"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, February 22, 2015

New York State of the Judiciary 2015 address - the fake promise of future declarations on "civil Gideon" while presently available "civil Gideon" rights are frustrated

I have written in this blog about how New York courts frustrate access of Pro Se litigant to effective legal representation.

My readers give me feedback that the situation is rampant as to denials of assigned counsel where counsel is badly needed - and where people are entitled to assigned counsel by statute.

Examples are:

Family court and foreclosure proceedings.

In Family Court, judges started to require submission of tax refund information, and disregard the family's debt obligation, including child support and child support the arrears obligations.  With a large refund, even if it has to be applied to the family's mortgage, car payment (and we have no public transportation where I live and practice law, so the car is the only way to get a job and provide a livelihood for the family and children), or court-ordered child support or arrears, assigned counsel is habitually denied in Family Court.

When individuals are appealing from Family Court decisions, appellate divisions impose a payment cap to the assigned appellate counsel which exists no matter how big the record is and can only be extended by pennies as compared to the work that is supposed to be done.

Online research databases are notoriously expensive, local law libraries understaffed, located far away from the assigned counsel (if this is a rural area), are not open during the weekend and evening hours where attorneys are free from court appearances and can do their work on the appeals

Thus, with research practically not covered by the payment cap, with review of large records not covered by the payment cap, indigent Family Court appellants are practically punished for taking the case to trial, as their assigned appellate counsel face the dilemma - to work without payment in reviewing the record, or to skip through it without proper research (which is what is often done).

Thus, the already given right to assigned counsel is frustrated - and Lippman could work at least on not frustrating rights to assigned counsel that already exist before trying to provide assigned counsel in more cases.

In foreclosures, assigned counsel is available to indigent homeowners by statute, but the first time the indigent homeowner appears before the judge to ask for that assigned counsel is usually at the "settlement conference", 60 days after the service of the foreclosure complaint, when the homeowner is usually in default and waived all of his or her affirmative defenses.

Assigning counsel at that point is more or less useless, and the statute does not presuppose a possibility of advising the homeowner of his right to apply for an assigned counsel in the text of the foreclosure complaint, nor to advise the homeowner that he will not be in default until he exercises that right, until the counsel is assigned and has 20 days after assignment to file the Answer and Affirmative defenses.

Also, the same indigent homeowner who has a right to an assigned counsel at the trial level, will be denied that right on appeal.  By the courts over which Lippman supervises and has authority to change these rules, but doesn't, preferring instead to throw around populist slogans like this:

Unrealistic resolutions do not help much.

Resolutions without funding create false illusions and false hopes in people, which is cruel.

Lippman provided no promise that the "joint resolution" he is seeking with the Legislature will have any funding at all.

What "civil Gideon" rights exist now are already watered down and frustrated, as I explained above.

It appears that, for Lippman, it is more important to make "the first statement of its kind" than to make sure the statement will actually work or has sources of funding, or that before he makes such a statement, he mended the holes in how the already existing "civil Gideon" rights are (mis)handled by his courts.

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