A warning to civil rights attorneys - the U.S. District Court for the Northern District of New York is about to create a precedent destroying the incentive of taking on civil rights cases for indigent plaintiffs in reliance on the promise of 42 U.S.C. 1988(b)

In a case where I was - allegedly - suspended on the eve of trial, after litigating the case for 3.5 years, a new attorney for my former clients recently claimed that:

only the former clients have a right to apply for the fees of the former attorney that were promised BY those people TO the former attorney as a lure to get her into the case where she subsequently worked for 3.5 years based on that lure - and when the attorney was lured into the case at the time when all other attorneys were afraid to touch the case (against social services).

My former clients, through their new attorney Woodruff Carroll, allegedly (Carroll was caught many times lying as to what his clients did or did not authorize him to do) claimed the following:

1) a former attorney does not have STANDING to apply for her own legal fees at he successful end of litigation;

2) their position is based on the 2nd Circuit's decision claiming that 42 U.S.C. 1988(b) is conditioned by the "contractual relationship" between Plaintiffs and their attorney, not based on the "quantum meriut" recovery regardless of any contracts - as the statute actually says;

3) a retainer agreement is required as a pre-condition of granting legal fees under 42 U.S.C. 1988(b);

4) not more than $3,000 may be awarded in the absence of a retainer agreement under 42 U.S.C. 1988(b);

5) Plaintiffs already entered into a settlement with Defendants where they WAIVED MY legal fees IN EXCHANGE for money - in other words, they sold MY rights to legal fees from Defendants in exchange for money being TO THEM, while they never had a right to MY legal fees, because it was MY work that they were selling without my consent (at least, attorney Carroll claims they sold my rights behind my back for money, and I am seeking access to the now-sealed transcript to verify if that is so);

6) Plaintiffs have a financial interest to prevent vacatur of my disciplinary suspension that had nothing to do with the Plaintiffs' case. 

The issue as to whether an (allegedly) suspended attorney (there is no public order of my suspension in federal court) is, of course, a separate issue from the general issue whether the FORMER attorney, whether suspended or not, has his/her own standing to apply for his/her own legal fees under 42 U.S.C. 1988(b), a statute created to provide a financial incentive to ATTORNEYS, not to clients, to advance valuable legal services to indigent civil rights plaintiffs.

So, we have two big issues here which are very important to the vitality of civil rights litigation and feasibility for ANY civil rights attorney to even consider taking on a civil rights case on the basis of the promise that, if the attorney's work is successful, the attorney's fee will be paid by the defendants (the government) under 42 U.S.C. 1988(b).

I would split those considerations into two large issues - the more specific and the more general.

The more specific issue is:

• Whether an attorney who is conveniently suspended after bringing a civil rights case to trial, or after providing any amount of legal services in a civil rights case (and the suspension had nothing to do with that case), and who was lured into the litigation by the promise of legal fees under 42 U.S.C. 1988(b), has his/her own right to any legal fee for services provided BEFORE the attorney was suspended;

The more general issue is:

• Whether a FORMER attorney for civil rights plaintiffs, not suspended from the practice of law, who was induced into the civil rights litigation by the promise of legal fees to be obtained from the moneyed Defendants at the end of a promising civil rights case under 42 U.S.C. 1988(b), has his own right to apply for legal fees if the attorney was discharged before the end of litigation, but the litigation concluded successfully for his former clients.

Here is my Memorandum of Law in support of my own standing, as a former attorney in a civil rights case where my former clients admittedly prevailed, and whose fee was earned and vested before I was (allegedly) suspended in federal court, without a public order of suspension.


The summary of my points is:

1) The legislative intent of 42 U.S.C. 1988(b) was to provide the incentive to attorneys to advance their own legal services to indigent civil rights plaintiffs, so if the financial incentive was meant for attorneys, attorneys have their own separate standing to recover the fees from the defendants pursuant to that statute;

