"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.

Tuesday, May 26, 2015

As long as a judge violates the law without "impure motives", that's ok

Here is what the website of the New York State Administration says about retirement of attorneys from the practice of law:

So, full-time judges are deemed retired from the practice of law and may not practice law as a requirement of two provisions:

I. New York State Constitution:

    • Article VI paragraph 20.b(4)
  • b. A judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate's court, judge of the family court or judge of a court for the city of New York established pursuant to section fifteen of this article who is elected or appointed after the effective date of this article may not (4)  engage in the practice of law, act as an arbitrator, referee or compensated mediator in any action or proceeding or matter or engage in the conduct of any other profession or business which interferes with the performance of his or her judicial duties.
  •              "(2) In addition to any temporary assignments
             to which a judge of a city court may be subject
             pursuant to paragraph one of this subdivision,
             such judge also may be temporarily assigned
             by the chief administrator of the courts to the
             county court, the family court or the district court
             within his or her county of residence or any
             adjoining county provided he or she is not
             permitted to practice law."

II.  22 NYCRR 118.1(g)

Yet, despite the above requirements of the law, judges give legal advice left and right to litigants, their attorneys, engage in secretly giving legal advice to friend and family members and, when caught red-handed, claim that they really did not do any harm, as Judge Robert Harlem said in his affidavit to the Otsego County Surrogate Nettie Scarzafawa (see my blog post the Blanding saga).

This is what the retired Judge Robert Harlem said in his affidavit to the Otsego County Surrogate's Court:

Apparently, it is not enough for the judge that he has violated his constitutional oath of office and the court rule pertaining to full-time judges deemed to be "retired" from the practice of law, 22 NYCRR 118.1(g), with all consequences of such retirement, that a retired attorney may not continue to practice for a fee.

The fee of Judge Harlem from Beatrice Blanding was tremendous see the will he has drafted with multiple bequest to himself listed in the Blanding saga post.

Yet, to Judge Harlem, violating the State Constitution, the court rule and his own oath of office to uphold the State Constitution is not bad enough, and he is trying to justify himself by his closeness to the decedent and by not having "impure motives".  Obviously, self-bequests of hundreds of thousands of dollars worth of property was not impure motives in the late Judge Harlem's eyes.

Judge Nettie Scarzafawa accepted that argument, did not sanction the retired judge and her own predecessor for unauthorized practice of law and defrauding the court, and, soon after that decision, stepped down from the bench in 2000, allegedly to take care of her elderly mother.

Retired Judge Nettie Jean Scarzafava was married to John Scarzafava until his death in 2014.  John Scarzafava was hired by Richard Harlem as a trial attorney in the Mokay action, a complete discqualification of which Richard Harlem knew. 

Richard Harlem also hired the law firm of my husband's disciplinary prosecutor (who was supposed to prosecute Richard Harlem and his father on my husband's complaint about their fraud).

John Scarzafava had the good grace to eventually refuse to represent the Mokay plaintiffs in the Mokay saga.  

John Casey's law firm, Hiscock & Barclay of Albany, NY, didn't have such good grace, and continue to claim attorney fees (which Judge Lebous, retaliating against exposure for his personnel's ex parte communications with Richard Harlem's attorney, granted).

John Casey and his law firm are exposed at this time to liability for antitrust violations, based on the U.S. Supreme Court's new pronouncement in North Carolina Board of Dental Examiners v. FTC in February of this year.  We will see how that lawsuit will proceed.

The interesting part about availability of discipline against judges practicing law is that attorney disciplinary committees refuse to prosecute them, claiming that any conduct committed by a judge during his or her judgeship is subject to only judicial discipline and not attorney discipline.

An even more interesting part is that retired judges who discharge judicial functions as judicial hearing officers are not subject to judicial discipline, because they are no longer sitting judges (and the New York State Commission for Judicial Conduct claims it does not have jurisdiction over their discipline) and are not disciplined by attorney disciplinary committees, because for attorney disciplinary committees such retired judges appointed as referees or judicial hearing officers are still "judges" and, as such, are beyond attorney discipline.

Attorney discipline and judicial discipline in New York are two fascinating subjects...

Now, try violating the law and then appearing in a court of law, admitting the violation, but claiming that you really did not have impure motives to violate the law.

See how far you will get with that argument if your are not a judge.

Of course, you should choose to run this experiment in your mind - if you are not a judge.  It may have dire consequences for you, because not only your lack of "impure motives" does not matter if you violated the law, and knowledge of the law that you violated is PRESUMED in EVERY PERSON - and, of course, it was presumed in a Supreme Court judge and Chief Administrative Judge of the 6th Administrative District, as Robert Harlem was.

So - once again, let's raise our glasses for the rule of law in the State of New York that exists in our aspirations - and nowhere else.

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