"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, July 21, 2015

Once again on the composition of the Statewide Commission on attorney discipline - "experts" on the loose

The recent invention of NYS Chief Judge Jonathan Lippman will soon hold the so-called "public hearings" on how to make attorney discipline more "uniform", "fair", and "effective". 

I already blogged about the composition of the Commission and as to how the Commission scheduled the so-called "public hearings" where both the composition and how the "public hearings" are scheduled suggests that the Commission is not serious about its role in changing the situation where attorney discipline is used not for protection of the public, but as a shield for politically connected attorneys and as a sword against critics of such attorneys' misconduct and against misconduct in the judiciary and other branches of the government.

I would like to note once again the point that I made earlier in my blogs in connection with discussion of the case North Carolina Board of Dental Examiners v Jacobs, a case decided by the U.S. Supreme Court that was vigorously opposed by multiple bar associations as bringing about the doom to the way discipline is imposed - by stripping the so-called immunity from lawsuits for actions violating anti-monopoly federal laws of the United States against members of disciplinary committees who are practicing attorneys and players in the same market themselves.

In that blog, posted before the U.S. Supreme Court has made its decision actually stripping the immunity for monopolistic activities of attorney members of disciplinary committees, and before I filed the currently pending request with the Federal Trade Commission to investigate and prosecute all attorney disciplinary committees in New York State for monopolistic activities, as the U.S. Supreme Court provided in North Carolina Board of Dental Examiners v Jacobs, I raised an issue pertaining to the oral arguments in that case that I've heard (audio recordings of oral arguments before the U.S. Supreme Court is publicly available on the Internet).

The issue was raised by one of the U.S. Supreme Court judges - isn't it appropriate to have experts "serve" on such committees, and who other than dentists (or, in the case of the Statewide Commission - attorneys) would know better the ins and outs of the practice of their profession, to see whether an attorney violated rules of ethics and of professional conduct, whether discipline is necessary, and what kind of discipline is necessary.

My response to that question - then and now - is:

Problem No 1 - the role of an expert in any litigation is that of EDUCATOR OF THE FACTFINDER, and only when the factfinder NEEDS such education.

An expert whose knowledge is being used in litigation to inform the factfinder may never BE the factfinder, may never be conflated with the factfinder.

In fact, in all jury trials, attorneys for parties painstakingly weed out attorneys and legal experts from the jury, so that the factfinders make their determinations only on evidence presented, and not be swayed by pre-conceived notions of experts on the jury.

Problem No. 2 - an expert in New York state is not allowed to testify on the ultimate issue of litigation.  It is a settled rule.  Putting an expert as part of the factfinder undermines that rule.

Problem No. 3 - Moreover, even when the expert's knowledge is required, that expert must be NEUTRAL - another must.

When the so-called expert has a vested financial interest in the market he is testifying about, when the expert is deriving income from that market as a participant in that market, his or her testimony is tainted and is inadmissible as a matter of due process, fairness and equity.

Expert neutrality is a well settled rule.

Problem No. 4 - there is no jury to sway on that Commission, all other members-factfinders have vested interest in preserving the status quo, as bad and as stinking as it is at this time.

With that in mind, I would like to focus on two individuals chosen by Judge Lippman to "serve" on the Statewide Commission for attorney discipline.

One is professor Stephen Gillers.

The other is professor Hal Lieberman.

I was educated in law school in legal ethics on books of professor Stephen Gillers.  Those books are still actively sold on and, I am sure, law students all over the country are being taught about "legal ethics" based on Professor Gillers' law books. 

The problem with professor Stephen Gillers on the Commission is problems No. 1  and No. 2, and, I would say, to a certain degree No. 3 - an expert-factfinder, an expert on the jury.  Even if the factfinder would consist, as it should have, of a cross-section of members of the public, since the purpose of attorney discipline is protection of the public, presence of an expert as part of the factfinder rather than as an expert whose opinion is consulted by the factfinder without including the expert into the decisionmaking.

The biography of Professor Gillers suggests that he derives his livelihood from teaching about regulation of the legal profession.

Thus, professor Gillers will not be the one to suggest what the public needs to receive truly independent legal services - a full deregulation of the market of legal profession and liberation of the legal professionals from the slavery of brown-nosing the judiciary under the fear of losing their livelihoods that is in the judiciary's hands, and to turn a blind eye to rampant judicial misconduct occurring in practically every court in this country, for the same fear of losing their livelihood.

Instead, professor Gillers publishes articles such as "Lowering the bar" where he indicates that the public is not properly protected by attorney discipline - but makes no mention whatsoever in that 58-page article of the constitutional infirmities of attorney discipline procedure in New York, its failure to protect the public because of its selective non-enforcement to influential and politically connected attorneys, as well as attorneys who are family, employees or friends of influential people, including judges, of the rampant bad faith and self-interest in the attorney disciplinary committees.

In that same article, "Lowering the Bar", (available on the Internet for free in pdf format, please, look up the article, it's worth it - but there is no way I can interlink on this blog a pdf document  downloadable from that website), which was highly praised in the press, Professor Gillers expresses a belief that attorney discipline in New York is imposed mostly for three reasons:
  • violence;
  • various types of dishonesty in and out of court;
  • neglect of clients.
Professor Gillers makes NO references in his article to the possibility of attorney discipline as:

  • elimination of a successful solo independent competitor by the members of the disciplinary committees, practicing attorneys;
  • elimination of a critic of judicial misconduct, a civil rights or a public defense attorney
Raising such issues will, of course, most likely result in Professor Gillers not being able to "serve" on multiple committees around the country and to lecture around the country on attorney regulation - the sterilized version.