2) Clients have an absolute right to discharge an attorney, for cause or for no cause, at any time during litigation.  If clients have an absolute right to discharge an attorney for no cause, and they do exercise such a right, making the attorney a former attorney, there is an inherent conflict of interest involved, and vesting the exclusive standing to obtain the former attorney's fee into the now-former clients is a violation of the former attorney's due process of law.  Moreover, the legislative promise of 42 U.S.C. 1988(b) of a legal fee for the civil rights attorney at the successful end of litigation becomes illusory if the statute would give only to clients the power to apply - or not to apply - for legal fees of their counsel who they could strategically discharge in order to strip him of his already-earned legal fees.  To so undermine the promise of the 42 U.S.C. 1988(b) to civil rights attorneys will chill civil rights litigation, because no reasonable civil rights attorney would want to take on a case knowing that he can be, at any time, discharged without cause, or suspended from the practice of law, and then lose his right to legal fees for services already provided;

3) It is not the attorneys who have no standing to apply for their own legal fees, but the clients who have no standing to apply for the former attorney's legal fees, because those legal fees never belonged to the clients, and the clients were never authorized by the attorney to apply for such fees. 

4) Clients have no standing to waive somebody else's, the former attorney's, right to legal fees.  The case the Plaintiffs were citing as to the waiver of legal fees as a condition of a settlement in a civil rights case was fact-specific and involved the present attorney of record who waived HIS OWN legal fee as a condition of the settlement, not the former attorney whose earned legal fee was waived, over his objection, in his absence and without his permission, by Plaintiffs and the attorney's successor, the new attorney for the Plaintiffs;

5) the right of the former attorney to a legal fee under 42 U.S.C. 1988(b) is not conditioned upon a retainer agreement or its contents;

6) the amount of entitlement by the former attorney to a legal fee under 42 U.S.C. 1988(b) is not conditioned upon a retainer agreement, or upon whether the attorney did or did not present it to the court, the retainer agreement should only be provided when the court demands it, since there is nothing about retainer agreements in the statute;

7) the former clients, the Plaintiffs, have no standing TO OBJECT against the former attorney's recovery of legal fees, because the motion for fees is seeking fees not from the Plaintiffs, but from the Defendants;

8) the former clients have no right or standing to waive, and even more, to sell the already vested right of the former attorney for services already provided before discharge, in exchange for a money offered in a settlement,  without notice or consent, and with knowledge of an objection, by the former attorney.  The case quoted by the clients in support of their claim they may waive an attorney's legal fee, refers to the personal waiver of the legal fee by the current attorney of record.  The case that Plaintiffs quoted supports actually MY position, that it is for the attorney, and not for the clients, to waive his own legal fees, and the fee of the former attorney can only be waived by that former attorney, and not by the now-former clients or their new attorney.

I must add that neither Plaintiffs, nor Defendants opposed any item of my legal fees or the reasonableness of my hourly rates that I submitted to the court, so the motion must be granted by default - not that I expect it to be granted, because of the court's extreme bias against me that I described recently here and here (the magistrate in these two cases is the same, and all judges in these two cases are defendants in my earlier-brought lawsuit Neroni v Peebles, dismissed sua sponte before answers were filed by the judge who was a witness in that case, that I am about to renew based on new evidence - and turn into criminal authorities to investigate).

While my motion appears to be a private fight for my own legal fee for my own work in a civil rights case against social services, the decision that the court will render will be important to the fate of civil rights litigation in the U.S. as a whole.

The decision will have precedential value and, if decided against me (which is what I reasonably predict since that particular court disregards any laws, equity, records or any reasonable arguments as far as I am concerned), can pull the statutory incentives from ALL civil rights attorneys to take on cases of indigent civil rights plaintiffs - because the statutory incentives provided by 42 U.S.C. 1988(b) are rendered illusory by the ability of clients to discharge attorneys at any stage of litigation and then not apply for their legal fees or sell their right to legal fees under 42 U.S.C. 1988(b) as part of settlements, as it was done in my case.

I will report what the court will decide on this matter.

Stay tuned.

Documents showing that, in NDNY court, I am not entitled to be served with motions concerning me, be present at oral arguments of those motions, or have access to transcripts of those oral arguments - why? Ask attorney Woodruff Carroll. Because I am (allegedly) a "crackpot" who "sued everybody who is anybody".

Here is the docket report of the case Argro v Osborne that I litigated for 3.5 years as the Plaintiffs' attorney - after which I was suspended in state court system on the day the case was ordered to proceed to trial, was ALLEGEDLY suspended in federal court (no public order of suspension and no public disciplinary file exists), and stripped of my legal fees for 3.5 years of litigation - while my clients received money based on my work.

Of course, I applied for legal fees.

