"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, April 27, 2015

The dead appearance of impropriety - the Kansas way

In one of my previous blog posts today I described the so-called "appearance of impropriety standard" as applied to judges and how judges eliminate that standard, without abolishing it, simply by applying "rules of discretion".

Kansas went further than that, eliminating the "appearance of impropriety standard" as applying to lawyer disqualification.

Example - a prosecutor represented you before, and now is prosecuting you in a criminal case.  Of course, the prosecutor knows a lot of privy information about you that he can use against you in the criminal case (whether he openly does it or not).  

At least, his or her prosecutorial discretion to 

(1) bring the charges,  
(2) maintain the charges and 
(3) offer you certain plea bargains or not, as well as 
(4) request certain pre-trial arrest, custody and bail options, and 
(5) request certain post-conviction punishment/sentencing options - 
all of that will be informed by privileged information obtained through prior representation, while you will never be able to prove it without relying on the "appearance of impropriety" standard, for the obvious reason that you cannot X-ray the prosecutor's mental activities.

Yet, now the "appearance of impropriety" standard for attorney, established in many states by ABA rules of professional conduct as well as by state case law and federal constitutional law, the standard which, in the case of a criminal prosecutor or an attorney working for the government becomes a federal due process standard protected by the federal pre-emption doctrine, is now dead in Kansas.

The Kansas Supreme Court simply abolished it, scrapping 18 years of precedent, and I wonder why.

The reason why is, very likely that the Kansas Supreme Court, consisting of judges who are not serving for life and will at some point re-enter the legal profession, and whose relatives or friends may be attorneys, ruled in favor of the legal profession that finds it increasingly difficult to stay afloat because of shrinking base of clients who can afford to pay high fees dictated by attorney marketing which operates not as consumer protection measure, but as a market restrictions by lawyers for (politically connected) lawyers.

That appears to be the only reason why a perfectly good 18-year precedent was scrapped and why lawyers are allowed a wider latitude to represent clients with potentially conflicting interests.  Otherwise the poor lawyers will starve and will not be able to hire judges at the end of their judicial careers.

And that, ladies and gentlemen, is an appearance of impropriety that nothing can abolish.  It stinks.

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