"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, February 22, 2017

An Arkansas lawyer was disciplined in South Carolina for hiring private investigators who did their jobs well, for conduct allowed in Georgia, Arkansas and by the American Bar Association

It is a well known fact that the police is allowed to lie to the subject of its investigation in order to obtain information.

And, the police is often working under the guidance of an attorney - the state or county prosecutor guiding the investigation.

I have never read about a prosecutor disciplined in any state for directing the police to lie to a suspect in order to elicit information.

In fact, in the police training lying to the suspect, or "duplicity and pretense" are paraded as legitimate interrogation and investigation techniques.

Yet, in a case with apparent equal protection problems, a private attorney was just disciplined by the State of South Carolina for doing exactly the same.

An Arkansas attorney Cecil Duff Nolan, Jr. allegedly hired and sent into South Carolina private investigators who lied to suspects in order to collect information.

Here is what the attorney was disciplined for:

Ok, where do I begin.

First, South Carolina, as far as I know, does not have a criminal statute prohibiting surreptitious telephone recording when one party to the recorded telephone conversation gives consent to the recording.

And, without such a statute, there is no right to regard such recording as a crime.

Moreover, South Carolina courts, also as far as I know, adhere to federal rules regarding surreptitious telephone recording, which is a one-person consent statute - so, if the investigators gave themselves consent to record a conversation they participated in, their conduct was lawful.

As to impersonating somebody else - here, posing as a customer or potential customer - and "prodding", or, rather, asking about products, how else does the court think an investigation can be conducted, just walk through the front door, introduce yourself as a private investigator, "honestly" (or, rather, stupidly) say what you are investigating and why, and expect to receive honest answers to your questions?

By this disciplining decision South Carolina in effect prohibited its attorneys to hire investigators at all - because what private investigators did in this case is their usual investigation techniques and practices.

Nor are any "third party rights" violated.

The investigators were actually investigating potential infringement of somebody's intellectual rights.  There is no "third party right" to be free from an investigation into your own misconduct - because this is what South Carolina disciplinary decision implies.

So, on the one hand, "...over the last 35 years courts have upheld countless confessions even though the investigator lied to the suspect during an interview or interrogation. In most of these cases the investigator made false statements about being in possession of evidence that implicated the suspect in the crime e.g., eye-witness, fingerprint, DNA, etc."

And that is in criminal cases, where consequences of such lying by investigators are dire.

Yet, investigators lying to the suspect in the exact same manner, or worse, as an attorney's private investigators in a civil case were - impersonating somebody else, asking some questions as if they were customers and not investigators - somehow results in discipline.

Now what?

South Carolina attorneys will not be hiring investigators for fear of discipline?

Or, private investigators will suddenly turn stupid and start presenting themselves to people under their investigation as private investigators?

For example, this private investigator who was sharing online some of his tricks and success stories:

I doubt that the private investigator or his staff member just marched to the ex-wife and asked her - what is your extra source of income that you do not want to reveal to your husband with whom you are involved in a child support battle?  Because, otherwise, that private eye would not have gotten the information he actually did get.

Since it was for a court case, I wonder if the attorney or party who hired him was sanctioned by the court for not being honest with the ex-spouse who was concealing her income from the court and the ex-husband - or, in other words, involved in misconduct, as the disciplined attorney suspected the defendant company was, in infringing his client's intellectual property rights.

All that the disciplining South Carolina court achieved is that people will first hire investigators and, only after investigators conclude their investigation, will hire an attorney, or will engage in any other tricks to simply separate and shield the attorney from the knowledge that an investigator was hired by the party, and that will be the end of it.

The court pretended it legitimately imposed discipline, the attorney accepted a light discipline in order to keep his license no matter whether discipline was fair or legitimate or not, and the bar at large will continue to do the exact same thing, making more precautions against getting caught.

There is one word to describe this disciplinary decision.


My next question would be - who was the defendant in that intellectual property infringement case, and what kind of connections did the defendant have, what kind of strings were pulled to use taxpayer money to commence a disciplinary prosecution on such a stupid subject in the first place, and to bring it to imposition of attorney discipline, second?

The disciplinary case indicates that the court case that has led to discipline was initially commenced in a federal court in Georgia in 2009.

The only case filed in 2009 that, the official registry of federal court cases, has with attorney Cecil Duff Nolan, Jr. as attorney of record, is this case, for alleged unauthorized use of PVP protected oat seeds.

Here is the full complaint filed in that case:

The only problem that I see with South Carolina case is that the disciplinary case states that the federal case was removed from a federal court in Georgia to South Carolina.

Yet, the docket of the case shows that the case was not removed, but was dismissed with prejudice on stipulation of parties.

To me, this disciplinary case appears to be quite mysterious.

There is, once again, only one case filed in federal court in Georgia in 2009 with Cecil Duff Nolan, Jr. as an attorney of record.  It is, indeed, an intellectual property infringement case where the complaint mentions that the defendants were located in the State of Georgia, but some of them could be located "in other states".

Was it the correct case, was attorney Cecil Duff Nolan Jr. an attorney of record in that federal case, or only in the "removed" case in South Carolina, I do not know.

If he was, the case was not removed.

If he wasn't attorney of record in federal court before the mysterious removal, and only represented the plaintiff in a state court proceeding, it may be a different case.  South Carolina disciplinary opinion does not identify the case, or the name of the client and the client's opponent in that litigation, which extremely confuses the issue - because, once again, the disciplinary decision is so nonsensical that the only plausible explanation for it that it was made for the so-called "extrajudicial reasons" - not for the reasons stated in the decision, but because of some political connections.

In other words, that the disciplinary case was fixed.  To me, that a disciplinary case against an attorney, and especially an out-of-state attorney, was fixed, is not at all a surprise.

Yet, the mystery is - why? Who pulled the strings and for what reason?  And what power that "somebody" has over the South Carolina Supreme Court and its disciplinary counsel?

I will appreciate tips from readers as to whether the case I found on is the correct case for which attorney Nolan was punished or not.  As I said, the case I provided here is the only one filed in a federal court in the State of Georgia in 2009 with attorney Nolan as the attorney of record.

And, my question remains - was attorney Cecil Duff Nolan, Jr. disciplined because he was a very good out-of-state trial attorney

who obtained really damaging evidence with the help of private investigators against somebody who had influence upon South Carolina Supreme Court?

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