"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.

Wednesday, July 30, 2014

Delaware County will bear "some costs" of the new family court judge - how does it mesh with the idea of the County being a party in front of that new judge?

The County of Delaware finally got its with to get a 2nd judge, a dedicated family court judge for Delaware County, by 2016.

It is reported by the same source that some costs of that new judgeship are to be borne by the county.

The county is the petitioner in child neglect and abuse cases in Family Court in front of the same judge whose "costs of judgeship" the County, at least partially, will bear.

If I would be a parent whose children are threatened to be taken away by that new judge, I would be concerned about the conflict of interest that such a situation presents.

An attorney for that parent, would be concerned both for the issue of the judge feeling obligated to the County in his or her rulings, and for his or her license if the attorney raises that issue in court - because, as I have written in my blog before, judges react to such "sensitive" issues with retaliation against the attorney that can cost the attorney his or her livelihood, and there is no recourse through the appellate process where appellate courts usually endorse whatever the trial judge does in retaliating against the attorney for pointing out the judge's conflict of interest.

Family court proceedings are considered civil proceedings subject to the New York State Court Administrations' frivolous conduct rule allowing judges, in their sole discretion, to impose upon parties and their attorneys sanctions of up to $10,000.00, often without a hearing, plus legal fees of the opponent, also often without a hearing. 

Such sanctions may be immediately followed by a disciplinary action against an attorney.

Thus, any attorney representing a parent in a child abuse or neglect case may ponder whether it is worth it to raise the obvious conflict of interest where the costs of a "judgeship" are "partially" borne by a party in front of the judge.  It might be too costly for the attorney to do his or her job for the client and raise this issue.

For that reason, I feel compelled to raise this issue in a blog, without any regard to any case in Family Court, as a general issue of public concern.

A judge simply may not be dependent on the funds from a party which appears before him or her, however "minor" the cost sharing may be.

That must be a given.

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