Every attorney who regularly appears in front of a certain judge knows the judge's (and his law clerk's) little and not-so-little quirks.
A big quirk of Judge John F. Lambert (of Otsego County, but he is assigned all over the place, Delaware County included) is - conferences.
Remember, people pay from $150.00 an hour upwards to their attorneys to handle their cases. For many people this is a very serious financial burden.
Yet, Judge Lambert, in his pursuit of "resolutions" for both civil and criminal cases (in other words, in pursuit of settlements), conferences these cases to death, thus very possibly causing litigants to be drained of financial resources after conferences and leaving no financial resources to pay their attorney for the trial preparation and to go to trial.
Example # 1. Criminal cases.
A criminal case in the County Court in New York is pretty much streamlined procedure-wise - or at least, it should be.
There is an arraignment.
There is discovery.
There is an omnibus motion to be filed within 45 days of the arraignment, and a decision to be made by the court within 60 days of the returnable date of the motion.
There are motion hearings, if any were ordered by the court as a result of the motion.
There is a trial.
That's it.
Not in Judge Lambert's court.
The majority of appearances the Judge Lambert ORDERS for criminal defendants and their counsel to appear at (and if they do not appear, criminal defendants may be arrested and put in jail for non-appearance), are for conferences.
Even if the criminal defendants and their attorneys did not ask for conferences, and do not want to seek a plea bargain.
The judge still makes them appear at the conference, once again, at the threat of a disciplinary violation for the counsel and at the threat of a bench warrant for the defendant.
What happens at those conferences?
I've been to a number of them and I can tell you.
Attorneys only are being called in a succession into the judge's chambers.
The situation is grossly unfair because your client is not there, but the judge allows presence of police officers and representatives of probation department, all possible witnesses at the future proceedings.
Such conferences are important stages of criminal proceedings, yet, in Judge Lambert's court they are held off record and without the criminal defendant's presence.
It has been very recently reported to me that a criminal defendant asked the criminal defense counsel to NOT engage in conferences with Judge Lambert off record and without the defendant's presence, and the judge still did - as recently as this week.
In my view, this is a gross constitutional violation.
Not only there should be no resolution of a criminal case when the criminal defendant does not know what is discussed behind his back, but it is grossly inappropriate for the court to require the criminal defense counsel to come to court, and forcing the criminal defendant to pay for those trips, which ultimately may result in draining of the defendant's limited funds and inability to proceed to trial - which may be Judge Lambert's way of "attaining resolutions" of criminal cases, especially that conferences in Judge Lambert's court in criminal proceedings are called often, wthout any given reasons and without any apparent necessity for such conferences.
Example # 2. Civil cases.
If in criminal cases Judge Lambert at least "graces" the counsel only with his presence at the conferences, this does not happen in no-less numerous conferences called by Judge Lambert in civil cases.
In those cases, Judge Lambert's law clerk Mark Oursler handles such conferences.
Mark Oursler is not a bad guy - but he is known to be talking incessantly of his own personal interests during the conferences, and attorneys, even though they loathe the waste of time, are afraid to voice their objection against this practice, for fear of jeopardizing their clients' cases.
When I was at conferences with Mark Oursler, he usually talked about Russia - obviously, because I am Russian.
Mark Oursler did not appear to know much about Russia, but he discussed the Russian history trying to claim that he did know it. Mark Oursler was especially invigorated when two Russian attorneys were present at the same time - then he inevitably discussed Russia, and for a long time.
Conferences like that were held off record, and there is no way for the clients later on to verify what was discussed.
To tell Mark Oursler, politely or impolitely, to shut up and get down to business for which the court ORDERED attorneys and clients to drop other business and appear - was out of the question, once again, for fear of what would happen to your clients' case if you do tell Mark Oursler to get down to business.
From my conversations with other attorneys, I know that it is a regular practice, known by attorneys, for Mark Oursler to discuss his personal interests in conferences. Mark Oursler cannot by any stretch of imagination to be called stupid or not knowing court rules, the law, or rules of attorney ethics.
For sure, he knows what he is doing - and I am wondering whether the practice of conferencing civil cases to death, in the absence of clients, off record, while Mark Oursler discusses his personal interests - at a hefty cost to clients - is just a tactic to force "resolution" of cases, in other words, force settlements to clear Judge Lambert's calendar.
And that is for the Committee for Attorney Discipline and for the Commission for Judicial Conduct to investigate - if the will dare to do their jobs and investigate a judge and an attorney working for the judge.
After all - what is at stake? "Only" constitutional rights of litigants that both Judge Lambert and attorney Oursler are sworn to protect.
Since nearly everybody in this country has been sworn to do something, and misconduct in office is rampant, meaning that sworn oaths of office do not mean much for a lot of people, constitutional rights of litigants are usually the last thing that such committees and commissions want to look at.
And that situation needs to be changed.
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