"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.

Saturday, January 30, 2016

Jonathan Lippman's 50-hour slaves are waiting to add to the wrongful convictions crisis

Here is a scathing piece "Not walking a mile with mocassins" from "The Irreverent Lawyer" on the so-called legacy of the corrupt just-retired Chief Judge of the State of New York who - remember- values pro bono services so much that he:

1) joined the world's highest-paying law firm that parades its pro bono hours, but omits to mention in parading those pro bono hours that a lot of those pro bono hours are dedicated to paying clients, like a federal judge in front of whom the firm, no doubt, practices, who, before his ascension to the federal bench, wrote infamous "TORTURE MEMOS";


2)  conditioned attorney licensing in New York on provision 50 hours of forced pro bono services (slavery that is prohibited by the 13th Amendment of the U.S. Constitution) from the already debt-imprisoned law graduates who are not yet licensed to practice law and who will be committing unauthorized practice of law if they DO comply with the requirement, but will not be allowed to practice law if they do not first engage in the crime of unauthorized practice of law.

Walk in Lippman's stinky moccasins, as The Irreverent Lawyer cogently puts it.  Read the piece.

Here is the implications for the law graduates and the solo and small-firm attorneys of that little rule from a law professor.   

I disagree with Professor Campos (as some other commentators do, see Professor Campos' article and comments underneath it) as to the importance of legal services for low-income people whose rights are violated repeatedly in:

  •  foreclosure proceedings without a lawyer;
  • in divorce proceedings without a lawyer;
  • in eviction proceedings without a lawyer;
  • in criminal proceedings without a lawyer at crucial stages of litigation like an arraignment and interrogation

The types of lawyers in the list below who usually (personal experience, having done in my time as a lawyer numerous post-mortems of screwed cases to see whether an appeal would be successful) are lawyers who represent the overwhelming majority of criminal defendants in New York and who do not satisfy (my personal opinion) the constitutional requirement of a right to counsel - no matter what biased appellate courts say to promote its policy of "finality" of criminal convictions no matter how unfairly those were attained.


A "potted plant", even if that lawyer is retained at a high price by the defendant's family:

  • makes no motions to recuse a biased judge despite a record requiring it to prevent retaliation of that judge and secure future assignments to cases at $ 75 an hour - when a motion to recuse for bias is not made at the trial level, the issue of judicial bias is waived and will be rejected on appeal;
  • makes no motions to disqualify the prosecution and/or to dismiss the case based on prosecutorial misconduct, despite the record requiring such a motion - thus, also potentially waiving the issue of prosecutorial misconduct in how the case was brought and prosecuted, precluding raising of such issues on appeal;
  • makes no pre-trial motions to compel production of the necessary discovery information and "gives the benefit of the doubt" to the prosecution (a defense attorney giving "the benefit of the doubt" to the prosecution is something else), even knowing prior history of misconduct of that same prosecutor and his/her office;
  • makes no motions for judicial subpoenas of necessary records before trial, which will then preclude the lawyer from the opportunity to effectively impeach prosecution's witnesses at trial, and especially when the records show misconduct of the police, he prosecution, or - God forbid - some judges; a judge can easily cut the lawyer off at cross-examination of such issues if those records are not preliminarily obtained and used for impeachment;
  • subpoenas no witnesses when such witnesses exist and may help his client;
  • makes no motions to dismiss before trial when the record raises existence of issues upon which the case may be dismissed without going to trial (remember, a trial, even the one that sends a client to prison gets a better paycheck to an attorney than a motion that will get the case quickly dismissed before trial), advising their clients that it is "all right" and that the issues that need to be raised in pre-trial motions can just as well be raised in the trial - while raising such issues at the trial will possibly require the TESTIMONY of the defendant, a very dangerous endeavor, as compared just to an affidavit from the defendant in support of a motion to dismiss or for a probable cause hearing that may not be considered at a subsequent trial and is not subject to destroying cross-examination that can send the defendant to years and years in prison.

It is true, the non-potted-plant attorneys are the ones that are good for you, while the "potted plant" ones survive longer in the "honorable" profession and continue to do their shtick (see above) and screw more clients.  

An example of a "non-potted plant" attorney is here. 

The threat of sanctions for frivolous conduct for not acting as a potted plant is not applicable to criminal proceedings in New York, and the fear of sanctions is not an excuse for a criminal defense attorney.


A public defender, even an honest one, who is so overloaded that he or she has, reportedly, 7 minutes (!) per felony representation, only has time to "meet 'em and plead 'em".

That is not a constitutional effective assistance of counsel, as any reasonable person would see.

But, a criminal defendant will repeatedly be told that as long as his public defendant has a heartbeat, a license and appears for him in court, prepared or unprepared, the constitutional requirement of legal representation to him is satisfied. 

See below the description of law professor Paul Campos' reference to condescension of the idea to through inadequate representation at the "wretched refuse of our teeming shores", the poor, under the pretense of "bridging the justice gap" in New York.


Criminal defendants are repeatedly advised by courts that, even though he or she is constitutionally entitled to counsel, he is not entitled to assigned counsel of the defendant's choice.

