I repeatedly write about cases when such independence is infringed upon and especially in cases where attorneys are disciplined for criticism of their own regulator (in the U.S.) - courts and judges.
I will repost the names of attorneys I know from my own research and from research of law professor Margaret Tarkington here.
Prof. Tarkington in her law review article on attorney speech lists 48 cases from 28 states where attorneys were sanctioned for criticism of judges, from 1877 to 2007.
|Kansas||1877||In re Pryor, 18 Kan. 72|
|California||1911||In re Shay, 160 Cal. 399|
|New Jersey||1930||In re Glauberman, 107 N. J. Eq. 384, 152, Atl. 650|
|California||1934||In re Friday, 138 Cal. App. 660, 32 P.2d 1117|
|Wyoming||1945||State Board of Law Exam'rs v. Spriggs, 155 P.2d 285|
|Iowa||1964||In re Glenn, 256 Iowa 1233|
|New Mexico||1966||In re Meeker, 76 N.M. 354, 414 P.2d 862|
|Nevada||1971||In re Raggio, 87 Nev. 369|
|Florida||1973||In re Shimeck, 284 So. 2d 686, 690|
|Iowa||1976||In re Frerichs, 238 N.W.2d 764, 769-70|
|South Dakota||1979||In re Lacey, 283 N.W.2d 250|
|California||1980||Ramirez v. State Bar of Cal., 28 Cal.3d 402|
|Iowa||1980||Comm. On Prof'l Ethics and Conduct of the Iowa State Bar Ass'n v. Horak, 292 N.W.2d 129|
|Kentucky||1980||Ky. Bar Ass'n v. Heleringer, 602 S.W.2d 165, 168|
|Kentucky (another)||1980||Kentucky Bar Ass'n v. Nall, 599 S.W.2d 899|
|Louisiana||1983||La. State Bar Ass'n v. Karst, 428 So.2d 406|
|Tennessee||1983||Farmer v. Board of Prof'l Responsibility of the Sup. Ct. of Tenn., 660 S.W.2d 490|
|Maryland?||1986||In re Evans, 801 F.2d 703 (4th Cir. 1986) (disbarred from USDC for district of Maryland), footnote 15|
|Tennessee||1989||Ramsey v. Board of Professional Responsibility of the Supreme Court of Tennessee, 771 S.W.2d 116|
|Minnesota||1990||In re Graham, 453 N.W.2d 313|
|Missouri||1991||In re Westfall, 808 S.W.2d 829, 833-34|
|New York||1991||In re Holtzman, 78 N.Y.2d 184|
|West Virginia||1991||Committee on Legal Ethics of the W. Va. State Bar v. Farber, 408 S.E.2d 274|
|California||1993||Peters v. State Bar of Cal., 219 Cal. 218|
|Indiana||1993||In re Becker, 620 N.E.2d 691|
|Washington?||1993||S. Dist. Ct. for E.D. of Wash. V. Sandlin, 12 F.3d 861 (9th Cir. 1993)|
|Indiana||1994||In re Antanga, 636 N.E.2d 1253|
|Indiana (another)||1994||In re Garringer, 626 N.E.2d 809|
|California?||1995||Standing Committee on Discipline for the U.S.Dist. Ct. for the Cent. Dist. Cal. V. Yagman, 55 F.3d 1430, 1437 (9th Cir. 1995)|
|Idaho||1996||Idaho State Bar v. Topp, 129 Idaho 414|
|Iowa||1996||Iowa Sup. Ct. Board of Prof'l Ethics and Conduct v. Ronwin, 557 N.W.2d 515|
|Kentucky||1996||Ky. Bar Ass'n v. Waller, 929 S.W.2d 181|
|Indiana||1999||In re Reed, 716 N.E.2d 426|
|Delaware||2000||In re Guy, 756 A.2d 875|
|Florida||2001||Fla. Bar v. Ray, 797 So.2d 556|
|Indiana||2001||In re McCellan, 754 N.E.2d 500 ("McClellan" in fn 39)|
|Indiana||2002||In re Wilkins, 777 N.E.2d 714|
|Kansas||2002||In re Arnold, 274 Kan. 761|
|Ohio||2003||Office of Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 793 N.E.2d 425|
|Louisiana||2005||In re Simon, 913 So.2d 816|
|Massachussetts||2005||In re Cobb, 445 Mass. 452|
|Michigan||2006||Grievance Administrator v. Fieger, 719 N.W.2d 123|
|Minnesota||2006||In re Charges of Unprofessional Conduct involving File No. 17139, 720 N.W.2d 807|
|Arkansas||2007||Stilley v. Sup. Ct. Comm. On Prof'l Conduct, 370 Ark. 294|
|Delaware||2007||In re Abbott, 925 A.2d 482|
|Kansas||2007||In re Pyle, 283 Kan. 807, 156 P.3d 1231|
|Utah||2007||Peters v. Pine Meadows Ranch Home, 151 P.3d 962|
|Utah (another)||2007||Utah v. Santana-Ruiz, 167 p.3d 1038, 1044|
Additionally, through my own research I found 33 cases from 14 states:
John E. Wofgram
Attorney challenging the concept of judicial immunity as unconstitutional and who sided with the "Jail for Judges" movement seeking state constitutional amendments to abolish judicial immunity - by legal process
Dr. Richard Fine
Disbarred, incarcerated and held in solitary confinement for exposure of judicial corruption
