"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.

Wednesday, August 12, 2015

Testimony of an ethics professor before the New York Statewide Commission for Attorney Discipline: head in the sand and interesting revelations

I wrote on this blog about the New York State Commission for Attorney Discipline - its composition made of market participants only, the way the Commission staged its hearings with testimony "by invitation only", with extremely short notice to the public, held during vacation period, during lunch hours, 2 hours at a time for three days in different locations - all meant to make sure that the least possible number of people shows up.

I also wrote about experts who are members of the Commission and who have a vested interests contrary to the Commission's declared goal - interests to preserve the current status quo in the legal profession and attorney discipline rather than change anything.

Today, I received from a friend a link to the testimony by Professor James Milles, a person privileged enough to have been invited to "testify" before the Commission, published by Professor Milles on his blog.

Update: Since ethics Professor James Milles, after I criticized him in this blog and in court pleadings, removed his proud blog boasting of his unethical conduct, and now you can see only some hieroglyphs if you follow the link to Professor's blog, his testimony can be still read in the official transcript of the New York Statewide Commission for Attorney Discipline, here. 

James Milles is the professor of Legal Ethics in Buffalo Law School.

What Professor Milles said in his testimony before the Commission, and what he did not say in his testimony, is very revealing as to how the legal profession operates and how it grabs and trains new recruits.

First of all, it is very telling what Professor Milles does not say in his testimony.

You will look in vain for such words as "constitutional" or "unconstitutional" in his testimony.

You will look in vain for any meaningful analysis of disciplinary process, or for any analysis of possible constitutional defects in that process.

You will look in vain for coverage in Professor Milles' testimony of the issues of:

1)  selective enforcement and non-enforcement of attorney discipline based on status and connections of attorneys;

2) antitrust and anti-competitive conduct of attorney disciplinary committees in pursuing attorney discipline;

3) separation of power issues in attorney discipline, both on the court side and on the side of disciplinary committees;

4) the effect of attorney discipline imposed by judiciary on independence of legal representation;

5) fear of judicial retaliation for pointing out judicial bias or misconduct and the resulting fear and unwillingness of attorneys to address such issues of public concern in pleadings, mostly because attorneys are regulated by the same branch of the government whose misconduct they have a duty to challenge, with the resulting lack of independence and inefficient representation of clients;

6) vague and arbitrary rules that allow to apply attorney discipline as a tool against dissenters, but allow real violators of ethics to escape discipline;

7) lack of proper records pertaining to attorney discipline;

8) lack of transparency of attorney discipline, which hurts both the public and the disciplined attorneys, 

9) that the right to practice law (to engage in an honest profession in accordance with one's calling) is considered a privilege in New York rather than a constitutional right, as the U.S. Supreme Court said it is, with the resulting less procedural and substantive protections in attorney disciplinary proceedings.

and many other pertinent issues.

Since there was so little time afforded for testimony-by-invitation and the subject of imposition of attorney discipline is so pertinent to both livelihoods of hundreds of thousands of people, as well as to the right of access to court that attorneys are meant to ensure, any law professor invited to testify before the commission was, in my opinion, duty bound not to present the commission with a bunch of niceties and common places in his testimony, but to take the bull by the horns and analyze what bothers both the legal community and the public, and is the subject of raging debates in courts and in the social media.

Didn't happen.

What happened is a quote in the testimony by Professor Milles to the book authored by a member of the Commission Professor Gillers - which is clearly inappropriate and, to me, a violation of legal ethics by an ethics professor.  To me, it amounts to brown nosing to quote a book of a presiding decision maker in one's testimony, as such citation has an appearance to gain that decision-maker's favor.

Imagine that you get on a witness stand and say: "I read your book, judge, and I am so very impressed".

Second, it is very telling what Professor Milles does say in his testimony - and especially HOW he says it.

Since the issue of attorney discipline prompted the Chief Judge of the State of New York to create a whole Statewide Commission, to address fairness and uniformity of discipline, and since the declared goal of attorney regulation and attorney discipline is to actually protect consumers of legal services, the public, the testimony before the Commission should, at the very least, be understandable to the public.

