"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.

Monday, January 5, 2015

The valiant New York State Bar Association and the Sgt. Schultz defense - see no evil, hear no evil

In 2009, New York State Bar Association surveyed 51 jurisdictions (all the states of the U.S. and the District of Columbia) to verify what kind of discovery, if any, U.S. jurisdictions provide to attorneys in attorney disciplinary proceedings.

On June 4, 2009, after the full survey, the NYSBA came up with the following results (I reduced the results into a table for convenience of reading) :


8 states and 3 out of 4 NYS departments appear to afford little to no discovery (page 5)
6 states and 1 NYS App. Div. Judicial Department “appear to provide” for “limited discovery” (certain kind of document production and witness information, but no express provision for depositions by respondent attorney)

35 states and the District of Columbia appear to provide for a fair amount of discovery (some states make their regular civil rules of procedure fully applicable to attorney disciplinary proceedings)
1.     Nevada
2.     South Dakota
3.     Kansas
4.     Virginia
5.     Delaware
6.     Connecticut
7.     Massachusetts
8.     Rhode Island
9.     NYD AD1st
10.NYD AD3d
11.NYD AD4th

·         Colorado
·         Hawaii
·         Tennessee
·         Michigan
·         Pennsylvania
·         New Jersey
·         NYS AD2d
·         Wyoming
·         Texas
·         New Mexico
·         Idaho
·         Montana
·         Wisconsin
·         Oregon
·         West Virginia
·         Washington
·         Alaska
·         Maine
·         Utah
·         California
·         Arizona
·         North Dakota
·         Oklahoma
·         Nebraska
·         Missouri
·         Arkansas
·         Louisiana
·         Iowa
·         Minnesota
·         North Carolina
·         South Carolina
·         Mississippi
·         Florida
·         Indiana
·         Illinois
·         Kentucky
·         Georgia
·         District of Columbia
·         Alabama
·         Ohio
·         New Hampshire
·         Maryland
·         Vermont

Furthermore, the NYSBA has found in the same survey that New York belongs to the 16 "winner" states who do not expressly apply evidentiary rules to attorney disciplinary proceedings.  The "winners" are:

  • ·         Hawaii
  • ·         New Jersey
  • ·         New York
  • ·         Alaska
  • ·         Massachusetts
  • ·         New Hampshire
  • ·         Ohio
  • ·         Pennsylvania
  • ·         Connecticut
  • ·         Washington
  • ·         Kansas
  • ·         California
  • ·         Oregon
  • ·         South Dakota
  • ·         Mississippi
  • ·         District of Columbia

Nor does New York allow the attorney a public hearing unless it is "allowed" by the court for "good cause shown", so, as I wrote here before, competent adults (attorneys) must ask court's permission to waive their own privacy, a unique situation.

After making all these findings, NYSBA stated that it does not really consider it necessary to change the status quo in New York, but if New York gets around to do that, then NYSBA advises New York to change its rules like the majority of states already did.

No statement that stripping attorneys in disciplinary proceedings of basic rights afforded in other parties in litigation in the same state, such as:

  • discovery (paper discovery, subpoena power for pretrial depositions and at the trial);
  • applicability of evidentiary rules (exclusion of hearsay, for example);
  • public due process hearings

attorneys are deprived of very basic constitutional protections, making the whole attorney disciplinary process unconstitutional.

No, our valiant New York State Bar Association simply stated - if New York decides to come around to change the existing rules (or lack thereof), then it would be advisable to do it as the majority of our neighbors already did, otherwise, changes are not really necessary.

A classic Sgt. Schultz conclusion - see no evil, hear no evil, even when that evil is screaming in your face, according to your own findings.

The new disciplinary rules - that afford no discovery, subpoena power, evidentiary rules or public hearings to attorneys - were introduced on April 1, 2009.

Within 2 months time the New York State Bar Association surveyed 51 U.S. jurisdictions as to availability of procedural rights to attorneys in disciplinary proceedings, verified that New York belongs to the handful of the minority of states that do not provide any such rights - and did NOTHING about it, moreover, stated in the conclusions that no action is necessary to change the status quo.

How can the public rely upon zealous representation by attorneys whose association cannot even fight for equal rights of its members with the rest of New York population?

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