Disbarred for exposing judicial corruption, held in contempt, bankrupted
Suspended after she filed an appeal of a dismissal of lawsuit on behalf of clients challenging impropriety of cross-endorsing judges by multiple parties in judicial elections
Suspended for reporting judicial corruption
Disbarred after she ran for the seat of the State Governor on a platform of judicial reform and cleaning up judicial corruption
disbarred for calling a judge a "domestic terrorist"
Suspended for “making false allegations against judges”
John A. Aretakis
The attorney who exposed child molestation by Catholic priests, was suspended for making motions to recuse and defaming the Catholic priests
Criticized a judge for misconduct in assigning cases only to attorneys who will not do discovery, motions and trials for their clients
Suspended for calling a criminal court judge who gave only a week to prepare for a criminal trial after indictment, an "evil, unfair witch"
Criticized and continues to criticize judicial misconduct in publications and a radio show, ran for the U.S. Congress on the platform of judicial reform, is being repeatedly denied reinstatement on those grounds
Lanre Amu, a Nigerian lawyer
Made a complaint against a Circuit Judge
Frederick J Neroni
Disbarred after his law partner and wife criticized a judge for apparent bribery, the judge's former law parnter, a local criminal prosecutor, threatened Mr. Neroni to withdraw a criminal appeal raising the same issues, not to "burn the bridges", Mr. Neroni was disbarred after he refused to do that
suspended in 2013 "for making threatening and disparaging statements to a judge", and then disbarred
repeatedly denied reinstatement for testimony against judicial corruption before the Moreland Commission, publications and rallies criticizing judicial misconduct in Family Courts
Criticized federal judges in pleadings
Suspended for criticizing judicial corruption in probate courts
suspended for an e-mail criticizing a judge, ordered to pay giant disciplinary cost of proceedings
Suspended for impugning integrity of judges and disciplinary prosecutors
Michele MacDonald Shimota
Was arrested in the courthouse by order of a judge she sought to recuse and sued, sexually abused in the holding cell, forced into a wheelchair, stripped of glasses, shoes, files, wheeled into the courtroom and forced to represent a client this way
Disbarred for criticism of judicial corruption in Ohio courts
Suspended for 3 months for criticizing judges
Suspension time increased from what was recommended after attorney moved to disqualify the judge-referee
JoAnne Marie Denison
Suspended for 3 years for exposure of corruption in probate courts through blogs
Disbarred after running for a judicial seat, then criticizing a judge in motions to recuse
Suspended for criticizing a judge for apparent misconduct and corruption in motions to recuse
revealed judicial and prosecutorial misconduct in e-mails, was suspended by the judge she outed, the judge resigned after suspending her
Kevin A. McKenna
Suspended for 1 year for criticism of judges
An attorney who exposed misconduct of Judge Sharon Keller who refused the last-minute death appeal by a statement "we close at 5" - was held in contempt and blocked from appearing in death penalty cases
Charged with a felony for seeking public records of a court operating account to expose judicial misconduct
Suspended for well-founded criticism of a judge, based on documentary evidence and testimony of witnesses that indicated that the judge altered or caused to alter court audio files of a judicial proceedings protecting herself from allegations that she did not disclose the judge's irreconcilable conflict of interest
attorney who exposed sexual misconduct of federal judge Walter Smith and insisted on reopening of his case and speeding investigation once the case was reopened
After all, the 1st Amendment prohibits infringement upon speech, and the prohibition is absolute.
