"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.

Monday, February 8, 2016

Who will monitor the monitor?

On February 5, 2016 it has been announced, with much fanfare, that two former Southern District of New York (federal) prosecutors - from Preet Bharara's office, I understand - formed their own law firm, "Pallas Global Group" to offer services of "monitoring" over corporations after court settlements and of "claims administration" to government agencies.

The name of two fortunate former federal prosecutors who saw this lucrative business opportunity and grabbed it are Tiffany Moller and Bonnie Jonas.

As of today, February 8, 2016, Bonnie Jonas is still listed as an attorney for the Department of Justice on New York attorney registration website:

Tiffany Moller, for some interesting reason, is not listed as an attorney licensed in New York, even though, according to New York Times, Tiffany Moller was reportedly "the assistant deputy commissioner and chief of compliance and oversight of the New York Police Department."

A great career, isn't it?

First, you ensure compliance with the law by New York Police.

Then, you go into the position of potentially prosecuting New York Police (or protecting them from prosecution) as a federal prosecutor.

Then, after "training" as a federal prosecutor, you use your connections as a federal prosecutor and your training - at taxpayers' expense - to corner the multimillion dollar fees where your former boss will pitch at you corporations with which the boss reached "sweet deals" with a slap on the wrist - do not be bad boys and girls, pay my former employees for "monitoring" you, and you'll be fine...

"New York Times" ran a benign article on what the monitoring is and how the law firm will operate.

The same "New York Times", different author, was not so benign 2 years ago though, when it ran another article on the same cottage industry of "monitoring" after settlement with corporations after they were caught in wrongdoing.

In that 2014 article, New York Times exposed such schemes as giving lucrative jobs to former federal prosecutors, through the use of their connections to the government, jobs which would do little in changing behavior of corporations other than line the pockets of those former prosecutors.

I, as a taxpayer, resent the fact that the former prosecutors use connections that they acquire during their employment with the government to start businesses where they get clients because of such connections.

Also, since the new firm offers services to oversee corporations (which requires neutrality) and to "administer claims" of government agency (which requires advocacy), the inherent conflicts of interests are out in the open.

Three things are clear to me:

1) that prosecutors from the SDNY Preet Bharara's office are abandoning ship, raising the issues if they are afraid of repercussions that may follow for prosecuting high-ranking officials, and would prefer a lucrative and safe job of private "monitors" to the job of federal prosecutors;

2) that members of the legal profession who have connections start to prefer captive rich clients - such as corporations who were caught in misconduct and are required to hire a "monitor" of their activities;


3) that now we need to establish yet another agency to monitor the participants in the monitoring schemes:

  • the court that agreed to a "sweet deal" requiring the monitor (former federal prosecutor) to be paid by the corporation caught in wrongdoing as a point of settlement;
  • the federal prosecutor who negotiated such a deal, bringing multimillion dollar business into the hands of their former colleagues; and
  • corporations who likely escaped with murder by having to pay a court-legitimized bribe into the "monitor".
That new agency should monitor whether the sweet deal, including the choice of the monitor, is a part of an organized criminal enterprise.

That lawyers will think nothing of engaging in such an enterprise, if it offers enough money, was recently proven by a sting on Manhattan attorneys who expressed willingness to help with international money laundering scheme.

I wonder, if those attorneys are prosecuted, and there are definitely (in my opinion as a legal expert in criminal law) grounds to prosecute them, will they also escape without any accountability if they "settle" and agree to pay some former federal prosecutors a couple of millions of dollars as a "monitoring" fee?

The fact that the "monitoring" business has been reportedly developing in the last 10 years, the same time when the market of paid legal services was shrinking, only proves that the legal profession is going through a major crisis.

That crisis, for people who are used to large and very large fees, while paying client base is shrinking, and while the legal elite is "running the country" and is never made accountable, no matter what it does, may push attorneys, prosecutors and judges - and corporations - to devise new ways to engage in criminal corrupt enterprise.

Like "monitoring" and "claims administration" - why not do that for kickbacks?  

The "monitor's fee" in itself looks like a court-ordered kickback to prosecutors already...  Especially when a federal prosecutor announces creation of such a lucrative firm while her name is still listed as one of the employee of the U.S. Justice Department.

There is a distinct potential for such criminal activities in this "monitoring" and "claims administration business", don't you think?

So, who will monitor the monitor?

No comments:

Post a Comment