"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, January 7, 2015

Collateral estoppel, attorney discipline, judicial discipline and equal protection of laws

It has become fashionable New York attorney disciplinary committees to pull attorney licenses without a due process hearing - on the basis of the so-called "collateral estoppel". 

In other words, if a judge makes a court decision adverse to an attorney (even an arbitrary decision, a wrong decision, a retaliatory decision, and a decision without any hearing), and another judge, on the appellate level, affirms that sanction out of the sense of camaraderie with the lower-court judge, the disciplinary court does not have to go through a hearing before disciplining the attorney - it can just apply the "collateral estoppel" to "prevent relitigation" of issues of fact.

A very convenient concept, saves to the disciplinary courts and prosecutors a lot of time.

The Disciplinary Committees of the 3rd and the 4th Department tried to pull that trick on me - and so far failed, but only (in my perception) so that the court can say - here, we gave her a "due process hearing" (without pre-trial discovery, right to subpoena witnesses, an open hearing public hearing and in front of an elderly referee with perception and memory problems).

Yet, it just occurred to me, when I was comparing judicial discipline and attorney discipline that collateral estoppel from a CIVIL court can never be applied to judicial discipline - and never is.

You know why?

Because judges granted themselves absolute judicial immunity, even for malicious and corrupt acts on the bench, and thus made sure that they may not be sued, judgments against them may not be obtained - and thus the collateral estoppel principle, and the resulting deprivation of the due process hearing, what judges regularly do to attorneys - may never apply to judges themselves, in their own disciplinary proceedings.

Isn't such a foresight wonderful?

What is also wonderful is the judicial profession allowing its participants to create multiple benefits for themselves - including unlimited power, including power of retaliation against your critics, and zero accountability.  A dream job.

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