But, even under the U.S. Supreme Court's jurisprudence, content-based regulation of speech must be subject to the highest levels of scrutiny, the strict scrutiny - and that applies to even the type of speech that the U.S. Supreme Court gives the lowest type of protection, commercial speech.
The U.S. Supreme Court routinely refuses to hear such cases, thus allowing states courts and lower federal courts to keep a fear grip on the bar and undermine independence of court representation.
It is not reasonable to expect an average attorney to accept that risk of losing his attorney status, especially in the country where a motion to recuse a judge may land you without a law license, as it regularly happens in the U.S. (in the case of John Aretakis in New York, Christine Mire in Louisiana and many others) and blacklisted not only from working in a law office, even as a driver or a plumber, but also from all other regulated professions - which take in the U.S., by conservative assessments, from 25% to 30% of the market.
And, since the U.S. did not fully ratify the International Covenant for Civil and Political Rights, there is no possibility for disciplined American attorneys to obtain or even seek an out-of-the-country review of such decisions, stripping them of their livelihood for doing their job as attorneys and citizens - as attorneys from other countries, including Belarus and Russia, may do.
- no meaningful court review,
- no right to a jury trial,
- no right to appeal,
- a review of attorney disciplinary cases by competitors and not by consumers of the attorney and without any decisionmaking authority by consumers of attorney's services, and with
- the statistics of the overwhelming majority of disciplinary cases against attorneys disciplined for criticism of the judiciary decided against attorneys, attorneys are forced to operate in a self-preservation mode.
Attorneys are not only deadly afraid to report judicial misconduct - ask a law professor what to do if a judge in front of you is committing misconduct, and he will tell you (as professors told many of my readers who asked that question) that to report judicial misconduct or challenge it in any way would be a "professional suicide" - they are proud of their "record" of never reporting judicial misconduct.
Given that the attorney practiced for a lifetime, and, naturally, must have seen a lot of judicial misconduct, especially after 1978, when American judges granted themselves immunity from malicious and corrupt acts, and judicial misconduct was thus encouraged, that proud statement did not sound that good.
Rather, it was a sign of operating, for a lifetime, in a forced self-preservation, survival mode, the so-called "defensive lawyering" - as compared to "defensive doctoring", doing certain procedures not to help the patient (client), but to, at the same time, charge money and protect yourself from punishment. That's not a good thing - not in doctoring, not in lawyering.
And, that is definitely not a good sign for consumers of legal services in need of a rigorous defenders of their constitutional right to impartial judicial review, and their constitutional right to a vigorous court defense in cases fought in court against the government, a powerful opponent with unlimited financial resources.
Because the right to not just any judicial review, but to an impartial judicial review is a constitutional right - and when your lawyer is afraid to make a motion to recuse a biased or corrupt judge for fear of losing his income forever, your right to an impartial judicial review is shot. It is simply non-existent.
And quashing this constitutional right wouldn't have been possible without attorney monopoly, where court representation is restricted only to people who are approved - or disapproved - by the same judiciary that they are supposed to challenge in objections, motions to recuse and appeals.
Actually, Russia appears to be borrowing this American rake to step upon it - and, as it will be shown below, with the help of the American Bar Association whose members priced themselves out of the shrinking U.S. market of legal services and are now preparing expansion into the Russian market, clinching it for themselves by pushing through the American model of attorney monopoly.
A good illustration of how that attorney monopoly will hurt consumers of legal services in both criminal and civil proceedings, and out of court, too, is the case of Russian attorney from the city of Ufa in the Republic of Bashkortostan.
Yet, it appears that Russian judges and prosecutors are made from the same ... materials as judges in the U.S. and no petty revenge is beneath them.