Yet, Professor Milles, often in his testimony, spoke in riddles well-laden with legal terms that are devoid of real meaning, and those terms, to me as a prepared reader who knows both the term, the background and what the terms really mean, it appears that certain statements by Professor Milles were meant to obscure the real purpose of certain deliberate gaps in law education, and meant to obscure what Professor Milles is likely afraid to say - that to insist on the rule of law rather than learning the "customs" of judges that lead to "significant variation" of judicial decisions is a career suicide for an attorney.  

I also wrote on this blog that learning the customs and quirks of certain judges have become a business for attorneys, for judges who present such quirks at CLE courses, during taxpayer-backed time, likely for payment.

I wrote that such "continued legal education" courses and the whole concept that, attorneys can satisfy their licensing requirement by learning about "pet peeves" of judges to "better represent clients" is undermining the whole concept of the rule of law which should be blind, uniform, predictable, equally applied and not related to whether a certain attorney attended a CLE course held by a certain judge and paid for that judge's lecture as to what that judge's "pet peeves" are.

Professor Milles, citing to another law professor, from San Diego School of Law, tiptoes around the issue of arbitrary enforcement of the law in courts.

Professor Milles simply quotes:

           "One of the hardest things to teach students is 
            how to deal with the sometimes significant variation 
            in judicial reactions to similar conduct. . . . 
            ‘Pay close attention to custom’ is helpful, and 
            an obvious point, but I do find that students 
            throw up their hands and tend toward nihilism 
            when they perceive how much variation they will face. 
            Teaching realism without nihilism is important 
            but tough.”[11]

Let's translate this quote into plain English.

1/ Law professors acknowledge that "significant variation in judicial reactions to similar conduct" is a problem.

2/ Law professors acknowledge that such "significant variation" may and does cause law students (and lawyers in the future) to "throw up their hands" and "tend toward nihilism" - which is, in my understanding, a roundabout way of saying that when seeing that judicial decisions are plain arbitrary and all over the place on the same issue, law students lose faith in existence of the rule of law, which requires equality, uniformity and predictability of application, which undermines the whole idea of legal ethics;

3/  Law professors acknowledge that they teach law students to "pay close attention to custom", or "pet peeves" of certain judges, which is completely contrary to the whole idea of the rule of law or legal ethics;

4/   Law professors acknowledge that they continue to "teach realism without nihilism", or that they teach, instead of true legal ethics, a course in how to best brown-nose a judge by knowing of his "customs" in order to win a case.

Well, at least in the above statement Professor Milles gives credit to the law student's intelligence, that they weed through the "frames of reference" of law professors and see the core of the problem, arbitrary enforcement of laws, which is a constitutional problem and one of the reasons as to why the judicial system is currently in crisis and lost and continues to lose public trust in its integrity or effective operation.

Professor Milles went further and hinted that it may be that law professors are deliberately limiting knowledge by law students of the disciplinary process so that law students would not engage in ethical violations when they become attorneys.

I am not kidding.

Here is Professor Milles' statement published on his own blog:

           "However, another reason for neglecting disciplinary
          sanctions in legal ethics courses may be a concern 
          that teaching students about sanctions may contribute 
          to disrespect for the disciplinary process and disregard 
          of the ethical rules."

And then:
          "Despite the explicit guidance of the Rules of Professional 
           Conduct, what the bar and the courts choose to sanction, 
           and what sanctions are imposed, may say more than 
           the rules do about the real values of the profession.[1]"
  So, in other words, Professor Milles acknowledges that law schools prefer not to teach law students about the disciplinary process because they think that if law students know how attorney discipline works, or how arbitrary application of attorney discipline is, such knowledge will encourage law students to commit ethical violations.

Good grief!

First of all, in New York as in any other state, there is such a thing as a "presumption" of knowledge of all laws.

So, those same students who are deliberately not taught about attorney discipline, are "presumed to know" about attorney discipline - same as every lay member of the public, including illiterate ones.

This presumption exists to encourage members of the public to learn what laws are, in order to be on notice of the laws and to obey them.

Here, a professor of legal ethics admits that to teach law students, future lawyers and judges, about the law of attorney discipline "may be" an equivalent of encouraging these lawyers to violate rules of ethics.

It also says a lot of the low esteem that law schools have of the caliber of law students they recruit and teach.

If a law student, after learning what attorney discipline is, how it is enforced (or not enforced), will supposedly rush into violating of rules of legal ethics, that is to say that the only thing that prevents lawyers from violating rules of ethics is if they are kept by their law schools in deliberate ignorance of the laws.

