"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, January 13, 2017

The North Carolina decision exempting judges from attorney discipline: Part I - the main opinion

I have recently started a series of blogs about the decision of North Carolina Supreme Court absolving an influential freemason Judge Jerry Tillet who was involved in abuse of office while he was trying to strong-arm police and town authorities who dared to arrest his son to back off his son's case, and who then pursued those public officials in the courtroom, before and even after recusal.

In that decision, 4 days before Christmas, the North Carolina Supreme Court claimed that the only way that judges in North Carolina (including themselves, authors of the decision) can be disciplined is through judicial discipline - even if they remain licensed attorneys while on the bench, and even when being an attorney in good standing is a pre-requisite of getting on the bench and remaining on the bench.

As I promised, I will publish a detailed analysis of the decision, which consists of:

  • a main decision by judge Barbara Jackson, with a concurrence from one other judge; and
  • separate concurring opinions from five other judges of the court.
This blog is about the main decision in this plurality opinion, by Judge Barbara Jackson.

The main decision includes an interesting insight into the history of attorney regulation, regulation and impeachment of judges in North Carolina, and into the meaning of the "practice of law" in North Carolina.

While lawyers constitute a dominant force in all three branches of the government, being it central or local, state or federal, executive, legislative or judicial, the core issue of what is regulated - what constitutes the "practice of law" is not clearly defined in any of regulating jurisdictions, state or federal.

The North Carolina main decision in Judge Tillett's case makes the murky waters of attorney regulation even murkier - if that was at all possible.

First, the North Carolina State Constitution, Article IV Section 22, declares the following:

"Sec. 22.  Qualification of Justices and Judges.
Only persons duly authorized to practice law in the courts of this State shall be eligible for election or appointment as a Justice of the Supreme Court, Judge of the Court of Appeals, Judge of the Superior Court, or Judge of District Court."

And, as Judge Barbara Jackson points out in the decision, the "practice of law" in North Carolina involves being a judge:

Of course, Judge Jackson's and the statutory definition of the practice of law as being a judge, runs contrary to the claim by the judicial system itself that judges in North Carolina are prohibited to practice law,

which adds even more conceptual mess to Judge Barbara Jackson's convoluted logic in Judge Tillett's case - because the prohibited practice of law was exactly what Judge Tillett was doing when he was trying to pressure police and town officials on behalf of his son.

Thus, since only persons "duly authorized to practice law" can be judges of a certain level in North Carolina, such a constitutional provision must include a provision for removing authorization to practice law for sitting judges.

Yet, that's what North Carolina Supreme Court, themselves judges, and thus, members of class interested in the decision, blocked attorney regulatory authorities from doing in Judge Tillett's case, and, by extension and precedential power, in regards to all other judges in the State of North Carolina.

So, here are some rules about the "practice of law" and judicial practice in the State of North Carolina:

  • what constitutes "the practice of law" is not defined in North Carolina by statute, and what constitutes unauthorized practice of law, is decided on a case-by-case basis;
  • judges of a certain level are required by the North Carolina Constitution to be attorneys admitted to "practice law";
  • after the judge, admitted to practice law, comes to the bench of North Carolina, he is then prohibited to practice law;
  • when a judge may no longer practice law, the State Governor must declare a vacancy on the bench, by statute.
This conceptual mess is not of my doing - it naturally flows from the laws and judicial decisions of North Carolina Supreme Court.

And, here are some more points about procedural history of attorney and judicial regulation in North Carolina, and about Judge Barbara Jackson's dishonest and self-serving decision in Judge Jerry Tillett's case.


Judge Barbara Jackson claimed that the question before the NC Supreme Court in Judge Tillett's case is:

Yet, the question was not about Judge Tillett's misconduct "while in office".

When Judge Tillett tried to pressure the police and town officials into releasing his son arrested by the police, Judge Tillett did not act as a public official, because, as a judge, he had no say in a case where criminal charges were not yet filed with the court, and even when they would be, had no say in a case involving his own son.

So, misconduct of Judge Tillett was not "misconduct while in office", but misconduct of Jerry Tillett as a private individual who happened to be a licensed attorney, and who, as such, was clearly subject to the disciplinary jurisdiction of DHC.

By framing the question before the court the way Judge Barbara Jackson did it, Judge Jackson committed judicial misconduct of her own, since she clearly protected a judge who was also a licensed attorney, from a well deserved disbarment, for private conduct as an attorney - for which another judge, Judge Ethelridge, was disbarred, and while Judge Tillett's private misconduct was clearly within jurisdiction of DHC, as that jurisdiction was described by the same judge Jackson in the same Tillett opinion.


The opinion indicates that:

  • no judges have been removed through impeachment in North Carolina since 1868;
  • regulation of attorneys in North Carolina started in 1933, and
North Carolina State Bar being an "agency of the State", and not a trade association.  Notably, the North Carolina State Bar is not an "arm of the court", as federal courts often rule, but an Agency (meaning, administrative agency) of the State - and thus, North Carolina State Bar belongs in the Executive branch of North Carolina government.
  • in 1975 the General Assembly added a Disciplinary Hearing Commission within the North Carolina State Bar, and vested it with broad jurisdiction to exercise its powers: "any attorney admitted to practice law in this State is subject to disciplinary jurisdiction of this Council".