Since Professor Gillers closes his eyes as a scholar to these important topics which should be core topics in protection of the public from truly bad attorneys, there is no reason to expect Professor Gillers to stand up to these issues as a member of the Statewide Commission.

The problems that I see with appointment of Professor Hal Lieberman, adjunct professor of the Columbia Law School, (my personal opinion, protected by the 1st Amendment, as it is on matters of public concern, protection of the public from incompetent attorneys while ensuring true access to courts to all members of the public guaranteed by the 1st Amendment of the U.S. Constitution) are problems No. 1, 2 and, most prominently, 3.

Professor Hal Lieberman was a trial counsel in New York attorney disciplinary committee for the 1st Department for 13 years, as he discloses in his biography for the book on attorney discipline that he sells on Amazon for $209.00 a piece, and is and has been for decades a practicing attorney representing other attorneys before that same disciplinary committee.

In other words, Professor Lieberman is an insider of the attorney disciplinary system deriving his income from the system, and as such, in my opinion, he fails on the issue of expert neutrality - and is especially dangerous as an expert-factfinder whose authority may sway the factfinders.

While Professor Lieberman did raise publicly issues whether attorney disciplinary proceedings in New York are fair, same as Professor Gillers, Professor Lieberman will not seriously consider protection of the public - because such a stance will run contrary to the interests of his paying clients whom he represents before the disciplinary committees and who provide for adjunct Professor Lieberman's livelihood.

Moreover, Professor Lieberman made a statement in one of his articles or blogs which I found disturbing, in one of his blogs, that the fact that disciplinary committees win 90% of disciplinary cases somehow is evidence of attorney discipline being administered "vigorously" and "effectively".

Yet, one area where disciplinary prosecutors do not dedicate any of their otherwise "vigorous" and "effective" work is - criminal prosecutors (and other influential attorneys, of course).

If that is true, then 95% or more of criminal convictions in this country is evidence of vigorous and effective work of prosecutors.  Yet, prosecutors (also licensed attorneys subject to attorney regulation from which Professor Lieberman derives his income) are subjected now to the increased public concern and awareness of their rampant misconduct. 

Moreover, the system of criminal justice rendering 95% of criminal convictions and the highest in the civilized and uncivilized world rate of incarceration per capita of population in a for-profit run prison system is the target of increasing criticism around the world - and, most recently, in the presidential address. 

Hal Lieberman, a professor, a lawyer and an insider of the disciplinary system, simply cannot be so naive as stating that 90% success rate (and maybe higher) of disciplinary committees in New York is the result of those committees' hard effective vigorous work - and not the crooked way the system is set and the even more crooked way in which the system works, whitewashing the high-and-mighty attorneys and dedicating the "limited" resources in a seemingly unlimited way against whistleblowers of judicial misconduct, solo criminal defense and solo civil rights attorneys.

I have written on this blog extensively, with documentary examples, of bad faith, fraud, incompetence and outright political retaliation in attorney disciplinary committees.

Multiple attorneys cited in multiple lawsuit rampant misconduct of attorneys in disciplinary committees.

Recently, a lawsuit was filed as to the policy of the 1st Department disciplinary committee, where Professor Lieberman worked for 13 years, of a long-standing policy of white-washing and destroying files and complaints against politically connected attorneys.

Recently, I FOILed statistics on attorney discipline in New York.  New York Court Administration, the same court system under the guidance of the same Judge Lippman, denied me access to that statistics and to records of appointments to the disciplinary committees.

It appears that New York court system - intentionally, in my view - does not keep statistics as to whether discipline is imposed upon solo attorneys, civil rights attorneys, criminal defense attorneys disproportionately to attorneys from large law firms employing relatives of judges.

Archives of complaints in the disciplinary committees are not preserved.  I know it for a fact as to the 3rd and 4th Department where I have personal experience with denial of access to those files, on my own behalf and on behalf of my client (and husband), and with denial of my complaints against attorneys working for or connected to the government, with the letters of denial being template letters bearing no file numbers of attorney names and preventing the tracking of the disciplinary files of such attorneys.

In fact, in the 1st Department disciplinary committees, according to an insider's lawsuit of attorney Anderson, complaints against politically connected attorneys are destroyed and whistleblowers of that misconduct, such as attorney Anderson, fired.

Lawsuits against disciplinary attorneys are routinely dismissed on grounds of "judicial" immunity.  Yet, disciplinary attorneys act as prosecutors - part of executive branch - in courts which legislate, adjudicate and, through disciplinary committees as "arms of the court", prosecute attorney discipline, a complete disdain to the concept of separation of powers or the true rule of law.

None of that I saw in Professor Lieberman's blog, or his articles.

I guess, touching upon issues that are too sensitive, which are at the core of what is wrong with the legal system, which are at the core of why there is no hope for truly independent legal representation in the State of New York while attorney regulation exists the way it does, may undermine financial well-being of the "expert", and, as part of the Commission, investigator and trustee of public safety and of public access to legal services. 

In my personal opinion, it appears that Professor Lieberman's vested financial interest in preserving the status quo of attorney regulation - including his insider ties to the industry and his income derived from representing attorneys before disciplinary committees and being on speaking terms with attorneys in such disciplinary committees - undermine the neutrality or appearance of neutrality, for that matter, of Professor Lieberman as an expert/participant in the Statewide Commission that is seeking to establish uniform and fair attorney discipline while protecting the public.

For that reason, I will not really be holding  my breath waiting for reports from the Commission advised by such experts.

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