"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, September 30, 2016

The U.S. Supreme Court accepts a case on propriety of sanctions against a party and attorneys

In a historic move, the U.S. Supreme Court accepted, first time in decades, a case raising the issue of propriety of sanctions against an attorney and a party, using the so-called "inherent powers of the court".

Here is the certiorari petition that was accepted.

The issue presented for review of the U.S. Supreme Court is, reportedly, whether sanction of attorney fees imposed upon a party (and attorneys) under inherent powers of the court, without criminal procedural protections, must be tailored to the harm directly caused by misconduct, and whether attorney fees can be awarded for actions of attorneys not directly attributable to subjective bad faith of clients.

Of course, the petition was filed by a party, not by its attorneys, and thus the focus of the petition is on the rights of the parties in view of alleged misconduct of their counsel.

Yet, since attorneys were also sanctioned in this case, and since rules distinguishing whether certain awards are compensatory or punitive/criminal, will equally apply to attorneys and parties, the case is important for both litigants and the legal community.

The mere fact that the U.S. Supreme Court took such a case, coming from the 9th Circuit (of course, sanctions were very high - $2.7 million) indicates that the Court, finally took an interest in the issue of the court sanctions.

It should be noted, too, that, before imposing sanctions, the court did hold an evidentiary hearing - which is rare.  Usually courts impose sanctions under their "inherent power" without any hearings.

And, even though in this case not criticism of a judge (which is a constitutionally protected conduct of an attorney and party), but a non-disclosure in discovery (which is attorney misconduct, if attorney knew of the discovery item subject to disclosure and did not disclose it), the issues are:

  1. the propriety of use of "inherent power of the court" to sanction,
  2. whether there must be a connection between harm caused and the amount in sanctions, and
  3. whether procedural protections similar to those in criminal proceedings must be provided -
and these issues apply to all sanctions imposed by courts against parties or attorneys.

I will need some time to read through the 9th Circuit's opinion and dissent and through the certiorari petition, and will provide more comment on them in the future.

Stay tuned.

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