to enter into the consent agreement, and the trial has not been yet scheduled in his disciplinary case.
On the other hand, the defense attorney in the same case, Laurence "Kirk" Nurmi, was offered, and reportedly accepted, an agreement for a 4-year suspension (not probation, like it was offered to prosecutor Martinez) for the very same conduct - of publishing a book about the very same trial. The suspension consent agreement is still to be approved by the disciplinary court.
Both books: Juan Martinez' "Conviction: the untold story of putting Jody Arias behind bars" and Laurence Kirk's "Trapped With Ms. Arias" continue to trade on Amazon.com, I've got the screenshots from Amazon.com for both books today:
And, Amazon.com even encourages buyers to consider buying these books - which are currently both grounds for disciplinary proceedings against their authors - together.
Attorneys have two cast-in-stone disciplinary rules - the rule of confidentiality of client information, and the rule that the attorneys cannot enrich themselves by selling information about the client's case, even if it is public.
Both rules are reasonable and go hand in hand with one another, because, if attorneys get more money for selling a client's story, there is no hope for confidentiality or effective representation - all that attorney will be doing is shaping the story to sell it better, instead of doing their jobs.
Prosecutor Martinez used as a sales pitch that he published in his book what was not presented in court, thus violating both of these rules.
Defense attorney Nurmi, apparently, did the same, describing in his book his interactions with his client
In the suspension agreement, reportedly, attorney Nurmi acknowledged that in his book he revealed evidence ruled inadmissible by the court and contents of confidential conversations with his client and her family members.
It is quite telling though that the disciplinary prosecutors did not make an effort to seek an injunction against the CONTINUED ENRICHMENT by both attorneys by selling the books and deriving a financial benefit from their own misconduct, and the misconduct apparently continues.
If the "consent orders" of discipline do not include prohibition to sell the books, and no preliminary injunctions against sales of the books are sought or entered by disciplinary courts, both attorneys are allowed and, in fact, encouraged, to publish books in sensationalized cases, because such books may bring more profit to attorneys than their legal careers, making suspensions or other forms of discipline ineffective.
Let's see what happens in Juan Martinez' disciplinary proceedings, but I have a funny feeling he will be given, as all prosecutors usually are, a slap on the wrist and will be allowed to practice - and commit misconduct - further.
Suspensions are only for defense counsel.
Prosecutors (the breeding pool of judges), when caught in the very same misconduct, can be offered "probation" and proceed on their merry way.
What else is new.