"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.

Sunday, March 23, 2014

Are your judge and your opponent communicating through American Inns of Court?

As a practicing attorney, I've had my moments after receipt of some judicial decisions when I was wondering how could a judge arrive at this particular opinion if it contradicted the record in front of him.

Was it negligence?

Was it bias?

Was it somebody's influence?

I can raise on appeal the first two issues, even though it's a risk: attorneys, including myself, were punished for raising issues of bias and negligence of judges.

When you are raising issues of potential influence upon a judge, even though the threshold for a motion to recuse/disqualify is "appearance of impropriety", and thus, your reasonable perception based on facts you know, the key is "facts you know".

What if your reasonable perception is based on the facts you do not know?

Enter American Inns of Court.

I've learnt about this organization only very recently.   Even though the existence of the American Inns of Court is not secret, I've not seen it advertised in my law school, Albany Law School, during my studies, it was never discussed in conversations with my fellow colleagues, and my fellow colleagues, some practicing for decades, never heard about it, I asked.

The essence of the American Inns of Court is that it is a national foundation, with regional chapters in, as I understand, every state and multiple Inns per state.  Also, there are Inns in federal bars.

The association is between lawyers, judges (and judicial law clerks) for the declared purpose of promoting excellence in the legal profession and promoting "collegiality" and ethics.

As an example, the Federal Inn of Court's mission statement is located on the webpage of the Federal Bar Council for the U.S. Court of Appeals, 2nd Circuit.

The mission of the Inn of Courts is announced, in part, as follows:

"the Inn endeavors to create a community of lawyers and jurists who care about the legal profession and each other, in the hope that members of the Inn will guide, mentor and befriend each other at formal meetings and in their spare time".

Membership in this particular Federal Inn is transparent, in most state Inns which I researched membership for both lawyers and judges is secret, see, for example, the site of The Intellectual Property and Innovation Inn of Court in Albany, New York.

Membership for lawyers from a private sector is far from free.  In the Federal Inn of Court for the 2nd Circuit the lowest that a lawyer from a private sector must pay to participate is $445.00 per year.  Judges and their law clerks who are also participating in activities and receptions preceding activities, pay nothing in the federal Inn, reduced fees (as compared to lawyer members) or nothing in various state chapters where information is available.

According to descriptions available at various Inn of Court sites, monthly member meetings are considered very important duty of members, often start with "light cocktails" and are either preceded or concluded with receptions.

Now, if judges do not pay for their participation, that means that judge's dinner fee with cocktails every month is covered by the lawyer members of the Inn.

While the main declared purposes of the Inns is promoting excellence and ethics in the legal profession, the way that excellence is promoted raises, to me, big concerns.

It is a problem to me if the judge on my case and my opponent "guide, mentor and befriend each other", as the Federal Inn mission statement suggests, behind closed doors.

While one at least has the benefit of seeing the roster of members in the Federal Inn for the 2nd Circuit, in other Inns even that is not available.

American Inns of Court, thus, present a distinct possibility that the judge on your case and the opponent attorney on your case may be secret members of an association which meets behind closed doors at least every month, where the judge receives the distinct financial benefit of a free or reduced-fee lavish meal with cocktails and where your judge and your opponent in litigation have plenty of opportunities to "guide, mentor and befriend" one another behind closed doors, without notifying you.

In legal terms, that is called an ex parte communication and grounds for disqualification of the judge and for discipline against both the judge and your opposing counsel, but you will never know whether such ex parte communication ever took place, because, once again, membership of judges and lawyers in most American Inns of Court is secret, and where it is not secret, as in the Federal Inn I described, what they discussed at their meetings is secret because public is not allowed in.

Just think that every time that any judge is looking down into the courtroom during a case and one of the lawyers of him belongs to the Inn, he might have a financial interest in the case because that lawyer is paying his bill for the drinks and food once a month and for any other activities sponsored for the judge by the Inn or the Inn Foundation.

I am saying "any judge", because membership in the Inns is secret and you do not know whether a particular judge on your case is or is not a member of an Inn.

As an analogy, let's say a lawyer owns a restaurant, and a certain judge can come there at least once a month and the tab is on the house, for all food and drinks.  If that same lawyer had a case in front of that judge, would you then consider it improper?  Right there you have a conflict of interest, or at least an appearance of impropriety where the judge knows that the lawyer appearing in front of him paid his last monthly restaurant bill and will pay the next months?  And wouldn't it be deceitful on behalf of both the judge and the opposing counsel when you or your attorney have no knowledge of these activities going on a regular basis?

Shouldn't the judge and the attorney disclose such a relationship when the judge is assigned to the case?  Did you ever receive such a disclosure from a judge, that he is a secret or open member of a certain American Inn and that the opposing counsel or his law firm is also a member and supports the judge with free monthly meals?