Even more so that Vitaliy Burkin not only had their vehicles towed for illegal parking, that was the last drop. He also criticized - and asked the federal Attorney General of Russia to criminally prosecute - high-ranking judges of the Republic of Bashkortostan who illegally transferred some real estate to themselves.
Even though in America, inmates are also denied medical care, but, due to severe procedural restrictions (15 days to file a grievance in the same jail where you are kept and face the risk of retaliation for that, in order to preserve your right to sue for human rights violations) created by the Prison Litigation Reform Act and federal law allowing federal judges to toss prisoner lawsuits as "frivolous" before they are even served, on subjective grounds, such cases, unless some powerful organization turns its eye at them, do not even get reported, much less get reviewed by any international human rights organizations.
And, even though in America,
- people are persecuted, and viciously, for critical publications against the government, as it happened last year to journalist Mark Thomason of Georgia (see also my blogs this month about #JudgeBrendaWeaver),
- persecuted for filming police misconduct, as it happened to Maurice "Mo" Crawley and Adam Rupeka in New York, legislator John Walker in Arkansas and the legislator's lawyer Omavi Kushukuru;
- criminal cases are fabricated against them, as it happened to #MarkThomason, his attorney Russell Stookey in Georgia, Maurice "Mo" Crawley and blogger #AdamRupeka in New York last year, and
- when people are, to all appearances (because no meaningful investigations are happening in such cases, so what remains are only appearances) assassinated, as it very likely happened to
- Sunny Shue in New York after repeatedly reporting on judicial misconduct and starting investigations of a New York judge's property holdings,
- as it happened in New York last year to vigorous critic of police misconduct Adam Rupeka, and
- as it happened recently to attorney #PatrickMissud in California who actively criticized judges, up to the Chief Judge of the U.S. Supreme Court John Roberts, and was mysteriously found dead in jail when detained before trial where he was supposed to testify in a case of "criminal threats against a judge"
- victims of such persecution and their families lack the right of out-of-the-country review, and in-the-country review of such things usually leads to dismissals, if not with sanctions, because nothing that the government (and especially the judiciary) does in the U.S. may be deemed bad.
Russian government at the very least allowed Russian citizens to sue itself in an outside forum, the European Court of Human Rights.
Nevertheless, victories in free speech lawsuits against Russia at the beginning of this month did not prevent, and, very possibly, accelerated what happened to attorney Vitaliy Burkin, as a method of intimidation of all other potential critics of the government in Russia.
In two and a half weeks, Vitaliy Burkin, the "troublemaker", was stripped of his "advocate status" and removed from criminal cases.
"Coincidentally", at the time of persecution of Vitaliy Burkin, lawyer lobby was actively trying to push through the Russian Legislature (the Duma) various types of attorney monopoly - similar to what already exists in Russia, and, similarly to the U.S., without any sunrise review and without any verification with consumers of legal services whose rights such attorney monopoly is claimed to protect, whether consumers want attorneys to guard the chicken coop.
It is interesting to see the supposedly unrelated interaction of Vitaliy Burkin's case with what is happening in the Duma.
As soon as Vitaliy Burkin was told that he was stripped of attorney status - without actually giving him, according to Vitaliy Burkin, the written decision with reasoning about such an extraordinary punishment - Vitaliy Burkin made a public statement in an interview with journalist Stas Michailov.
In that interview, attorney Burkin, in answer to the journalist's question whether he is going to undertake steps to restore his "advocate status", answered that the "advocate status" does not make much difference in his work since he can still work as a lawyer without being a court criminal defense attorney.
In Russia, attorney monopoly at this time concerns only representation in criminal court, specifically appearances in court, and not consulting, giving legal advice, preparing documents, and representing people in arbitration and civil court proceedings.
But, attorney Burkin may be out of luck in his hopes that he was stripped only of the status of criminal defense court attorney.
According to reports of Russian business newspaper "Kommersant", a new bill in the works - to spread attorney monopoly exactly the same way as it exists in the U.S., to cover all those things that were not (yet) stripped from attorney Burkin.
