"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, January 11, 2015

The moment of truth is coming as to whether attorney disciplinary proceedings in New York are really meant to protect the public

I keep reading scantily available materials about attorney disciplinary proceedings in New York.

More or less, they boil down to this:

1)  Most of the attorneys, with all the law school and CLE training, do not know the disciplinary rules, do not know how the courts apply those disciplinary rules, and do not know procedures of disciplinary committees. 

2)  New York is the only state among U.S. jurisdictions where discipline of attorneys is being conducted at the level of intermediate appellate courts.  For this reason, there are differences in rights that attorneys have depending on their geographical location within the State of New York, as there are 4 intermediate appellate courts in the state of New York, and each one of them have their own set of procedural rules which differ, sometimes greatly, from one another.

3) Decades after the U.S. Supreme Court called an attorney's right in his work as a fundamental due process interest, New York treats it as a mere privilege, with the respective low burden of proof on the prosecution - the lowest among all court proceedings in New York - by fair preponderance of the evidence.  New York explains it by the interests of society that outweigh the interests of the attorney in such a proceeding.  Apparently, in the opinion of the New York State Court of Appeals that issued that decision (In Re Cappoccia), the higher the interest that the state has, the lower the protection for the individual that is subject to government prosecution must be.

New York is not unique in this.  Recently I wrote about a decision of a West Virginia judge who rejected an attorney's 1st Amendment challenge in a disciplinary proceeding for criticizing a judge and a request to apply the normal high review standard usually applicable to speech protected by the 1st Amendment.  The court rejected the high standard of review and indicated that the high interests of protecting the public (obviously from criticism of public servants) outweigh the attorney's right to 1st Amendment protections.

I already wrote that such logic flies in the face of the Supremacy Clause of the U.S. Constiuttion that each judge taking office, whether state or federal, is sworn to uphold.  Judges seem to forget the contents of the U.S. (and State) Constitutions the moment they take that oath and start treating constitutional arguments as frivolous arguments.

But, if the logic that the higher the interests of the government/public to be protected, the lower should be the protections of the prosecuted individual, we should try and convict people of premeditated murder by an administrative hearing with hearsay admissible, because nothing is more important than to protect the public from potential murderers.

Civil rights protections obviously work the other way - if a government prosecutes a person, and if what is at stake is the loss of livelihood and investment of a lifetime, and a potential life of a pauper and an outcast, since future employment opportunities of disbarred attorneys in any field are bleak, attorneys in disciplinary proceedings should be given MORE protection, not less, no matter how important the public interest is that the government is protecting.

Now on a more personal wave, over the years that I defended my husband in a disciplinary proceeding, and now myself, I have done an overwhelming amount of research of how attorneys are - or are not - investigated and prosecuted by disciplinary authorities, and I can definitely, based on sheer numbers of stories that I found about high-standing attorneys involved in egregious misconduct warranting suspension or disbarment who were never publicly disciplined, as opposed to the numbers of civil rights attorneys who get suspended and disbarred in droves, mostly for their professional activity and independence.

The ultimate testing for me is going to come tomorrow at the scheduling conference of the hearings in my disciplinary proceedings.

I am going to ask the referee (as I already asked the disciplinary court, in writing) to open my hearing to the public, and to provide me an opportunity to compel appearance of witnesses and production of records as exhibits, in admissible format, in numbers that I consider necessary for my defense.

I wonder whether the public that is allegedly sought to be protected by the disciplinary proceedings will be allowed to watch how it is being protected.  After I posted an invitation to my proceedings on social networks, I received some inquiries from people who actually want to come and watch my disciplinary proceedings.  

I am grateful for that interest, whatever the motivation for it was, as watching such proceedings, watching the prosecution trying to discipline me for non-existing violations despite court documents in my favor that the prosecution should have reviewed before starting the proceedings in 2 years ago, may become the ultimate eye-opener for the taxpayers.

False allegations that the government continues to be stubbornly prosecuting against me are prosecuted on the taxpayers' money, so taxpayers might need to at least be on notice as to how their hard-earned money are spent.  I am positive New York taxpayers did not give their taxes to the government in order for some public officials to use that money to settle personal scores and run fraudulent prosecutions.

Not to allow the public into such proceedings, despite my express waiver of my own privacy, would be not only a due process violation toward me, but also an extremely and insultingly condescending and paternalistic approach by the state toward the public.  The public, the taxpayers, have a right to know how its own interest are (or are not) protected, by the way, at the public's own expense.

I will report on the outcome of the conference tomorrow.

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