Of course, I applied for disqualification of the court and sanctions against attorneys who were engaged in repeated ex parte communications behind my back.

Here is the entire docket report of that case that I obtained today from Pacer.gov.

Here is my Affirmation listing 28 (!) ex parte communications with the court regarding my rights to fees or regarding motions that either I filed, or was filed against me, the listing of ex parte communications starts at page 19.

Here is the Affidavit and Memorandum of Law of attorney Woodruff Carroll confirming that David Peebles (the purported magistrate whose judgeship was not confirmed after his term expired in May of 2016) discussed AND DECIDED my motion to recuse pending at that time.

Carroll acknowledges that he received my motion to recuse, vacate a premature ex parte order based on ex parte pleadings, and for sanctions against him:

That motion was returnable on June 17, 2016 before District Judge Mordue,




and review of that motion by Peebles was denied by an ex parte text order of Mordue:



Yet, Carroll claimed under oath in his Affidavit that not only Peebles did review that motion, but that he has actually decided it - before its returnable date, without notice to me, behind my back, in a secret proceeding the transcript of which he later sealed:

So, Carroll confirmed, under oath, that Peebles reviewed and decided my still pending motion that was specifically not referred to him, behind my back, and that he reviewed and decided a motion for an antifiling injunction - which Donnelly claimed on August 11, 2016 (see below) is still pending.

Peebles conducted that ex parte court hearing of June 3, 2016 after expiration of his term in Mid-May of 2016, acting as a private individual and not covered by judicial immunity of any kind.  He was at that point a usurper of public office.

The only proof that Peebles was a legitimate magistrate at the time of the ex parte hearing of June 3, 2016 was Carroll's own words only:

Carroll, of course, knows, that the only proof of a judge's appointment is the public order of his appointment - which Carroll could not produce (and if he could, it would be based on a corrupt and invalidly appointed panel of brown-nosing attorneys appearing in front of Peebles), same as the only proof of an attorney's suspension in federal court is the public order of her suspension - which Carroll also could not produce, because neither of these documents exist, at least, none were published by the time of Peebles' presiding over the ex parte June 3, 2016 hearing.

Please, also note that attorney Woodruff Carroll's admits he never read my arguments in my civil rights lawsuits that attorney Carroll calls, multiple times, "crackpot", as well as my legal arguments - which attorney Carroll did not oppose on the merits.

That the motion for the anti-filing injunction against me that Carroll claimed Peebles reviewed and decided on June 3, 2016, was ex parte, and was not served upon me is beyond doubt - based on documentary evidence in the docket that I am publishing here below. 

Here is the docket entry of the ex parte motion by Defendants against me personally for an anti-filing injunction, showing that the motion, even though there was no valid affidavit of service filed with it, was referred to David Peebles.

Here is the certificate of service of that motion showing that the motion was not served upon me, but was instead served by attorney Erin Donnelly upon herself:

Here is, an order granting to Defendants their request to seal - from me - exhibits in an ex parte motion they are filing against me:

Here are filings of attorney Carroll claiming that David Peebles reviewed that ex parte motion, admitted that it was not served, and had it withdrawn by Defendants.

Note that attorney Carroll calls my legal arguments "crackpot" or "rants from a crackpot" throughout his submissions, while not addressing my arguments on their merits.

Note that attorney Carroll previously admitted that he was fired by his clients, under circumstances described here, here and here, see also Carroll's propensity to chat with teenagers in online sex chat rooms - here.  Apparently, the NDNY court prefers to hug criminals than to honor honest work of an attorney in a civil rights action.

Note that attorney Carroll was forced upon the Plaintiffs by the court that denied to Plaintiffs an extension of time when the ex parte motion by Defendants was filed - since Carroll was fired, but not released by the court, Carroll explained to the Plaintiffs that he "has" to defend them on that motion, even though he was fired.

Note that Carroll was forcibly "re-hired" on a condition that he acknowledges that Plaintiffs DO NOT oppose my motion for attorney fees AGAINST DEFENDANTS.

Note that Carroll then opposed my motion for attorney fees AGAINST DEFENDANTS, while the motion did not seek money from his own clients.

Carroll actually claimed my motion to recuse filed in May, this one:




was scheduled to be discussed on June 3, 2016 - of course, such scheduling was never sent to me. 