If that is passed, competitors and the government will have an opportunity to remove independent Russian attorneys not only from criminal cases, but also from arbitration, civil and, especially, from civil rights cases - and prohibit attorneys to so much as peep a legal opinion or give legal advice to people, or draft any documents.
And, the interesting thing is that such a bill appeared after you know who vigorously toiled to teach Russian attorney bureaucracy and judiciary about "the rule of law"?
The American Bar Association that has a death grip upon attorney monopoly in the United States, notwithstanding the "justice gap" that such an attorney monopoly produces for people.
The ABA, through its "Rule of Law" project and its exceptionally interesting director, Gleb Glinka, husband of the recently (allegedly) deceased Dr. Lisa, who has his own very interesting ties in top tiers of both the U.S. and the Russian government, brought American own corrupt judges to lecture to the Russian judges how to rule the legal profession better, engage in corruption and escape accountability for that, brought Russian judges back to America for tours (I translated in one of them, where judges came from the Astrakhan region).
In view of the ABA turning a deaf ear and a blind eye to the fate of attorneys who suffered for criticism of the country in the ABA's own country, and in other countries - which is reflected in the ABA's policy of membership to accept only attorneys "in good standing" with their own governments, even if those governments are oppressive dictatorships, and in view of the recent testimony in the U.S. Congress about the ABA's reneging a book offer to a Chinese civil rights attorney, obviously in an effort not to ruffle the feathers of Chinese government and not to jeopardize business prospects of its members in China - the recently concluded "Rule of Law" project of the ABA in Russia was not any kind of charity to sermonize to the supposedly uneducated Russian lawyers and judges what the rule of law is - but a purely business venture.
The ABA was pushing through the American model of attorney regulation in Russia notwithstanding the fact that attorney monopoly enriching politically connected attorneys in the United States, makes the majority of Americans go to court without an attorney or forego their legal rights completely, since, with the minimal pay across the United States under $15 an hour, they are unable to afford a licensed attorney whose hourly rate starts at $200, and, according to comments, is on average now $400 an hour.
At the same time, due to criminal laws pushed through by attorney lobbies in the US, which prohibit "unauthorized practice of law", without clearly defining what the "practice of law" actually is, with severe penalties such as up to 5 years in prison, a criminal felony conviction and stripping of rights of employment and voting rights on conviction, people who cannot afford to pay $400 an hour to a lawyer (actually, much more upfront since most of attorneys require several thousand dollars down as a retainer to start representation in a court case), are forced to proceed without an attorney entirely.
Thus, attorney regulation as it exists in the US, protects only the rich, who can afford an attorney and who does not need such "protection", and as a result of such "protection" people who do need court representation go without any such representation whatsoever, because their choice of their own court representatives is taken away by the government and by the legal profession.
Hiring a court representative of their own choice from anything but a government-approved lists of licensed attorneys is a crime in the United States, for both the consumer (as a solicitation), and the contractor - which is especially stupid when the very government who restricts consumer choice of court representatives, is the opponent of that same consumer in litigation, in:
- family court social services cases against parents,
- tax foreclosures,
- property forfeiture cases,
- disciplinary proceedings against licensed professionals,
- criminal proceedings, and in
- civil rights cases where the government is being sued by people for violation of their civil rights.
Apparently, that's the rake towards which the ABA, through its now embedded lobby in Russia, is pushing Russia.
And, attorney Burkin's case - and his instant removal, by a group of competitors, from criminal cases where his clients chosen him to represent them for his competence, skills, courage and independence, without his client's knowledge, notice or consent - is, unfortunately, but likely, only the beginning of the backlash against independent court representatives in Russia.
Apparently, corruption and greed are the best products that the American legal profession can export to Russia.
Nothing like plunging people into the dark ages, all the way asserting lofty causes.
I would very much prefer that Russian consumers of court representation - same as American consumers - wake up finally and make their opinion on the subject of attorney monopoly, and the resulting justice gap, known.
Until then, third parties with special interests will be deciding who and how will represent them in court, where their life (in the U.S.), liberty, property, custody of children (both in the U.S. and in Russia) are concerned.
And attorneys of their choice will continue to be removed from their cases by decisions of those third parties with special interests - like it happened in American cases listed above, like it happened in Russian in the case of attorney Vitaliy Burkin.
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