"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.

Thursday, May 21, 2015

Discovery in Family Court proceedings is routinely neglected by assigned counsel

Several readers of my blog alerted me to a problem with assigned counsel in Family Court proceedings - that counsel assigned to them pursuant to Section 722 of the New York County Law, do not do any discovery before trial, do not do any pre-trial motions and do not do any applications for funds for experts and investigators, despite, oftentimes, a dire need for such experts and investigators in particular cases.

Often, people who are speaking to me (prospective clients or simply readers of this blog), while being well into Family Court proceedings, do not even know what discovery is, and claim that their assigned counsel refuses to speak to them, dedicate any meaningful time to them, and did not do any discovery or pre-trial motion that (often reasonably) the clients ask the assigned counsel to do.

I cannot stress enough how valuable pre-trial discovery is for the success of the trial.  It may be, of course, trial strategy of counsel not to do discovery.

Yet, with assigned counsel, since, based on my own experience with Family Court and assigned counsel for opponents of my clients, what it appears to be is not any kind of trial strategy, but a uniform unspoken rule of not doing discovery.

I do not know what is the reason for it, I can only guess.

Assigned counsel is paid by the County where proceedings are conducted, and there are no restrictions on pay for such a necessary work as pre-trial discovery ("reasonable expenses out of court"), unless, again, there is an unspoken rule to assign only counsel who does not do "excessive" work for their clients, such as discovery and motions, and assigned counsel are concerned for their future earnings and do not do discovery (and pre-trial motions) in Family Court for that reason, which has nothing to do with their obligation to their client in the assigned case.

Assigned counsel has power to file ex parte applications in New York, pursuant to New York County Law 722-C for experts and investigators.

In fact, the soon departing Delaware County and Family Court Judge Carl F. Becker has made a point and a policy to repeatedly deny my clients who were eligible under County Law 722-C to receive funds for experts and investigators, their entitlement to those funds funds unless they agree to assigned counsel by Judge Becker instead of me, a private counsel hired by my indigent client's relatives, even though such policy was blatantly unlawful.

Thus, for Judge Becker (and, as far as I know through my own experience and reports of my clients and my readers) entitlement to funds under County Law 722-C are tied to having assigned counsel.

Therefore, an assigned counsel in many courts is the only path to get funds from the court for experts and investigators to do pre-trial work and prepare for trial testimony.

Yet, after years of litigating in Family Court, I have yet to see where an assigned counsel would apply for such funds for experts and investigators and who would present such experts and investigators and their work at trial, and that pertains to proceedings in custody, visitation, Article 8 family offense proceedings, child abuse and neglect. 

What can I say...

The indigent client must know their rights - and should be able to demand from his or her assigned counsel to do their job before trial - or ask the court to change counsel as providing ineffective assistance.

Having or not having done discovery (demands to produce, interrogatories, depositions), subpoening or not subpoening records from public entities for trial (DMV records, criminal records, social services records) which requires a motion to the court, or not doing that, subpoening or not subpoening trial witnesses, asking or not asking for funds for experts and investigators and having them do their work and present it at trial, may constitute a difference between winning and losing your custody, visitation, family offense or child neglect/abuse case.

Know your rights and insist on them.

No comments:

Post a Comment