"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, August 24, 2016

To lawyer - we'll tie your hands, throw you into a deep pond to float or drown, and then you can defend thyself

A lawyer I greatly respect argued to me recently that the American justice system presents a "gold standard" of a judicial system - on paper.

I cannot agree even to the paper part.  

I was initially fascinated with the written law in the United States when I came here as an immigrant back in 1999 and started helping my husband in his law office.

That's before I have become involved in the real criminal defense, defense of parents in child abuse and neglect proceedings, defense of foreclosure and consumer debt cases, and prosecution of civil rights cases - as well as defense in administrative disciplinary proceedings, for clients and for myself.

While law students in the U.S. are mostly taught based on the examples of the U.S. Supreme Court precedents - and not the worst ones of those - the bulk of the American laws is contained in the lower court decisions, which are not very much reviewed or subjected to critical analysis in law schools.

Probably, the aspect of what kind of miniscule portion of cases actually makes it to the U.S. Supreme Court, and the fact that those cases that get rejected by the U.S. Supreme Court may also have had important issues that the U.S. Supreme Court refused to hear, is not emphasized in law school courses because showing law students the real side of the American justice system would be a put-off, further draining tuition dollars from law schools.

To me, as a criminal defense, family court and civil rights attorney, the litmus test of the justice system came when I could not get through to judges with elementary legal arguments, squarely based on the text of the U.S. Constitution and the decisions of the U.S. Supreme Court - the reaction of the judges was that I was wasting their time, making them read too much, and that it is better that I would resolve the case for my clients with an easy plea/settlement.

In many cases my clients caved in - and I had to follow their wishes.

In some cases, my clients did appeal with my assistance - and in many cases, surprisingly, I won those appeals, fully or at least partially.

Surprisingly even for me, I kept winning in certain cases nearly up to the point of my suspension - and, probably, that was the ultimate reason for my suspension, to simply stop me from suing the government SUCCESSFULLY in civil rights cases.  My law license was suspended on the day when a civil rights case against social services (a case that nearly 50 lawyers refused to take for fear of social services), a case that I litigated for 3.5 years was ordered to proceed to trial.

I was suspended without a required due process pre-deprivation evidentiary hearing for criticizing clear judicial misconduct that everybody else saw, that attorneys and clients whispered about around the corners of the courthouse and outside of the courthouse, but that nobody wanted to confront, out of fear for other attorneys' own livelihood.

I did not want to bow low.

I did not want to swallow abuse by an offensive and vulgar male jerk calling himself a judge who was playing into the hands of criminal prosecution (where his law partner was employed - without disclosure to criminal defendants or defense attorneys), and into the hands of social services in Family Court (the Department that that jerk represented as an attorney for 27 years before he fraudulently came to the bench claiming he won the election of 2002, while no competent proof of that exists).

I did not want to take abuse that the jerk showered upon me every day -
  • maybe, because of jealousy to the success of my husband, then a trial lawyer, and the judge's law school classmate;
  • maybe, because of personal jealousy to my husband who married an educated woman substantially younger than himself and had a new baby son with her,
  • maybe because my entry into the legal profession in a small rural area, and doubling the capacity of our office to handle cases, especially where it concerned time-consuming legal research, upset the apple-cart of the judge's buddies, attorneys who fueled his election campaign and expected results from him for their money.
The judge pursued me relentlessly.

He did not assign me to cases, even though he had to because I was one of the attorneys residing within 3-minute WALKING time from the courthouse.

Instead, he assigned attorneys from outside of the county, burdening County taxpayers with having to pay for travel expenses, often hours and hours of those expenses, at $75/hr.

I still appeared in his court, because I had enough people willing to hire me as a private attorney - because of my diligence and tenacity in researching and pursuing justice for my clients in arguments.

The judge was pissed and took opportunity at every appearance to belittle me before other attorneys.

It did not work - because other attorneys saw my actual work, including my actual work at trials, complicated trials.

I was congratulated more than once by my more experienced colleagues after a certain trial session in child abuse or neglect proceedings where usually many attorneys are present.

I was asked more than once by my more experienced colleagues for cases I cited, about the research I used to cross-examine expert witnesses.

The judge had to, in one case, grudgingly dismiss a child abuse case because I turned around social services' medical expert witness's testimony against social services - and won not only the dismissal of the child abuse case, but also a dismissal of 8 related criminal charges that could see my client convicted for a year in jail running consecutively (year after year).

The pattern continued - the judge hated me and humiliated me in court - I kept working, kept coming back to his court with private clients, which made him hate me even more, and kept earning respect of my colleagues with my work.

Finally, when I asked the New York State Commission for Judicial Conduct to take the jerk off the bench and made several motions to recuse referencing his clear misconduct and bias, the floodgates opened - the jerk slapped me with sanctions for criticism.

And the disciplinary authorities took the jerk's side.

My order of suspension cites, as an aggravated circumstance, that I did not express any remorse about my "actions".

I did not.

There is nothing to express remorse about.

I don't regret one bit of what I did for my clients. 

I regret I could not do more of the same, I regret I did not have more dismissed or otherwise won cases than I had.

