"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.

Sunday, February 28, 2016

When an attorney is criticizing judicial misconduct, truth is falsity and disruption of the tribunal

Yesterday, I ran the first blog covering the case of Louisiana female attorney Christine M. Mire who was suspended this month for a year and a day, with a 2-year probation and a directive to pay all costs of extensive disciplinary proceedings - for legitimate criticism of judicial misconduct and corruption, based on documentary evidence.

I continue coverage of Christine Mire's litmus-test case showing how the government uses attorney discipline as a tool that is contrary to the purpose of attorney regulation, protection of consumers.  Here, a skillful and fearless advocate was stripped of her ability to practice and earn a living as a result of her skillful, fearless and legitimate advocacy on behalf of her clients, and in retaliation of exposure of judicial corruption.

The more I read the materials of Christine Mire's disciplinary case available online, the more I feel that the State of Louisiana (same as  what other states disciplining attorneys for criticism of judges are doing) created some kind of distorted reality in order to arrive to their conclusions against Ms. Mire and in order to sanction her.

The rules Ms. Mire was sanctioned for violating were for "disrupting the tribunal", "delaying litigation" and "making statements about competence or integrity of a judicial officer which are false or with reckless disregard to truth or falsity" of those statements.

Yet, as I will show through posted scans from materials of Ms. Mire's disciplinary case in the blogs to come, Ms. Mire was punished for (1) making motions to recuse and for (2) not backing down after motions to recuse were rejected by a biased court, for filing a writ that challenged integrity of that court that would disregard obvious evidence of judicial misconduct and personal FINANCIAL of the judge interest in litigation.

Earlier in this blog, I wrote a lot about the concept that lawyers who even dare to touch upon the subject, call "intellectual dishonesty" of judges (see articles here, here, here /specifically about the problem for non-reporting judicial misconduct, as well as intellectual dishonest of judges/, and in some more blogs, you can just type "intellectual dishonesty", "judicial immunity" and "judicial misconduct" in the search window of this blog on the right).

This type of dishonesty occurs when judges ignore relevant portions of the record or relevant mandatory law in order to arrive to a conclusion that would benefit some high-ranking member of the government (especially, a judge) or some well-connected party or attorney.

In Ms. Mire's case, the orwellian disciplinary proceedings established that there was circumstantial evidence indicating that Judge Phyllis Keaty may have been involved in fabrication of court transcripts and in redaction and amplifying of court audio-files, and that Judge Keaty had a financial interest in litigation through having an interest in a real estate firm that was selling the property that Judge Keaty was about to split in litigation, as a factfinder.

Yet, attorney Mire's motions to recuse Judge Keaty were called a disruption of the tribunal, unnecessary, unfounded and meant to delay litigation, and the statements of Ms Mire in those motions to recuse, and in her writ, were branded as either false (despite unrefuted evidence to the contrary in the record), or made with "reckless disregard of truth or falsity".

In this regard, before I start publishing the actual scans from Ms. Mire's proceedings, I wanted to make some references that reading of Ms. Mire's disciplinary case sparked.

There is a form of mental abuse called gaslighting, named after a 1944 Oscar-awarded movie describing this type of abuse, "Gaslight", where the reality of a witness of some event compromising the abuser is being intentionally distorted.  Gaslighting, as a technique, was often used by the Soviets against political dissenters.  Both the dissenters or critics of the government were portrayed as nuts, and the reality of what they were asserting was distorted by the government.

Here, when the government was saying - 

  • yes, Judge Keaty did have an ownership interest in the Keaty Realty, the real estate firm that handled the sale of the property Judge Keaty, as a fact-finder, was splitting in the family court litigation; 
  • yes, there is evidence that court tapes were redacted and unknown pieces of those audio files were taken out;
  • yes, Judge Keaty did testify under oath in her testimony AGAINST attorney Mires (not in Judge Keaty's own disciplinary or criminal prosecution - which was never brought against her, despite overwhelming evidence of misconduct) that the redacting portions of the audio file was necessary to take out coverage of other court proceedings that happened that same day;
  • yes, it was established that no other court proceedings were happening that same day, so Judge Keaty lied as to the reason for redacting the tapes, but acknowledged the fact of redacting the tapes, so nobody knows what exactly was taken out of those tapes at Judge Keaty's direction;
  • yes, it was established that Judge Keaty's alleged disclosure as to her interests, that Attorney Mire said was never made by Judge Keaty, was miraculously added to the court audio-files, professionally, by means of third-party equipment and software not in court possession.

Yes, yes, yes, yes and yes.

All of that evidence is enough to convict Judge Keaty of state and federal crimes, take her off the bench and disbar (none of which happened)

But, that same established evidence was not enough to protect an attorney from being stripped of her due process right to earn a living, simply because she was doing her job for her clients and was trying to inform voters in an upcoming election campaign of Judge Keaty for a higher court that Judge Keaty is unfit for office.