An assigned attorney who has big financial problems, will do ANYTHING to perpetuate the stream of their assignments, no matter what harm to the clients, to the point of selling his clients to the prosecution.


New York law is the most complex and developed law in the country.  Just look at the number of books containing New York statutes and case law in a law library.

 Criminal law proceedings, as an example, are based on statutory and constitutional law, and a lot of case law.  That amount of knowledge is not acquired overnight.

Not all law school students take the grueling state CrimPro courses.  The two CrimPro courses (Criminal Procedure: 4th, 5th, 6th Amendments and Criminal Procedure: Adjudication) and one Advanced Criminal Law course I took in Albany Law School were taught by a practitioner and author of Practice Commentaries on Penal Law and Criminal Procedure on Westlaw - Professor Peter Preiser, the former (much respected by prisoners! for fairness - as I learned from prisoners' intake letters during my internship in Prisoners' Legal Services) New York Commissioner of the Department of Corrections who was assigned to the DOCs system after the Attica riot to clean up New York corrections system.

Professor Peter Preiser was notoriously tough, extremely knowledgeable and very sarcrastic.  

Students feared him, feared his scathing remarks and feared his fast-paced exams giving you short minutes to answer split-hair multiple-choice questions.  

Professor Peter Preiser's rationale for this type of exams was - if you do not know it, no time will help you answer the question, and you will not have that time in the courtroom for a split-second objection and argument.  

Professor Preiser was right.  But you wouldn't get a perfect score from his exams, and Professor Preiser got many negative student reviews that I personally saw because of his toughness.  You went to his courses not for a perfect GPA, but for real-courtroom knowledge.

CrimPro courses such as Professor Preiser's are not required law school courses and, being so tough and being often taught by tough practitioners, can result in not-so-perfect exam grades and thus ruin a law student's GPA and chances of better employment in an ever eroding job market for law school graduates.

Thus, when a "contracts" attorney or a Lippman-forced 50-hour pro bono slave undertakes legal representation in a criminal court, that may mean that the criminal defendant would be better off with no lawyer at all, or with a neighbor who knows how the criminal justice system works, rather than the "pro bono" non-specialist lawyer.

Remember, results of doctors' lack of knowledge are in the cemetery.

Results of pro bono lawyers' lack of knowledge are in prison.

I encourage my readers to read the entire piece in "The Irreverent Lawyer".  It is good.

Once again, I encourage my readers to read the entire piece by Professor Campos that the "Irreverent Lawyer" blog is referring to.  It is brilliant and raises straight-on, a lot of questions that the usual brown-nosing crowd of the retired Judge Lippman's so-called "legacy" are afraid to raise.

And, Professor Paul Campos pointed the thing that got me reeling back in law school when I was enraged at my VERY respected (by me, included) CONTRACTS professor announced to our class that he did "pro bono service" in CRIMINAL court.

Having worked by that time for many years in a criminal defense attorneys' office, having sat through numerous client conferences when my trial lawyer husband made for a potential client a post-mortem of what should have been done by his public defender or a clueless "pro bono" attorney who was clueless about criminal law, I thought it was a great disservice to the criminal defendants to have a contracts professor represent a criminal defendant (pro bono) in a case where he (admittedly) pled his client.

It is easy to plea, it is not easy to vacate a plea and the criminal record that most often such a plea creates.  It takes knowledge of the law both to plea well (like from a felony to a violation) and not to make a nerve-wrecking decision not to plea, but to aggressively attack the prosecution's position BEFORE trial, through appropriate motions and various discovery techniques.

It requires a specialist, an honest, feisty, non-potted-plant specialist, to do that.

Not a green law graduate.

Professor Campos on the required 50 hours of law practice by law graduates as a condition of receiving a law license (this is just one of the real-life points that Professor Campos is making that Lippman did not care to think through):

"Another piece of information that Chief Judge Lippman seems to be overlooking is that people who graduate from law school don't know how to practice law (this is why they can't purport to legally render legal services unless they're being supervised by an individual attorney or a legal organization).  Medical schools train future surgeons by having them work on corpses, but apparently we're supposed to "train" nascent lawyers by handing them the legal problems of living, breathing people, the idea here being the dubious proposition that law students and new graduates will do more good than harm to the wretched refuse of our teeming shores if we entrust these proto-lawyers with the legal affairs of people currently slated to inherit the Kingdom of Heaven."

Professor Campos correctly (my personal opinion) gets the feeling of superiority and condescension from Lippman's "bridging the justice gap" of poor people with green "proto-lawyers" - against their opponents, seasoned attorneys, where results of such "bridging the justice gap" is bridging it with newly wrecked lives of the "wretched refuse of our teeming shores" not entitled, in Lippman's understanding, to better representation.

Do not blame only judicial and prosecutorial corruption for the staggering numbers of wrongful convictions in this country.

The above types of defense attorneys generously contribute to filling our prisons with victims of wrongful convictions.

And the 50-hour Lippman slaves will only add to those grim numbers.



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