In fact, the court actually denied Carroll's request to schedule my motion for June 3, 2016, or reference of my motion to recuse to David Peebles - but Carroll still claimed that the motion was not only discussed with Peebles in the ex parte hearing of June 3, 2016, but decided by Peebles on that day - see Affidavit and Memorandum of Law of Carroll referenced above.

Yet, on June 3, 2016 the court did discuss Defendants' ex parte motion for an anti-filing injunction against me:

and sealed - including from me - the transcript of that discussion.

When I, naturally, made a motion for access to the sealed transcript discussing one motion that I filed (according to Carroll) and one motion, an ex parte motion, filed against me, according to the entry, both Carroll and Donnelly, attorney for the Defendants, vigorously opposed the motion for access claiming that I am not entitled to see what was the contents of discussions of (1) my motion or a (2) motion against me filed in an ex parte manner.

While doing it, attorneys Woodruff Carroll and Erin Donnelly used their usual strategy - Carroll tried to lie and say that Donnelly withdrew her motion after Peebles acknowledged that it was filed ex parte,

So, Carroll claimed that service of Erin Donnelly upon Erin Donnelly of her ex parte motion against me was in accordance with the court's directions - which is an accusation of judges of the court not simply of impropriety, but of imbecility.

and Donnelly tried to just brazenly state that, no, she did not withdraw the motion, but I was not entitled to be served, was not entitled to be present, and there is no problem with not serving me with anything regarding the motion, and no reason to give me access to the transcript of an oral argument of that motion.

So, Carroll continues to fight against my right to recover my legal fees NOT from his clients, but from the Defendants (and thus working for the Defendants), while admitting that two motions regarding me were discussed at the ex parte hearing of June 3, 2016, but while also claiming that I have no right of access to the transcript of that discussion, and that all my arguments are "rants from a crackpot".

Donnelly continues to claim that I am simply not entitled to see motions filed against me, exhibits filed with that motion, be noticed or present at the oral arguments of those motions, or see transcripts of those oral arguments. 

In that Donnelly and Carroll - and NDNY, obviously - agree.

I have no rights.

No right to be notified when a motion against me is filed.

No right to see exhibits filed with that motion.

No right to know when an oral argument on that motion is scheduled.

No right to access to transcript of oral argument on that motion.

Just - no rights.

Why?

Because I am a "crackpot" (according to Carroll), because I was suspended from the practice of law in the State of New York because I "sued everybody who is anybody" (information NOT reflected in my disciplinary proceedings, so, I understand, Peebles shared this knowledge with Carroll at the ex parte hearing with the now-sealed transcript), and because anything I file is "rants from a crackpot" not worth reading or mentioning.

With the exception, of course, of my work in this very lawsuit, Argro v Osborne, based on which Carroll got paid - while vigorously fighting to deny me ANY payment for 3.5 years of work.

But, my work over 3.5 years that Carroll got paid for, and not I, is not worth mentioning.

After all, I am just a constantly ranting crackpot who has no rights because I "sued everybody who is anybody".

Right?

On lawyers and prayer

I often write on this blog about separation of church and state issues.

As an attorney, I opposed, on behalf of my client, a subpoena to have a deposition at a church, in other words, an exercise of state power compelling a person, under the threat of arrest and incarceration for contempt of court, to enter and remain in a house of worship, over the person's objection.

The attorney who wanted to compel my clients' appearance there was a part time New York State (Town of Denning) judge Jonathan S. Follender.

The person who spread the rumors that I am nuts for siding with my clients on the issue of freedom FROM religion in that case is the current Acting Delaware County District Attorney John Hubbard, who (without disclosure) was the law partner of the recently retired Delaware County Judge Carl F. Becker.

Hubbard contaminated all criminal and Family Court child abuse cases handled by Judge Becker from 2002 to July of 2015 when Becker retired - but he keenly followed the "deposition in a church" case, because he was previously involved in that case as a real estate attorney.

And, I opposed public officials advancing their religious beliefs in their public office.

And, I opposed consideration of attending church or singing in a church choire as a factor in granting any benefits by federal, state and local governments.

But, as to the recent Texas case where a lawyer is threatened with discipline for praying for the successful outcome of a case and posting his prayers on Facebook - I support the lawyer, even though I myself am not religious.

Work of an attorney is tough, and that is demonstrated by:

• high rates of suicides among lawyers;
• high rates of alcohol abuse, depression and anxiety among lawyers.

