"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, March 14, 2014

Is it ethical or proper for judges only to make ethical rules for judges?

There exist a New York State Advisory Committee for Judicial Ethics which is an official body issuing interpretations of New York State Canons of Judicial Conduct as "ethical opinions", often followed by courts and expected to be followed by judges.

The Committee is comprised entirely of judges.  Just as a precaution, in the event the content of the linked site is changed, I copied and pasted below the actual composition of the NYS Advisory Committee as it is today: 


Hon. George D. Marlow (ret.), Chair,
Hon. Betty Weinberg Ellerin (ret.), Vice Chair
Hon. Jerome C. Gorski (ret.), Vice Chair
Hon. Daniel D. Angiolillo
Hon. Richard T. Aulisi
Hon. Arnold F. Ciaccio (ret.)
Hon. Vito DeStefano
Hon. David Elliot
Hon. Debra L. Givens
Hon. Michael R. Juviler (ret.)
Hon. Barbara R. Kapnick
Hon. Bentley Kassal (ret.)
Hon. James J. Lack (ret.)
Hon. Yvonne Lewis
Hon. Richard B. Lowe III
Hon. Robert M. Mandelbaum
Hon. Judith McMahon
Hon. Thomas E. Mercure
Hon. Denise F. Molia
Hon. Robert C. Mulvey
Hon. E. Jeannette Ogden
Hon. John M. Owens
Hon. Stanley Parness (ret.)
Hon. David J. Roman
Hon. Thomas J. Sheeran
Hon. Margaret T. Walsh

Honorary Members

Hon. Louis C. Benza
Hon. Lawrence J. Bracken
Hon. Harold J. Hughes

As the list shows, all of the members are sitting or retired judges.

Now, if judges were a self-regulated guild, I would understand that only members of the guild may regulate one another and establish their own rules.

When we are talking about elected public officials, with due respect and as a voter and part of the People of the State of New York who is the sovereign in the state of New York, I would object to judges establishing rules for themselves that govern their own ethics.

I would expect that the public must have an input into these rules of ethics and into interpretation of those rules. 

To include only judges into the panel of the Advisory Committee for Judicial Ethics sends a message to me as a member of the public that judges do not trust members of the public to participate in shaping judicial ethics?  And that is even though judges are not members of a private guild, but instead are individually elected public officers?

In my view it is the public who must define rules of ethics for its public officers, and should do it through its elected representatives in the Legislature.  It is also my belief as a member of the public that the public must have a supermajority on this Committee, whether lay members of the public have the necessary expertise in the law or not.  If the Committee is comprised predominantly by the public, nothing will preclude members of the public, if they comprise the Committee for Judicial Ethics, to consult experts who know the law, but the decision will still be not by the experts, but by the Committee comprised of public members.

Yet, judicial ethics concern important issues, such as disqualification and impartiality of judges, it is an issue of grave public concern and cannot be given to be define entirely or even predominantly to judges who have an obvious interest in defining such issues.  It cannot be given to define to lawyers either, because lawyers are financially dominated by judges in the most profound way.  Lawyers' licenses and livelihoods are in the hands of the judiciary, and lawyers are not neutral in defining rules of judicial ethics, as they are depending on the judiciary for their livelihood.

I, as a member of the public, believe, that judicial ethics must be defined, interpreted and the Advisory Committee for Judicial Ethics must be comprised predominantly of lay individuals, and of lay individuals who have nothing to do with the court system, who are not relatives, friends, spouses, significant others of officers or employees of the court system or lawyers.

Only then we as the public can be sure that opinions on judicial ethics are neutral and not self-serving.    

Opinions from the public are welcome.

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