"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, March 31, 2017

Impugning integrity or competence of a judge is bad or constitutionally protected? And, if attorneys waived that constitutional protection, does it mean that the declared purpose of attorney regulation (protection of consumers) is fake?

43 years ago, the U.S. Supreme Court has announced in Gertz v Robert Welch, Inc., 418 U.S. 323, 339-40 (1974) that:

"Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas."                                     

3 years after that, 40 years ago, New York recognized that criticizing the judge's competence or integrity, is still a matter of opinion, not sanctionable against non-attorney critics, "no matter how unreasonable, extreme or erroneous these opinions might be", Rinaldi v Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 366 N.E.2d 1299, 397 N.Y.S.2d 943 (1977).

In Rinaldi, New York top court (NY Court of Appeals) rejected the idea that an investigative journalist writing about judges in the criminal justice system of the State of New York could be sued for libel for saying, among other things that "the plaintiff was and is a corrupt, venal, biased, incompetent and unqualified justice of the Supreme Court of the State of New York who should be removed from office", and that "plaintiff "is very tough on long-haired attorneys and black defendants, especially on questions of bail, probation, and sentencing. But his judicial temper softens remarkably before heroin dealers and organized crime figures."

So, impugning integrity or competence of a judge in New York, calling a judge corrupt, incompetent, and who should be taken off the bench is not actionable, because it is an opinion, and an opinion, no matter how wrong, cannot be sued upon (according to the top court of the State of New York), and, there does not exist anything such as a "false opinion", according to the U.S. Supreme Court in Gertz above.

Yet, rules of professional conduct for attorneys, in New York and in all other jurisdictions, continue to contain a rule prohibiting to make "false statements" about competence or integrity of a judge.

But, competence or integrity is what is called by scientists not "falsifiable" concepts (you say "black" about a white object - sheet of paper, dog, cat, sheep, dove, you falsified FACTS, you said that the judge is not competent or not honest - there is no way to measure his competence or honesty without involving subjective opinions, and thus, the concepts of competence and integrity are not falsifiable and cannot be false).

So, statements about competence or integrity of judges cannot possibly be false - because competence and integrity are non-falsifiable concepts.

Those statements are opinions.

 And, as opinions, they are not actionable in New York.

And, as opinions, they are subject to the protection of the 1st Amendment to the U.S. Constitution, as there is no such thing as a false opinion - according to the U.S. Supreme Court in Gertz above.

So, why such an unconstitutional rule still exists and is enforced not only in New York but across the United States against attorneys?

Well, as to attorneys, there suddenly emerges the doctrine of waiver - that attorneys waive their constitutional rights, including their right to free speech about judges under the 1st Amendment, and attorneys supposedly waive those rights "in exchange for" the "benefit" of the "special status" of being "members of the bar".

Of course, waivers of constitutional rights should be voluntary, knowing and intelligent, and in writing.  Thus, the claim that attorney waive any constitutional right simply be accepting a state license to practice law, has no merit.

It has even less merit when we consider a strong of cases decided by the U.S. Supreme Court clearly saying that government may not regulate speech (a constitutional right under the 1st Amendment) by giving or withholding a state benefit (a law license):

  1. Speiser v Randall, 357 U.S. 513 (1958) - "To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech";
  2. Perry v Sindermann, 408 U.S. 593, 597 (1972) - "For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.  This would allow the government to 'produce a resuslt which it could not command directly'";
  3. Regan v Taxation with Representation of Washington, 461 U.S. 540, 545 (1983) -  government may not condition a benefit to a person on forfeiture of a constitutional right.

So, the claims that attorneys somehow "implicitly" waive their constitutional rights, especially the right to free speech - when speech is their working tool - are nonsense from all points of view.

In reality, being "members of the bar" is a euphemism of having a license to work as a lawyer from the government, which is part of the general scheme of occupational regulation by states and the federal government.

And, regulation of professions by states is done only for the declared purpose of benefits for the consumer, for protection of the consumer.

Lawyers - when cornered - ardently claim that they are not in there for the money only.

