"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.

Friday, March 11, 2016

Not making a motion to recuse as a badge of honor

I have been researching the issue of motions to recuse in this country for a long time.

I have been reading motions to recuse of different attorneys from various states, and I have been reading materials from disciplinary proceedings against attorneys who made such motions - where such materials are available.

Time after time, I get across the same or nearly the same phrase in those motions:

"in my long career spanning XYZ years this is my very first motion to recuse". 

This phrase is presented to the court as - what?

An apology?

A humble proof of due diligence?

A proof of being "a good girl/boy"?

An announcement that the attorney believes that all judges are good and this is an exception?

First of all, when a judge is caught in committing misconduct, telling that judge that all other judges are good (no motions to recuse were made by the attorney in XYZ years, and such motions are extremely rare), but this particular judge is then what - bad, because for him the attorney makes an exception and makes the motion to recuse?

Why an apology?

Why such a long string of explanations?

Why the tail-between-legs position from the outset?

A client the attorney is being paid to represent has a constitutional right to impartial judicial review.  Period.  It is the attorney's duty to enforce that right for her client.

Unapologetically so.

Apologies are not due to judges who commit misconduct.

Apologies are not due to judges who appear to be partial, or who fail to disclose conflicts of interest.

But, the tail-between-legs position while even making the motion to dismiss shows how far we went in making attorney regulation a tool of suppression of human rights litigation when attorneys, addressing issues of judicial misconduct, must humbly scrape and bow and say - in 20 odd years of my career, this is my very first motion to recuse, Your Honor, and I profusely apologize for even making it.

I will not believe for a second that an attorney who lived his life in courts for those years fails to see rampant judicial misconduct that goes on in American courts every single day. 

Attorneys are not stupid, they know what is going on.

For that reason, I have been advocating for a very long time for introduction of peremptory challenges against judges, as well as for rotation of judges, shortening their terms so that they do not become entrenched, making judicial duty same as jury duty - on a rotational per diem basis for all citizens, and canceling regulation of the legal profession and especially taking it out of the hands of the judiciary, so that the lawyer would not look over her shoulder whether or not to make a motion to recuse, and whether or not to fear for her livelihood if she does it.

But, "excuse me, your Honor, you must be a spectacular scoundrel since I have to make a motion to recuse you while I never made such motions against other judges in my whole XYZ years of legal career" - by way of an apology - does not sound right.

No matter how you look at it.

And especially when you look at it from the point of view of short-changed clients on whose behalf such motions had to be made, but were not, because the cases were not "sufficiently egregious" for an attorney to risk his/her law license.

A motion to recuse is a motion is a motion.

You do not wear a badge of honor for never making a motion to dismiss.

Not making a single motion to recuse, as a matter of self-preservation and survival as an attorney, in the context of rampant judicial misconduct in American courts, for the "whole long legal career" is no badge of honor either.

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