"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.

Friday, January 2, 2015

West Virginia joined the states punishing attorneys for criticism of judges, 1st Amendment be damned

Wouldn't you want to live in a dream world where you can eliminate your critics by taking away their licenses? 

Then, run for a judge and you can do it to your heart's desire, the 1st Amendment be doomed. 

West Virginia joins the states that discipline attorneys for criticism of judges - even though such criticism is a statement on the issue of grave public concern (integrity of a public officer), is in the core values protected by the 1st Amendment, an attorney has a duty to assure his or her client's right to an impartial adjudication (a fundamental constitutional right, by the way), discovery of judges' backgrounds in most states is unavailable, so the rules of judicial conduct require judges to recuse if there is even an APPEARANCE of impropriety. An appearance of impropriety is measured by a person's reasonable PERCEPTION. 

Yet, for purposes of discipline, a West Virginia judge required from an attorney FACTUAL BASIS for his statements and not reasonable perception. 

Thus, the right to an impartial adjudication of the litigant, and the right of the litigant to effective, independent, zealous and fearless representation was trumped by the fact that the objects of the criticism (judges) hold the livelihood of the critics (attorneys) in their hands. And in viciously pursuing such critics to the bitter end, revocation of their licenses, judges do not care whether they violate the U.S. Constitution which gave them the power to sit on that bench in the first place.

The interesting detail is that the disciplining judge, Justice Margaret L. Workman stated while disciplining the attorney that "the interests sought to be protected by the attorney disciplinary system require a less stringent standard than the actual standard", and with this statement Justice Workman rejected the attorney's 1st Amendment challenge.

I wonder if Judge Workman is aware of the concept of the Supremacy Clause of the U.S. Constitution with the resulting pre-emption rule of federal law over inconsistent state law.  She should be aware of that clause, since she, as every judge in this country, took office swearing an oath of office as a pledge to uphold the U.S. Constitution, together with the Supremacy Clause and the 1st Amendment.

While the judge made a statement about the interests the attorney disciplinary proceedings sought to protect, there is no indication the judge paid attention to the interests the 1st Amendment was seeking to protect.

In fact, the higher the stigma and the consequences for the litigant, the higher should be the standards of protection, not the lower, as judge Workman stated.

But, of course, when "the interests sought to be protected" in this particular case, to shield judges from the most knowledgeable, capable, credible and eloquent critics - the attorneys who know what is going on in court better than the occasional litigant and whose statements would thus be believed by the public - those self-serving interests of the class of the judiciary, which class included Judge Workman herself, of course, trump everything, including the U.S. Constitution the judge pledged to uphold.

Following the logic of the judge, that the higher the government's interests in the proceedings, the lower should be the standards of defense afforded to litigants, criminal defendants should not be afforded any protections at all, because of the interests the state has - to protect the public from crimes.  Yet, the law is quite the opposite - the higher the possibility of a stigma and the graver the consequences to the litigant in terms of potential loss of civil rights, the higher should be procedural and substantive protection for the litigant, and NOBODY in this country, including judges, has authority to cancel protections of the U.S. Constitution, in ANY proceeding, for ANY reason.

Actually, when the government seeks to take away people's fundamental rights, such as, in the attorney disciplinary cases, a right to earn a living in the chosen profession and calling, an elevated standard of scrutiny, the so-called strict scrutiny, is applied by the U.S. Supreme Court.

Judge Workman should do a refresher course in constitutional law before being allowed on the bench since she demonstrated incompetence in constitutional law that would have garnered her a failing grade in law school and on a bar exam.  But - when you already made it to the bench, competence is not important any more, is it, as long as you can wield your power they way you want it?

The interests that the attorney disciplinary proceedings are sought to protect is - to protect the public from attorneys who are unfit to practice.  The lawyer was disciplined, on the opposite, for attempt to protect  his client and assure for his client an impartial judge.  Shielding judges from criticism, rightful or wrongful, is not within the purpose of attorney disciplinary proceedings and attorney disciplinary proceedings should not be used as a sword wielded by the judiciary against its critics rather than for the true protection of the public.

An attorney should never be disciplined for attempting to do his job right, the way he understands it.

Independence of court representation is the cornerstone of democracy, much more important than super-sensitive sensibilities of judges who should not take this office if their temper cannot withstand criticism without lashing out against critics.

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