The establishment of the Disciplinary Hearing Commission, with the wording of the statute giving to DHC authority to discipline "any" attorney admitted to practice law in North Carolina, at a later date than the Judicial Standards Commission (JSC), clearly indicated that JSC does not have exclusive jurisdiction to deal with misconduct of judges, and that DHC can deal with regulating of judges as licensed attorneys, based on violation of rules of professional conduct of attorneys.


The two precedents that the North Carolina Supreme Court quoted in its decision: about disbarment of

  1. Judge James Ethridge, who was disbarred by DHC for his attorney misconduct committed before he came to the bench (stealing from his client's trust account); and of
  2. Judge Mark Badgett who was first removed from the bench by JSC for misconduct in office (racism), and then disbarred by DHC.
First, the NC Supreme Court claimed, while referencing these two precedents and distinguishing them on the merits, that they are not mandatory on the court, because they were decision of a lower appellate court, the Court of Appeals, and not of the NC Supreme Court.

Nevertheless, the NC Supreme Court "distinguished" these precedents, even though they are not really distinguishable.

The court said that:

  • in Etheridge, misconduct in question was committed by Judge Etheridge before becoming a judge - even though the disciplinary proceedings commenced while Judge Ehteridge was a judge, Judge Etheridge was disbarred, and then the State of North Carolina dealt with a conundrum of whether it has to pay Judge Etheridge his salary until the end of his term because he was an elected - and not impeached - public official, even though he no longer met constitutional qualifications for a judicial office;
  • in Badgett, misconduct was judicial, and committed on the bench, but Judge Budgett was removed from the bench by the JSC (during his re-election campaign, with a prohibition to ever be a judge again), and the former Judge Budgett was only then disbarred by the DHC - so DHC, according to NC Supreme Court, properly had jurisdiction over such proceedings involving a judge's misconduct while on the bench;
  • in Tillett, judge Tillett was not removed from the bench, misconduct was both non-judicial (acting as his son's representative and attempting to intimidate the police and town officials into dropping his son's case), and judicial (presiding over complaints against police chief and town officials who did not budge to those threats, then recusing from such cases, and after recusal, trying to influence judges to whom the cases were transferred).
Judge Jackson's mental gymnastics in order to absolve Judge Tillett of attorney discipline despite a clear provision in the statute enacted 3 years after the enactment about judicial disciplinary commission - and, in the same breath, to protect all judges in the State of North Carolina, including herself, from the reach of attorney discipline, while continuing to regulate the "mere mortal" attorneys who are not judges - can be presented in a table:

When did misconduct occur, was misconduct during court proceedings

Before becoming a judge
When a judge
When disciplinary proceedings started
Disciplinary result

X, no

While still on the bench
DHC has jurisdiction, Disbarred


X, yes
After resignation
DHC has jurisdiction, Disbarred


X, no
While still on the bench
DHC has no jurisdiction

The table shows that there is no logic whatsoever in Judge Jackson's decision about Judge Tillett:

  • Judge Badgett was subject to DHC jurisdiction for his misconduct as a judge committed during court proceedings - which, by Judge Jackson's logic, should be exclusively in the hands of JSC.

Judge Tillett's misconduct, on the contrary, was not a misconduct during court proceedings, it was private conduct before those proceedings against his son commenced, and after his recusal from proceedings against public officials who did not budge to his intimidation.

In both of these instances, Judge Tillett did not act as a judge, but as a private individual, and was clearly subject to jurisdiction of DHC.

Moreover, as Judge Jackson must know as a seasoned attorney and judge, the timing of prosecution is not what is relevant to determine rights of parties - the time of the offense is relevant, and Judge Badgett's misconduct was committed while he was still a judge.

Because of Judge Jackson's convoluted logic, the following rule can be discerned from these three cases, and appears to be now the law in the blessed state of North Carolina:

  • DHC does have jurisdiction over potential disbarment of Judge Jerry Tillett - but only when Judge Tillett gets off the bench, then, just like in Judge Badgett's case, DHC can disbar him, right on retirement or resignation.
Until then, even though Judge Tillett is a licensed attorney, and being a licensed attorney is the required constitutional qualification for a judge, DHC is prohibited to REVOKE Judge Tillett's LAW LICENSE - because Judge Tillett is a judge.

And, this convoluted logic also explains why, despite the fact that JSC was created because of claims that judges in North Carolina are not disciplined enough (no judges impeached since 1868), the JSC statute is now used by JSC and by the NC Supreme Court, in a self-serving manner, to protect judges committing misconduct, as private individuals, OFF the bench, from disbarment while they are not disciplined by JSC ("public reprimands" do not count as effective discipline -  see the story of Michigan Judge Lisa Gorcyca who received a standing ovation from the local bar after she was publicly reprimanded for egregious conduct, but was allowed to remain on the bench).

But, if the NC Supreme Court allows DHC jurisdiction and discipline after judges leave the bench, for judicial conduct that has led to discipline - and Judge Tillett, just as Judge Badgett before him, was disciplined (public reprimand), just not as severely as Judge Badgett - DHC must be now eagerly waiting the end of term of Judge Jerry Tillett, which ends - ta-da! - in 2018.

Of course, Judge Tillett, to escape disbarment, may run for re-election - but, voters should be forewarned by that time that it is not "public service" that Judge Tillett is seeking by a potential re-election in 2018, but self-protection from disbarment.

And, of cousre, I will eagerly follow, and report, on whether the North Carolina Disciplinary Hearing Council will pursue the discipline of Judge Tillett when he gets off the bench - and into the DHC's open arms.

Stay tuned.


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