"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, September 16, 2017

To give a free attorney with one hand, and to take him away with the other - now in death penatly cases, too

I wrote on this blog that caps on attorney fees for assigned appellate attorneys for the poor, practiced by New York appellate courts, is unconstitutional.

Often, at the $75 an hour rate and the $4400 cap, and a case with an extensive records - pretrial motions, transcripts of pretrial hearings, transcripts of the trial - an attorney exhausts the allowed limit of compensation after $58.66 hours of work, which is just 8 full working days for an attorney, while work on an appeal can take MONTHS, see, voucher forms from the New York State Appellate Division 3rd Judicial Department for compensation of assigned attorneys in criminal defense and Family Court cases.

Here is a voucher form for criminal cases:

The voucher form has a "note" that "The limit of compensation without showing an extraordinary circumstances is $4,400.  Claims for payment above the statutory cap must be accompanied by an affidavit in support of the excess fee claim".  I supplied once such an affidavit, showing an extraordinarily long record I was supposed to read, and, since the record was so large, an extraordinary fee I paid out of my own pocket for the required number of copies to reproduce it - the court only compensated 1/5 of what I paid out of pocket.  So, next time an attorney who would be so burned, would not opt for a "full record" option, but would go with an "Appendix" option which allows the court to skip its review by reviewing only a certain pages from the record, but not the entire record.

Judges of this court are not dummies, and they do realize when creating such a cap that any criminal case that made it to the appellate level will have a record that requires more than 8 days of work for an attorney to create a proper appeal, so with this voucher form and policy this court incentivizes (1) dishonesty in attorneys - since an attorney must claim he or she has read the full record to base the appeal on it, which is, if not paid, most often assigned attorneys simply do not do, and (2) poor work on behalf of the poor.

It goes without saying that this amount does not even come close to compensating an attorney's time for WestLaw research, which can cost up to $3400 an hour (!), and I do not mean that the attorney will charge that fee, but it will be an out-of-pocket expense of the attorney to pay in order to do proper research for a client in an assigned case, with a hope of compensation from the court in the future, when the appeal goes through and is decided, which will usually take months.

Not only the court system forces attorneys to finance the court system by not paying attorneys interest on fees generated, but not paid for for months, but attorneys are supposed to pay out of pocket, and provide diligent representation, where such diligent representation REQUIRES costly research - which the attorney knows will never be compensated.

So, assigned appellate attorneys are vigorously encouraged in New York to provide substandard representation for the poor, where, in a private appeal, an attorney will have full and often advance compensation from a client (through a retainer and advances as the work proceeds) for all necessary expenses AND attorney's own work.

Discriminatory compensation rules are no different in assigned cases in Family Court than in criminal court.

Here is a voucher form for civil cases:

The same "note" at the bottom.

As I said above, an attorney may exhaust the compensation cap by just be reading the record, noting the issues and before he even begins researching them, or through just a couple of hours of research, which is inadequate for a serious criminal or Family Court appeal, almost always fraught with multiple complex constitutional issues. 

As a result, there arises a huge conflict of interest for attorneys - to do their job properly, and then lose time (and opportunity to earn money in other cases, while having their own bills to pay and their own families to support) and do unpaid work for their clients, because the case requires more than the cap pays for - or to pretend you did your job, knowing that it is unlikely the higher appellate court will reverse on ineffective assistance of counsel issue if an appellate attorney will put in just some appellate brief, whether properly articulating all necessary issues the record raises or not.

Apparently, this problem has been brewing not only in New York State.

Recently, an appellate attorney in Utah asked to allow him to withdraw from a DEATH PENALTY case, because the appellate court capped compensation in that death penalty case.

In other words, like in New York, much of the work required by the death penalty case in question would have been unpaid work, and the attorney could not afford it, since he had to support his own family, naturally.

Of course, the press disrespectfully claimed "lamenting" the legitimate claim of the attorney that a huge conflict of interest arises when an attorney must pick whether he can properly represent his client, but then go unpaid - in a case where he is supposed to be FULLY paid by the government for his work as a constitutionally required counsel for his condemned client.

We are not talking about a greedy attorney not wanting to do his job.

We are talking about, potentially, hours, days, weeks, possibly, months of unpaid work.

Nobody should be required to do that.

13th Amendment prohibits slavery in this country, and that equally applies to attorneys.

And, if counsel is constitutionally required in certain cases, they must be FULLY paid for their jobs.

Anything else, any situation where a financial incentive is created for an attorney for the poor to do less to avoid being forced to work for free, is unconstitutional deprivation of counsel of the poor.

Which is happening all over the country for decades as we speak, and I do not see any demonstrations in the streets about it.

Of course, demonstrating to fell a statute that was not a bother for over a hundred years is more fun and will gain more political capital than protecting constitutional rights of the poor. 

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