"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.

Saturday, July 15, 2017

Lawyers under siege trying to represent a client. A growing problem in America

Ok, so a lawyer has a client.

That is called a "fiduciary relationship", a relationship of trust.

And, the lawyer has a client for 15 years.

Meaning that the relationship of trust is long-standing, and the lawyer is the client's choice of legal representation of many years.

And then somebody comes out of the woodwork and sends, from an anonymous e-mail account, an email to the attorney demanding that the attorney should drop his client of 15 years, or there will be "consequences" to the lawyer, and/or the lawyer's law firm.

What has just happened?

That is qualified under the law as:

1) an attempt at tortious interference with a business relationship - for the lawyer;
2) an unlawful bullying over the internet.

So, what would a lawyer do with such an email?

Of course, the wisest decision when receiving such an e-mail is to put it into the spam folder and to report spam.

But, consider the following factors:

1) the e-mail was received at the end of a very long working day, and for a litigation attorney a very long working day means a very high level of stress;

2) even a litigation attorney has a right to his own private time, and those who are sending e-mails to him at night, while not even knowing the attorney personally, must observe the minimum civility as to timing of their messages;

3) the person who contacted the attorney was not his client, nor was he representative of a court notifying of changes in a schedule of a court case, it was a completely personal e-mail, unrelated to litigation, and was completely inappropriate - demanding the attorney to abandon a long-time client, and threatening consequences to him and his law firm if he doesn't.

So, what did the attorney do with the letter from an anonymous bully?

He responded.  In several reply messages.  With profanity.  Promising to verify the bully's identity.

Did the attorney have a right to verify identity of a person who threatened consequences to himself and his law firm if the attorney does not drop a long-time client?

Absolutely he did have such a right.

Did he have a right to be upset because of such pressure?

Absolutely he had a right to be upset.

Is the use of profanity illegal in this country in private settings?  Not at all.  It may be "distasteful", but it is not at all illegal.

Is the use of profanity prohibited to attorneys in private settings?  Not at all.  The bully was not the attorney's client, and was not a court official sending the attorney an e-mail on official court business.

So, did anything at all happen which is newsworthy?

In my view, not at all.

A bully tried to apply unlawful pressure upon an attorney to have the attorney drop a longtime client, threatening consequences to the attorney and his law firm.

The attorney told the bully (1) to mind his own business, and (2) that the attorney will verify the identity of the bully and, possibly, will go after him - I am sure, in a legal way, and not with his fists.

What about the attorney's use of profanity in his response e-mails?

Well, while the use of profanities is "distasteful", judges in the State of New York (where the attorney in question is licensed), who are all licensed attorneys, use profanities all the time and escape with no discipline at all, and that profanity happens during court proceedings, not in their private life.

And, judges in New York are regulators of the legal profession, those who set standards for lawyers to behave.

So, with those standards, and those circumstances, what made this piece of no-news a hotly discussed subject?

The identity of the attorney - the attorney for President Trump, #MarcKasowitz.

Marc Kasowitz is not a spring chicken.  Judging by his official registration information, he was admitted to practice law in New York in 1978, usually it takes 18 years to graduate high school, then 4 years of college and 3 years of law school, so Marc Kasowitz is at least 64 years of age at this time.

And, Mark Kasowitz confirms in his official biography on the website of his law firm that he has been representing President Trump for 15 years.

And, Marc Kasowitz was already subject to disciplinary complaints specifically BECAUSE of the identity of his client.

Now, if the President of the United States would be Hillary Clinton, nobody will give a damn what advice her lawyer gave to the staff of the White House - if that even happened.

Not with Donald Trump.

With Donald Trump, everybody is more interested to know the color of his care and the nature of his compliment to the wife of the President of France than what President Trump is actually doing in office.

And the same way with his attorney.

President Trump simply cannot be entitled to such a good litigator as Marc Kasowitz who successfully represented President Trump for 15 years, that simply should not be happening.

So, first, some pressure was put on Marc Kasowitz and his law firm - a successful law firm with many attorneys and rich and powerful clients, mind - to drop President Trump as a client.

And, Marc Kasowitz made some powerful enemies - among them, Preet Bharara, where some media source went so far as reporting that Marc Kasowitz actually was behind firing of Preet Bharara from his position of the U.S. Attorney General for the Southern District of New York.

