"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

If a separate state commission for prosecutorial misconduct is a necessity, attorney licensing does not have legitimacy

A year ago, with much fanfare, New York Senate announced introduction of a bill for creation of a state commission to deal with rampant prosecutorial misconduct in this state.

The headlines presented this bill as a revolutionary event "poising" New York to become the first state in the nation to deal with the issue of prosecutorial misconduct on legislative level.

One year later, there is no discernible movement on the bill, even the sponsor of the bill, Senator John A. DeFrancisco, presented the bill on YouTube recently - with a resulting whopping 45 views as of today.  

I also believe that even the necessity of creating such a commission deals a heavy blow to legitimacy of attorney licensing.

New York maintains 8 (!) attorney disciplinary committees, 

  • 1 in the Appellate Division 1st Department;
  • 3 in the Appellate Division 2nd Department;
  • 1 in the Appellate Division 3rd Department, and
  • 3 in the Appellate Division 4th Department
These 8 committees have a duty of dealing with attorney misconduct.

Prosecutors are all licensed attorneys.

Therefore, there are already IN EXISTENCE governmental bodies with a duty to address prosecutorial misconduct, as a sub-species of attorney misconduct in general.

The need for attorney licensing is declared to the public to be justified because attorney licensing (and attendant discipline of attorney misconduct) allegedly protect the public from attorney misconduct.

Because of the need for a separate commission to deal with prosecutorial misconduct, it is apparent that that need is not satisfied, and not only in New York, but across the nation.

If misconduct of a particular class of attorneys, nearly the most powerful class of all attorneys (after judges), is systematically not addressed, leaving the public exposed to egregious harm from that misconduct, the question is - doesn't such non-prosecution of prosecutors undermine legitimacy of attorney regulation?

In my opinion, it does.

And you know what is wrong with Senator DeFrancisco's bill and why (in my opinion) it lacks credibility?

Listen to Senator DeFrancisco's video presentation of the bill.

Around 5 minutes into his speech, Senator DeFrancisco says that "almost all prosecutors do their jobs properly" and that the bill is allegedly only against a tiny number of prosecutors who commit misconduct.

Come on, Senator DeFrancisco.

You really lose credibility when you say that.

You wouldn't have introduced this bill if prosecutorial misconduct would not be rampant.

I, as a criminal defense attorney, have to see, as yet, a prosecutor, who would NOT conceal Brady material, who would NOT overcharge in order to coerce the defendant to plea-bargain, who would NOT intimidate defense witnesses, etc. etc. etc.

Such actions of prosecutors are now routine, and they are routine because of the absolute prosecutorial immunity that covers all prosecutors for any malicious and corrupt conduct during his or her prosecutorial activity, and because of a complete lack of disciplinary consequences as an attorney.

And absolute power breeds absolute corruption.

When you recognize that, Senator DeFrancisco, maybe your bill will gain a little bit of credibitility - which it totally lacks now.

And, by the way, modeling the proposed state commission on prosecutorial misconduct on the New York State Commission for judicial misconduct (a glorified shredder of public complaints against judges) is as good as announcing to people that it will be yet another waste of time and money and another decoy, a "Potiomkin village" meant to deflect public anger at unbridled prosecutorial misconduct by an appearance that it is "being taken care of".


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