I followed the law, did conscientious and painstaking factual and legal research, and made my legal arguments accordingly.

My legal arguments in motions and civil rights lawsuits are matters of public record, and anybody can see quality of my work by simply getting a copy of it.

Impartial experts who reviewed them, noted to me high quality of my research and of my pleadings.

The jerk who sanctioned me since "retired" from the bench before time, hastily, under the circumstances suggesting that he was forced to resign during a disciplinary investigation.

Yet, what I learned during my own disciplinary proceedings and during disciplinary proceedings against my husband is:

  • No law, no precedent, no obvious evidence of unconstitutionality of what the sanctioning judge was doing, what the disciplinary authorities were doing, what the disciplinary court was doing, saved my license.
  • Attorneys, colleagues, are afraid to help - they can send you flowers secretly, whispering support secretly so that no-one could hear - but otherwise they will start looking the other way (literally) when they see you in the courthouse, then on the street, then cross to the other side of the street not to say "hello" to you.

I was advised, secretly, by several attorneys to just "plead" - both for my husband, and for myself, to avoid suspension or disbarment.

Plead, do not fight, do not challenge what the "inquisition" is doing, stay under the radar, apologize to the judge even if it is him who committed misconduct and not you.

I had no right for direct appeal, other than on constitutional grounds to the New York Court of Appeals - and even that right that court managed to treat as "discretionary", as a matter of their own policy.

I had no right for even proper judicial review - because one cannot call a review by your own licensing body (even if it's called in the event of attorney licensing "a court") a judicial review.

Suspension of a medical license by a medical license-issuing authority is subject to further judicial review where the doctor with a suspended license my sue the administrative board that suspended the doctor's license.

The same refers to all other of the 130 licensed occupations and professions in the State of New York - with one significant exception, lawyers.

Lawyers, people who are supposed to protect the public from governmental overreach, have their own livelihood controlled by the same government whose misconduct they might have to challenge on behalf of clients (and that is especially true in the case of civil rights attorneys whose specialty and obligation to their clients is to vigorously pursue the government for misconduct and violations of their clients' rights).

And, increasingly in this country, lawyers have their livelihood taken away by the government for criticizing or suing the government - for which the government takes offense and retaliates.

This is not China, this is the U.S.

Does a lawyers have an effective remedy against a license suspension in the U.S.?

Not very much.

In most states, the disciplinary suspension happens at the level of the top state court, which pretends to give the attorney a "judicial review" of the suspension, but in reality the suspension is an administrative act of an administrative licensing body, and no state judicial review is provided after that, because there is no higher court to provide it, and no higher court with authority to restrict the top state court - even when it is acting as an administrative body.

Even in the State of New York, which stands apart from other states by having attorney discipline imposed not by the highest court of the state, but by intermediate appellate courts, no judicial review is available of the suspension or revocation (disbarment) of an attorney license, which is administrative in nature - because:

  1. the administrative suspension of the law license by appellate courts acting as administrative licensing boards is portrayed as a "court decisions, thus pretending that judicial review is exhausted at what in reality constitutes the administrative revocation proceeding;
  2. the attorney is cheated out of the reversed-role judicial review afforded to all other occupational licensees, in a proceeding where the attorney himself becomes a plaintiff/petitioner, and the license-revoking agency (court) becomes a respondent - no state provides such a procedure to an attorney;
  3. disciplinary proceedings are handled by super-majorities of licensed attorneys, in violation of federal antitrust laws;
  4. Appeals to the U.S. Supreme Court from the revocation decisions of state courts (that are also licensing agencies) are "discretionary", which means that review by the U.S. Supreme Court is not guaranteed.
Thus, once an attorney stripped of a license - whether through suspension or disbarment, most likely he or she will not see it again in her lifetime, and is stripped of an opportunity to HELP PEOPLE, to provide legal services which are IN HIGH DEMAND and at the time when there is a huge JUSTICE GAP, and an UNMET NEED for just such services.

Of course, the declared purpose of occupational licensing in general, and attorney licensing in particular, is to "help" the public.

Of course, stripping an attorney of an ability to help the public simply because the attorney WAS ALREADY HELPING the public too well, and because the attorney stepped on the toes of government officials in the process is in effect HURTING the public.

Yet, the attorney appears to have no legal remedy against being stripped of his or her livelihood without any due process of law or neutral judicial review whatsoever - a right afforded to everybody else, from taxi-drivers to brokers to doctors.

What can be said about the "gold standard" of justice in the country where a lawyer, trained in the law for years, and sanctioned for doing what s/he was trained to do, by those who regulate his or her livelihood, but at the same time who refuse to follow the law and must be challenged on behalf of his clients, fails to break through to a single honest judge who would see unconstitutionality and illegality of what is being done to the lawyer.

If a lawyer, trained in the law, does not have a chance in the legal system to protect his own rights, what chances have others, untrained in the law and unsophisticated in the legal system?

Has it become a rhetorical question in this country?

A country with a "gold standard" of justice?

We will see when my petition for a writ of certiorari to the U.S. Supreme Court is filed, I still have time.

Stay tuned.

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