I would say that Louisiana court and disciplinary council engaged in elaborate gaslighting of Christine Mire, same as Soviets did to political dissenters, same as the Eastern Germany's (a split-off part of Germany dominated by Soviets that is no more in existence)  "Stasi" internal spying agency did to critics of governmental misconduct.

I would like to stress to my readers that all this "Stasi"-like forms of mental torture, punishing an attorney for telling the truth, for thorough investigation, for producing evidence of judicial corruption, for making it public - instead of making Christine Mire Citizen of the Year of the State of Louisiana - was done at public expense and for the declared purpose of protection of the public.

Protection from what?

In 2014, Indiana attorney Paul Ogden has made a comprehensive analysis of Rule 8.2 which he called "the disciplinary rule of choice for sanctioning attorneys who criticize judges".

Paul Ogden mentioned in his article that when applying the Rule 8.2(a):

(a)    A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

courts across the United States reject the reach of the 1st Amendment and applicable U.S. Supreme Court cases interpreting it.

I would add, as a result of my own experience and research, that courts consistently disregard jurisprudence on content-based regulation of speech, including the applicable standards.

In one of his other articles, Paul Ogden raised an issue whether attorney disciplinary rules, specifically, a rule to be honest with the disciplinary court, are obligatory for disciplinary counsel, too, raising the issue of selective non-enforcement of disciplinary rules against disciplinary prosecutors perpetrating fraud upon the disciplinary court by using false evidence.

The principle of fraud upon the court does not go away even if the court (as it usually is in cases of persecution of an attorney for criticism of judicial misconduct) welcomes such fraud with open arms.

In yet another article, Paul Ogden points out that in 98% of cases, disciplinary courts find against attorneys on violations of Rule 8.2(a) (false criticism of judges or criticisms with reckless disregard to the truth or falsity of attorneys' statements).

All of the above is clearly applicable to how Louisiana attorney Christine M. Mire was disciplined and suspended for "a year and a day" this month.

By the way, the due process threshold for making a motion to recuse (to ensure constitutional right of a litigant, attorney's client, to have not only justice, but also appearance of justice), is appearance of impropriety.

An appearance of impropriety is a matter of PERCEPTION.

So, attorneys who are punished for making motions to recuse are punished for their PERCEPTION.

They may not even PERCEIVE that something is fishy - even when looking at the evidence that PROVES that something is fishy.

To require an intellectual, a professional, to say that the King has clothes on when the King is naked in a very ugly way is to require attorneys to do a lobotomy on themselves.

Which is what attorneys regularly do, to survive.

For example, in his law review article "Culture of Quiescence" (which I was sanctioned by Judge Becker for quoting and then my license was suspended based on sanctions of Judge Becker for quoting constitutional law and that law review article) Professor Carl T. Bogus states the following:  

Professor Bogus assumes, as many other legal writers, that judges come to the bench predominantly based on lofty and noble motives.

Yet, the reality of such motivation is likely very, as it was recently reflected in a book written by a former judge who disclosed that the motive to assume a judgeship was very simple - to aid his clients and his law firm a confession he made only after he has left the practice of law and shortly before his death.

The ongoing saga of #AntoninScalia, and the havoc his death caused not only politically, but in cases of corporations who cannot now get what they were awaiting from the judge, possibly after some hunting trips or more, as well as more and more evidence of conflicts of interests he ignored and the power he had, stifling the critics, indicates how important, in fact, it is to criticize judicial misconduct at the time it is happening, and not only when the judge is safely dead.

Professor Bogus makes important observations about the impact of impunity of judges and about the unrelenting survival technique of lawyers - unfounded flattery, or "sycophanting",  upon judges.

Once again, Professor Bogus tries to play safe even in his very bold article for the industry of legal writing, and assumes without a reasonable evidence (my personal opinion), that judges come to the bench initially with "dedication and humility" - a proposition not supported by evidence, and I refuse to make favorable assumptions for any member of the government, especially the judiciary, based on available evidence refuting reasonableness of this assumption.

Christine Mire was guilty of failing to swallow up the knowledge of judicial corruption, sell out her clients, shut up and suck up to the judiciary.  Instead of "bowing and scraping" and saying "yes, your Honor, that is what you said, your Honor", she investigated and found that "that was not what her Dishonor said", and that, in fact, #HerDishonorJudgePhyllisKeaty has cooked court transcripts to cover up her personal financial involvement in the case.

THOSE were her "disciplinary violations" that her clients whose rights she was fought to protect, were protected from through suspension of her law license.

I did not see protests in the streets against depriving consumers of legal services of a powerful and skillful advocate, Christine Mire, not because she made false statements about a judge, but because her statements were TRUE, BASED ON DOCUMENTARY EVIDENCE, and PRETTY DAMNING, and were made during the judge's election campaign.

Christine Mire was, very simply, made an example of.  If you want to keep earning a living, just shut up - that's what the sanctions the 2-year probation requirement - says.

And until the public starts to vigorously protest against being deprived of skillful advocates under the guise of contrived attorney discipline, judicial misconduct will remain unpunished and adamant everyday occurrence in American courtrooms.


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