For example, in the case People ex rel Karlin v Culkin, 248 N.Y. 465, 4710-471, 162 N.E. 487, 489 (1928) the famous (or, rather in-famous) judge Cardozo, stated: "Membership in the bar is a privilege burdened with conditions. ... The appellant was received into that ancient fellowship for something more than private gain."

So, suddenly state licensing of attorneys is the equivalent of "receiving [the attorney] into an ancient fellowship" as a matter of "privilege burdened with conditions", and the privilege is so beneficial for attorneys that they are deemed to have implicitly waived their constitutional rights while entering that "ancient fellowship" (guild, right?).

Well, guilds existed NOT for the benefit of consumers.  They existed as closed societies to obtain benefits from rulers in exchange of bribes and other benefits provided directly to rulers.  And, the "ancient fellowships" of lawyers existed specifically as guilds, which, again, had no goal of benefiting the consumer, only themselves.

Of course, in a California decision, which is (like the Cardozo's decision in New York) is used as the basis of definition of the practice of law (because no clear definition exists of what it is that states license and prosecute so vigorously for practicing without a license), the judge calls treating the legal profession as a business as "sordid" - when discussing that lawyers cannot come together into corporations and work for corporations (something that, 95 years down the road, is happening without any problem):

""The relation of attorney and client is that of master and servant in a limited and dignified sense, and it involves the highest trust and confidence.

It cannot be delegated without consent and it cannot exist between an attorney employed by a corporation to practice law for it, and a client of the corporation, for he would be subject to the directions of the corporation and not to the directions of the client.

There would be neither contract nor privity between him and the client, and he would not owe even the duty of counsel to the actual litigant.

The corporation would control the litigation, the money earned would belong to the corporation and the attorney would be responsible to the corporation only.

His master would not be the client but the corporation, conducted it may be wholly by laymen, organized simply to make money and not to aid in the administration of justice which is the highest function of an attorney and counselor at law.

The corporation might not have a lawyer among its stockholders, directors or officers.

Its members might be without character, learning or standing.

There would be no remedy by attachment or disbarment to protect the public from imposition or fraud, no stimulus to good conduct from the traditions of an ancient and honorable profession, and no guide except the sordid purpose to earn money for stockholders.

The bar, which is an institution of the highest usefulness and standing, would be degraded if even its humblest member became subject to the orders of a money-making corporation engaged not in conducting litigation for itself, but in the business of conducting litigation for others. The degradation of the bar is an injury to the state."

  • ACLU and other non-profit corporations have THEIR OWN interest in litigation and THEIR OWN POLITICAL ideas and purposes (while IRS prohibits to non-profits such as ACLU, because of their tax-exempt status, to participate in political activities at all) protected by the First Amendment, in addition to their clients' goals and ideas in litigation (a statement contradicting the standing requirement under Article III of the U.S. Constitution - standing being the case or controversy of the client, not of his lawyer),  BUT
  • a "private attorney" (without making an exception when the "private attorney" works as a pro bono, government-assigned, civil rights attorney, or when that "private attorney" is raising constitutional rights on behalf of his client) works in litigation only for money (that's the "private gain only" argument what Judge Cardozo in New York and Judge Richards in California says the legal profession is NOT about)

So, membership in the legal profession is:
But, people only waive certain rights in exchange for benefits FOR THEMSELVES.

When we talk of constitutional rights, there must be tremendous benefits for an attorney attained by membership in the state bar (= receiving a state law license) in order to waive (or "implicitly waive") their 1st Amendment rights and to shut up for a lifetime.

By arguing the concept of WAIVER of constitutional rights to criticize judges - something that is allowed, and is constitutionally protected for anybody else, as cases with which this blog article started, demonstrate - as a condition to receive the privilege of "entering ... the ancient fellowship" (Cardozo), the judiciary (licensing agency for attorneys) acknowledges that it is the ATTORNEYS, and not the CONSUMERS (whose protection is claimed to be the whole reason for existence for attorney regulation in the U.S.) who receive benefits under the attorney regulation scheme.

Courts lied again?

What a surprise...

No comments:

Post a Comment