Once again, good grief!

Sounds to me like a Dark Age religious zealot who would cackle from a pulpit that too much knowledge is from the devil and should be discouraged, not as a modern times law professor.

By comparison, if a member of the public knows about arbitrary enforcement of criminal laws, he or she will rush into violating criminal laws, so let's keep the public ignorant as to existence of criminal laws and how they are applied?  That's the key to law and order?  Ignorance?

If a person learns about the law that provides a procedural protection in the defense against charges of rape and murder, he will immediately go out into the streets to rape and murder?

Everybody has a right to an opinion, of course, but an opinion that ignorance as to problems with enforcement of attorney discipline will lead to deliberate ethical violations by lawyers, coming from the lips of a law professor, is a disservice to the law students he teaches - and that is my personal opinion.

So, presumably, only unethical individuals who only look how to violate rules of ethics, apply to law school, thus making it necessary for law schools to deliberately not teach them about attorney discipline or how it is applied?

And generations upon generations of such law students were thrown upon the unsuspecting public to represent them in court, and states give them monopoly for such representations and, moreover, require that judges be necessarily lawyers and thus members of that presumably unethical class of people?

If that is so, the profession is doomed beyond repair.

*   *   *

I suggest that the real reason as to why students are not taught about disciplinary process is less lofty and more prosaic than what Professor Milles cared to reveal in his testimony.

Law schools are businesses.

They need to recruit law students to survive.

Law education is a very costly investment.

Practice of law usually does not give room to any other business activities, it consumers the attorney's entire time.

If an attorney loses his or her license, he or she is usually blackballed from working anywhere in or near the legal profession, even as a secretary or office assistant, and he or she knows nothing else.

Moreover, losing a law license will adversely affect a suspended or disbarred attorney's ability to get any other license or certification, since during certification process you are invariably asked a question whether you have ever lost a license in any profession.

If law students are taught early into their law school studies, when not too much money or time was invested yet, just how volatile their supposedly lifetime investment into the legal education is, how much it depends on arbitrary decisions, made on a whim, out of spite or in clear retaliation for their professional activities (such as motions to recuse, complaints about judicial misconduct or, God forbid, lawsuits against a judge or other members of the government), many students will choose not to proceed with the education and will take their money elsewhere.

That may be the real reason as to why students as investors into costly legal education are kept in the dark about problems with reliability of their investment.

Which, to me, is a type of fraud by omission against investors and should be exposed as such.

That law professors, professors of legal ethics of all people, knowingly do not include the most important information about reliability, or rather, unreliability and volatility of financial investment in legal education for their law students, and thus mislead them into, possibly, a major financial mistake and disaster of their lives, is downright disturbing.

           *    *    *

As a conclusion, I must point out an interesting discrepancy in Professor Milles testimony that may affect all attorneys who have ever undergone discipline in the State of New York - or who is undergoing it now.

Professor Milles did cite to a case of the New York State Court of Appeals indicating that the main goal of attorney discipline is deterrence.

That case is the basis for New York to apply the lowest possible burden of proof for the prosecution in such disciplinary proceedings - by preponderance of the evidence, and claiming that attorney disciplinary proceedings are civil proceedings, not quasi-criminal, as the U.S. Supreme Court found long time ago.

Yet, Professor Milles, throughout his testimony, refers to ABA-issued standards and makes his own statements which are apparently a reflection of consensus in law professors' community that attorney discipline has, as one of its goals, punishment.

Now, any first year law student who took a Criminal Law 101 course knows that the purpose of criminal proceedings are 4-fold and include the following goals:

1/ punishment;
2/ deterrence;
3/ disability (of perpetrator);
4/ rehabilitation.

So, once a goal of punishment is acknowledged, the proceeding must be deemed criminal, not civil, with all attendant procedures required by state and federal law for criminal proceedings.

Yet, in New York attorney disciplinary proceedings, though now admittedly punitive in nature, are deemed "civil", and afford even less protections than other civil proceedings - in procedure, discovery rights, subpoena rights, appellate rights (or, rather, lack thereof as to all of the enumerated rights).

So, at least something borderline positive came out of Professor Milles testimony - and that is implied admissions and revelations that can be discerned from Professor Milles' statements which paint a disturbing picture as to how attorneys cheat themselves and the public out of the rule of law.

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