"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, October 1, 2015

What is improper in Washington is business as usual in New York - on retaliation against whistleblowers of judicial misconduct

My previous post today deals with the prominent gap in the Report of the New York State Statewide Commission on attorney discipline - the failure by the Commission to reach or make any recommendations on the public issue of utmost concern, the use of attorney disciplinary system as a tool of retaliation against attorneys for criticizing judicial misconduct.

Yet, what New York State refuses to address in 2015, was already addressed by the State of Washington 5 years ago, in 2010.

In 2010 the Washington State Supreme Court has issued a policy where it specifically prohibits retaliation against whistleblowers of judicial misconduct.

*  *  *

The Washington court order, of course, has a very limited application because it specifically addresses retaliation against employees of the State Court system.

Yet, under the law of precedent and equal protection, and pursuant to 1st Amendment, this policy can certainly be used as evidence that the State Court system of the State of Washington is at least aware that retaliation for complaints against judges exists and declared its readiness to fight it at least as against its own employees.

Once again, I do not know how well the policy is implemented, but at least it exists, which means, the court system at least acknowledged that retaliation for such whistleblowing exists, too.

In New York, the Commission's Report reflects no effort of the Commission to address the problem.

New York State court continue to endorse, through affirmation of sanctions imposed by the challenged judges upon their challengers for making motions to recuse, that New York court system refuses to acknowledge that such a situation is completely improper and shows, instead of the state attempting to remedy the situation, the state endorsing such retaliation.

The ultimate endorsement by the state of such retaliation is law license revocation of attorney critics, like it was done to George Sassower and Doris Sassower, as it is continued to be done today, when a suspended attorney was denied reinstatement because of his testimony to the Moreland Commission on corruption in the judiciary, which testimony (described by an independent source here) was used against him by the 3rd Department Committee and Court (both members of the Commission) as evidence of his alleged unfitness to practice law.

Here is how Leon Koziol describes what happened to him:

Only weeks after the Moreland Commission was disbanded, a report was issued on April 8, 2014 opposing reinstatement of Leon’s law license with a complete copy of his testimony. This report was not issued by an independent entity like Mr. Bharara’s office, it was prepared by attorneys hired and supervised by the very court being criticized and responsible for the licensing decisions. Only nine months earlier, the chief attorney and his associate engaged in the same targeting activity were fired for falsifying their time sheets, publicly financed time which was also misappropriated to violate Leon’s civil rights. No public charges were lodged against them.
The targeting of Leon’s speech and reform efforts after 23 unblemished years as a successful civil rights attorney was admitted in an unrecorded, confidential hearing held by the same licensing court in May, 2013. Clearly provocative but never alleged to be false, Leon’s Commission testimony cited extensive judicial misconduct including a Syracuse judge assigned to his custody case who was removed from the bench for sexual misconduct upon his handicapped five year old niece. He also asked for an investigation into the state’s Judicial Conduct Commission due to its political nature and failure over the years to hold judges properly accountable. Like Sheldon Silver, many were later arrested and convicted by federal authorities.

All of these three attorneys (George Sassower, Doris Sassower, Leon Koziol) were disbarred, suspended or denied suspension for providing a BENEFIT to the public, for protecting the public's right to the integrity of the court system.

The Commission refused to ask the courts to introduce such an anti-retaliation policy for whistleblowers of judicial misconduct, or to raise the issue that attorney disciplinary system is being used as a tool of retaliation.


Because, as Leon Koziol mentions, the 3rd Department court and the 3rd Department committee were ENGAGED in such retaliation.

The 3rd Department and its disciplinary committee were also MEMBERS of the Commission allegedly attempting to verify how to make these proceedings more fair.

The main point of fairness would have been to dismiss them from their job and prosecute them criminally for witness tampering and intimidation.

Their attorneys resigned for committing other misconduct, falsifying time sheets as to their use of taxpayers' money - and escaped attorney discipline from the committee employees of which they were.

See an article here describes how time sheets of public employees CAN be falsified, because the matter were never made public, even though it is a matter of public concern. 

See an article from 2014 stating the following:

"It appears that COPS [3rd Department disciplinary committee - T.N.] is in fact little more than a protective shield for attorneys, shielded from disciplinary action by their fellow attorneys in the department. Complaints filed with COPS by the public seem to be placed in a file and six months later, are summarily dismissed".

The author of the article was not invited to testify before the Commission on this issue of public concern - because the COPS were members of the Commission, an irreconcilable conflict of interest for participating in the Commission.

Not for all attorneys, of course, only for well-connected ones.

So, of course, the Commission will not try to whip its own butt by asking courts to:

  • provide for introduction of special investigators and prosecutors to prosecute disciplinary prosecutors for attorney misconduct - which is rampant and unaddressed;
  • provide for a policy to introduce the general policy that challenges to judicial integrity raised in pleadings or in public forums, may not be used as basis of retaliation, and as attorney discipline as a specific point.

After all, any such policies that a Commission members would recommend, could be turned against Commission members.

That's why reasonable citizenry does not appoint foxes to preside over the chicken coup in order to decide how to protect chickens better.

Foxes do that instead on behalf of the citizenry.

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