Additionally, American Inns of Court distribute scholarships, they hold regional and national conferences or meetings, there is also a "reciprocal visitation agreement" for individual members of American Inns of Court and English Inns of Court.

If a judge member of an American Inn of Court does not pay the membership fee or pays it at a reduced rate as compared to fees of attorney members, while through such membership a judge gets access to the "reciprocal visitation" benefits to go overseas, these opportunities raise even more concerns as to appearance of impropriety and potential of influence upon judges through the system of the American Inns of Court. 

This secret membership of judges in the Inns of Court where they meet on monthly basis with rich attorneys in order to "guide, mentor and befriend" each other presents the following practical concerns to me as an attorney, litigant, citizen and voter:

  1. How can the voters who voted a certain judge into office be able to monitor whether the judge is or is not influenced in his decisions if the judge agrees to an open (as in Federal Inn) or secret (as in state inns) membership in an association where attorneys, also secret members, pay membership dues enabling them to meet with judges behind closed doors, wine and dine the judges, socialize with judges, befriend, mentor and be mentored by judges?  To me as a voter, such a possibility destroys presumption of integrity of any judge in any state, including my State of New York, because we simply do not know about membership in the Inns of any of the judges.
  2. How can litigants and their counsel be assured whether or not the judge they appear in front of and the powerful or rich opposing law firm are not meeting at monthly receptions sponsored for the judge by membership fees of the law firm and discuss your case behind your back?  I asked once whether a judge's son worked for the opponent, and was slapped with sanctions by that judge who also refused to step down, even though I knew that the judge's son did work for the opponent in the action.  The same result can follow if an attorney or litigant would a question whether the judge and the opposing counsel are secret members of American Inns of Court, yet, since the membership is, once again, secret in most inns, and access to national Inn membership directory is part of the benefits members pay for, this is a distinct possibility.  The only way to protect an attorney or litigant asking such a question is to mandate such disclosure by the judge through a mandatory statute.

Yes, we do have freedom of associations in this country protected by the 1st Amendment of the United States Constitution.

And yes, judges do not check their constitutional rights as to what they do in their free time when they are sworn into office.

But the voters and taxpayers who pay judicial salaries and benefits do that on an assumption that judges maintain their oath of office, and the main component of judicial duty is independence.  Thus, judges must be careful in exercising their freedom of association in their free time, so that no to create an appearance that they are fraternizing with rich attorneys behind closed doors who, in return for monthly receptions and national and international travel, get to influence judicial decisions, "befriend and mentor" judges.

Ex parte communications between attorneys and judges are prohibited because they deny opponents due process and equal opportunities in litigation.

The problem with the Inns is not that such ex parte communications specifically about litigation are taking place.  I cannot say that for sure because I simply do not know who are the members attorneys in a particular inn, who are the member judges, what, if anything, the member judges are paying into the association, what benefits the judges and/or their family members receive from the Inn, but when such memberships simply exist, and such secret opportunities exist, that alone undermines public trust in the integrity and independence of the judiciary.

As federal taxpayer and voter and taxpayer and voter in the State of New York, I consider it necessary to make all judges, whether federal or state, to disclose their membership in the Inns and to mandate disclosure by the judge to litigants, on demand, all monetary and non-monetary benefits they receive through membership in American Inns of Court, and to do that as a matter of statute, because otherwise judges will simply stifle such inquiries with sanctions and retaliate against inquiring attorneys by taking their licenses and livelihoods, as they are doing to me (see my blogs herein) and as they are doing to many more attorneys in the country. 

I would also demand that, if judges are participating in American Inns of Court, thus creating a potential of influence upon their decisions, member directories of all Inns must be open to the public to be able to verify potential conflicts of interest and potential to influence judges in litigation.

Presumption of integrity of the judicial profession must be substantiated by lack of secret dealings behind closed doors between judges and attorneys, for a perceived financial benefit for judges.

The requirement that attorneys must maintain public confidence in the integrity of the judiciary as a condition to allow attorneys to practice law and earn a livelihood must be substantiated by information ensuring that such public confidence is justified.

I feel deceived by the system where I am required to maintain public confidence in the integrity of the judiciary as a condition to hold my license (constitutionality of this condition is a separate topic), while the judiciary is undermining its own integrity by participating in closed-door monthly receptions sponsored by rich attorneys where judges and rich attorneys "guide, befriend and mentor" each other without disclosure of such relationships to the public, voters and litigants.

Secret participation of judges in the American Inns of Court, secrecy of membership for attorneys, reduced fees or no fees for judges and their law clerks and high membership fees for attorneys, combined with frequent and expensive benefits judges receive from such membership in terms of lavish monthly meals, drinks and availability of Inn-sponsored international travel, as well as the possibility of being "guided, befriended and mentored" by powerful lawyers behind closed doors over lawyer-paid meals severely undermines appearance of independence of the American judiciary.

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