And here is the original (as ProPublica published, with redactions) of the e-mail sent to attorney Marc Kasowitz:

So, while attorney Kasowitz is suddenly hit left and right by disciplinary complaints simply for representing his client (while nobody touched him with complaints while he represented Donald Trump before his presidency), while he is already under pressure to drop his client, he receives this masterpiece.

Somebody not courageous enough to make his (reportedly, the bully is a man) name, "believes", while pretending that he does not know Marc Kasowitz and Marc Kasowitz does not know the bully, that it is in Marc Kasowitz's interest and in the long-term interest of his firm for Marc Kasowitz "to resign from [his] position advising the President re. pending federal legal matters", and that "[n]o good can come from this".

How can a reasonable person NOT perceive this letter as a direct threat and pressure put on the attorney for the President of the United States that if he sticks to his PROFESSIONAL DUTY to his client, both the attorney and his law firm will suffer "long-time consequences".

What kind of long-time consequences can a 64-year-old attorney suffer professionally?


That was the threat, sent after a long working day, by an anonymous bully.

You can read the further reported exchange between Marc Kasowitz and the bully here.

Of course, the bully had the audacity to get "offended" with profanity and forward Marc Kasowitz's emails to the FBI.

I believe, the President of the United States have every right in the world to actually task the FBI with investigating the author of the e-mail as to who is behind him in applying pressure on the counsel to the President to deprive the President of competent legal representation by a lawyer who the President has been represented by for 15 years.

Because, this case is political.

Instead, ProPublica turned it into a cheap hysterical row on social media.

There are a lot of comments following the slanted publication about the "incident", accusing Marc Kasowitz only of impropriety and demanding his head on a silver platter - disbarment.

The message is very clear: if he does not want to abandon his client "voluntarily", he will have to do it if he is disbarred.

Disbarred over what?

Over using profanity in a private email against an anonymous author of an unsolicited politically motivated Internet threat against the lawyer and his law firm?

The coward who has sent the e-mail message to the President's attorney still remains unidentified - as he asked ProPublica to do.

Yet, without knowing the identity of the coward, the public will not know how real was the threat of "consequences" to Marc Kasowitz and his law firm to assess whether his impassioned response at the end of a long working day was reasonable.

Of course, Marc Kasowitz, knowing what the disciplinary Nazi in New York can do to him, apologized to the bully to diffuse the situation.

There were enough people asking for his disbarment without even knowing the identity of the cowardly bully, and without knowing how many more threats like that were aimed at Marc Kasowitz and his law firm before this one.

Marc Kasowitz's spokesman was, no doubt, very restrained when he stated this in response to the "situation with the e-mails":

So, Kasowitz has been a "rainmaker" for the law firm - before one of his long-time clients became the President of the United States and continued to retain Kasowitz.

Then, those who do not like the CLIENT, turned on the attorney and his law firm and put the law firm under siege.


The new rule of the "honorable" legal profession is - represent somebody we don't like - get disbarred, no matter how, but you are on the radar, and we will get you no matter what.

That is not how independent counsel can operate.

But, while the public is foaming at the mouth as to how inappropriate PRIVATE conduct of the President's attorney in response to bullying and political pressure allegedly was, I have a question to this same public, and commentator seeking Marc Kasowitz's head: what about you?

What about your own personal legal representation if a disaster strikes you or your loved ones?

What if you, or your loved one in need of representation, for some reason yet unknown, will suddenly become a "persona non grata" to some powerful political figure, or lobbying group?

If the President of the United States has no chance for independent legal representation, if his counsel is under pressure to "choose" whether to abandon the client, or to lose his license and livelihood while committing neither an act of incompetence, or an act of dishonesty to his client or the courts - which is the ONLY thing that matters from the point of view of attorney licensing (that exists ONLY to protect interests of consumers of legal services) - and if a powerful attorney finds it easier to apologize for being a victim of bullying rather than lose his head and livelihood - WHAT CHANCES DO YOU HAVE, what chances does a mere mortal has for independent legal representation?

Read Marc Kasowitz's lips while apologizing to the anonymous bully.


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