"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.

Wednesday, May 18, 2016

California bar strikes against its top-ranking whistle-blower while continuing to be a dirty cartel

A couple of days ago I wrote about the decision of top state courts in Texas, Michigan and California that representation in a criminal case by a suspended attorney is not proof of ineffective assistance of counsel, thus affirming the conviction obtained where the defense attorneys were suspended in the middle of the case and continued representing clients despite the suspension, in violation of the state order of suspension and the state criminal statutes against unauthorized practice of law.

State courts in Michigan, Texas and California unanimously ruled - and that was back in 1996 - that attorney discipline does not necessarily related to an attorney's fitness to practice law, or moral character.

Which raises a question (once again) why we need attorney regulation at all, especially that such decisions come from the courts regulating the legal profession.

I would like to point out three more extremely interesting things about attorney regulation in California - which are, I am sure, characterize attorney regulation in all other states.  I know for a fact New York is quite like California, even though it does not have an organized bar, but attorney discipline is used in New York as retaliation against whistle-blowers of misconduct in the government and among well-connected attorneys instead of to discipline attorneys who do real harm to the public.

First.  California's law school graduates' most recent bar passage rate, as released on Friday the 13th this May, 2016, is 35.7% - approximately 1 in every 3 bar exam takers failed it.

Second.  On Thursday May 12, 2016, an audit was released of California State Bar finances criticizing the State Bar for:

  1. lack of transparency;
  2. inflated salaries for executives and
  3. failure to dedicate money for compensation of victims of attorney misconduct (of course, if no discipline is imposed on well-connected attorneys and attorneys working for the government, victims of their misconduct are not even counted as victims).
You can see the audit itself here, and its scathing description by other bloggers here and here.

That's is coming from the horse's mouth.  The former Executive Director of the California State Bar would know what he is talking about - he must have been doing it himself, but filed a lawsuit when the same technique was used against him.

The lawsuit in federal court in New York was dismissed, with the issues raised by it remaining unresolved.

After a high-ranking former California State Bar insider joined the allegations in Joseph Dunn's lawsuit by stating in interviews in the press that California State Bar is a "completely dysfunctional organization", that it "[i]t seems to survive somehow, but ... it gets worse with each iteration"

In March of this year, two months ago, the California State Bar issued an "Internal Report" blasting Joseph Dunn for "deception" and "influence peddling".

The report was actually called an "Independent Investigation", see it here.

The report alleged that it was Joseph Dunn who engaged in cronyism, and it was Joseph Dunn (the whistle-blower) who needs to be blamed for the lack of transparency in the organization.

Let's remember that Joseph Dunn was fired in 2014, and that for 2 years the California State Bar was without Joseph Dunn's allegedly contaminating influence.

However, while the state audit report of the California State Bar issued on May 12, 2016, two years after Joseph Dunn was fired, mentioned that the California State Bar eliminated disclosures from its annual reports as to how much money was slated for reimbursement of victims of attorney misconduct since 2012 - when Joseph Dunn was still the Executive Director of California State Bar - it also mentioned that the described situation persisted until the 2015 report, when Joseph Dunn was already fired.

Moreover, the state audit criticized the California State Bar for lack of transparency, inflated salaries of California State Bar executives and lack of provision for compensation of victims of attorney misconduct persists at present time, once again, 2 years after Joseph Dunn was fired.

So, it was not - or at least, not entirely - Joseph Dunn's fault, was it?

The audit report also pointed out what can reasonably be perceived as California State Bar putting false information into their financial reports and engaging in deceptive tactics in its evaluation of reasonableness of its executive compensation, by not including as a basis of comparison, salaries of executives of governmental officers and employees in comparable positions - while California State Bar, while being "a public corporation within the judicial branch", according to the report, carries out a governmental function of attorney regulation and licensing.

By the way, Joseph Dunn's firing, lawsuit and procedural history regarding the lawsuit are described in the audit report:

So, the lawsuit was dismissed by the arbitrator only in April 2016, right before the audit report was issued.

How coincidental.

By the way, the March 2016 "investigative report" on Joseph Dunn now belatedly claimed that Joseph Dunn allegedly lied that he won't use bar funds for his trips to Mongolia, to help the Mongolian government establish attorney regulation - but that the bar funds were, in fact used for those trips.

Without particular evidence of which funds were used and given that the "independent" investigative report was prepared during the pendence of Joseph Dunn's lawsuit, I wouldn't believe one word of that report without being given hard evidence supporting its findings.

But, the point is - the California State Bar not only fired Joseph Dunn (a former State Senator), but also has started an investigation of Joseph Dunn during the pendence of his whistle-blower lawsuit, and pretty much makes allegations of his unfitness to practice law.

That is the former State Senator.

In Pennsylvania, a former State Auditor and Congressman, Don Bailey, was disbarred for criticizing judicial misconduct, specifically, for calling judges corrupt.

Remember, that happened in the Kids-for-Cash state, where corrupt judges did sit on the bench for years doing egregious harm to the public and to children, while attorneys were afraid to blow a whistle because of prior discipline imposed for such whistle-blowing.

Moreover, Pennsylvania judges suspended its own attorney and the attorney for the disciplinary system, the elected State Attorney General, for criticizing corruption in the judiciary and among state prosecutors, the breeding pool of the judiciary.

If people with such power and such connections cannot withstand the machine of retaliation when raising issues of misconduct in the government - what chances do ordinary lawyers have?

And, how is the public protected by attorney discipline if attorney disciplinary agency eliminates criticism of misconduct even within its own ranks, at the very top?

So - at this time:

  • defense attorneys and civil rights attorneys get routinely suspended, including by California Supreme Court;
  • then, California Supreme Court, with a straight face, claims that such suspension might not be related to fitness to practice law and sustains criminal convictions where defense counsel continued to represent clients during the suspension; and 
  • attorney regulation and discipline is farmed out to super-majorities of market players and their labor organizations who (1) pay their executives inflated salaries;  (2) cook their books to prevent disclosure of financial problems and inconstistency of their operation with the declared purpose of protecting the public; (3) cleanse their ranks of those who criticize that attitude and (4) proceed with investigations against whistle-blowers.

I will not be surprised at all if former California Senator Joseph Dunn will be disbarred or suspended now that the "investigative report" against him is in and his whistle-blower lawsuit is dismissed.

But, this whole story does not give hope to an ordinary attorney or an ordinary consumer of legal services.

Other than that the only way to eliminate corruption in attorney regulation and ensure protection of consumers of legal services is to deregulate the legal profession and take power from courts to hold strings upon livelihoods of those court representatives who do their jobs honestly.

 For dishonest attorneys, as well as for anybody else dishonest - there will remain common law lawsuits for fraud and malpractice.

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