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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