"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, April 5, 2017

U.S. District Court for the Southern District of New York is now making profit on sanctions imposed on lawyers?

On March 30, 2017, 76-year-old U.S. District Judge for the Southern District of New York Victor Marrero

sanctioned lawyers for the use of wrong spacing (24-point instead of double-spacing) to cram more words than was allowed by "court rules" (25 page per brief), and required them to pay a $1,048.09 fine.

Was it proper for lawyers to achieve by stealth what they could do by openly asking the court for permission to exceed the page limit?

No, it was not.

Was it warranting a monetary fine and sanction?

I don't know.

Yet, what I do know that it is wrong to set limits for arguments. 

Some lawsuits have more complex issues than others.

Lawsuits having just one claim require less pages for arguments than lawsuits having more than one claim, and the same court rules require grouping of claims together, for fear of forfeiting the claim on "claim preclusion" doctrine.

If you included all claims, you are at a disadvantage as compared to people who assert just one claim.

You are also at a disadvantage if you have more parties in your lawsuit (either plaintiffs or defendants), because that complicates the matter, and increases the number of claims.

Yet, the page limit for arguments remains the same.

I did not see analysis of those issues in 76-year-old Judge Victor Marrero's order of sanctions:

And, slapping lawyers with monetary sanctions without considering whether they were trying to obtain a fair review of all arguments for their clients, and whether the omission was inadvertent (after all, the pleading could have been done by an associate or a paralegal who did not know the spacing rules), was more characteristic of a cranky elderly and impatient judge who needs to retire and enjoy sunsets on the beach, than of a competent jurist.

Competent jurists do not mete out monetary sanctions that would require measuring the brief with a ruler.  They concentrate on issues of merit of the case in front of them.

It was silly.  And petty.

But it was not only silly, and petty - Judge Victor Marrero forgot himself to such a degree that he ordered the sanctioned lawyers to pay the fine to the clerk of his own court.

Which means - Judge Victor Marrero allowed his own court to profit from his own sanctioning decision, an unconstitutional conflict of interest recognized by the U.S. Supreme Court 90 years ago, before Judge Marrero was even born.

In recognition of this conflict, some New York courts (over the village court level) order sanctions to be paid not to the court clerk, but to a fund outside the court system, to avoid appearance of impropriety.

Apparently, appearance of impropriety was not much of a concern for Judge Victor Marrero.

So, by pointing out that lawyers for a party committed a faux pas by violating a non-sensical court rule about "one-size-fits-all" page limit for arguments on an important issue of a preliminary injunction, at the time when no discovery was made in the case and no issues aired out, the judge, in his persnickety and cranky zeal to have lawyers appearing in front of him observe formalities to the letter, chose to disregard the basic rule of due process - that judges presiding over cases must remain neutral and not create conflicts of interest.

Well, Judge Victor Marrero did, by having his court already, at the beginning of litigation, profit from the fine he imposed upon the lawyer for one of the parties - payable to the court itself.

Judge Victor Marrero should really retire.

And the case should really be transferred to another court - which, let me guess, will not happen.

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