A lawyer's job is to deal, professionally, with conflicts, and a lawyer is supposed to, first, bring a conflict to court, then, crystallize the conflict for the fact-finder, and win the conflict for the lawyer's client.

People come to court to resolve conflicts when nothing else helps, and they pay the lawyer to win, therefore the stress.  Count in long hours of work.  Count in separation from family and what family is doing because you are buried in work.

If you are a believer, I can very well see a lawyer praying for a good outcome of a case.

The reasoning for the supposed discipline against the attorney is ridiculous. 

The prosecutor was concerned that jurors will violate their oath and will read the prayers.

First, it will not be the lawyer's fault.

Second, a prayer by a lawyer has no potential to contaminate the jury pool.

And, third, prosecutors contaminate the jury pools all they want with publicity about criminal cases from the time charges are brought - entitling the criminal defendant to counter-balance that negative publicity with publicity of his own.

Yet, in this particular case, the prayers quoted as posted by the lawyer online, did not contain details of the case.

It is also apparent that the disciplinary investigation against the praying Texas attorney were started at the urge of a prosecutor.

I doubt that any disciplinary investigations would be started on a complaint of a criminal defense attorney.

A prosecutor would need to be slapped with civil contempt of court (a very rare occasion) or convicted for a crime (an even more rare occasion) for any discipline to be considered against him, if any - and that is in any state, including the blessed state of Texas, which is a death penalty state.

If a prosecutor would be caught posting prayers on Facebook, there would be an avalanche of "God bless-ings" from the audience, because a prosecutor is presumed to be "on the right side" and is praying "for the right cause", while a criminal defense attorney praying for a positive outcome for his client is commonly perceived as a scumbag praying for another scumbag get away from his just punishment, no presumption of innocence exists in the mind of the general public.

And, as a contrast, if a criminal defense attorney would have a couple of trips to a mental health hospital, he would immediately be in front of disciplinary authorities questioning whether the lawyer is still qualified to practice law.

Not so if that same lawyer is a prosecutor.  For example, the Dallas, TX DA Susan Hawk is back from her THIRD trip to a mental health hospital and is handling criminal cases, including - since it is Texas, a death penalty case, death penalty cases, too.

So, a mentally ill prosecutor can make a decision whether to pursue taking a person's life through the power of the state, and a civilian attorney's license would be revoked if he shows just some mental h health disability, as it happened in New York to attorney David Roosa who was, without ANY prior mental health hospitalization (I reviewed his lawsuit challenging legitimacy of suspension) suspended for 7 years because of "mental disability".

It is apparent that a criminal defense attorneys are treated differently in the disciplinary process than prosecutors.

Texas should stop using attorney licensing process to take out criminal defense attorneys to suit the needs of the prosecution.

Texas should refrain from prosecuting a criminal defense attorney for posting prayers on Facebook at the request of his opponent, a criminal prosecutor. 

If a criminal defense attorney needs the help of the Almighty in his work - and in this country, criminal courts are extremely harsh and unfair, even judges themselves admit that - the state must not interfere.

The end of private prisons?

The Justice Department reported it is not renewing contracts with private prisons, with a view of reducing and, finally, eliminating the use of private prisons in the U.S.

Great news, if that will actually happen.

The U.S. District Court for the Southern District of New York denied qualified immunity for a police officer sued for fabrication of evidence

Another interesting case, and a sign of new times, came from the New York federal courts - from the U.S. District Court for the Southern District of New York, which denied a police officer qualified immunity for fabrication of evidence and pursuing criminal prosecution on the basis of a false affidavit.

The court decision is here.

I will elaborate on this post later.

Stay tuned.

Yahoo! NDNY Judge Lawrence Kahn CAN read, and be reasonable and fair - when it does not concern "the Neronis" and the judge's personal grudges

Yesterday I wrote about the Senior U.S. District Court Judge for the Northern District of New York Lawrence Kahn, that he really cannot read - not the record, not the docket entries in the record, because he treated a motion filed by my husband as filed by me, and decided it that way.

And, that Judge Kahn falsely claimed that I am disbarred in the same decision, which is not true.

Yet, it appears that Judge Kahn lost his ability to read, comprehend and produce reasoned decisions only 6 days ago - because as recently as on August 12, 2016, he produced a very reasoned and fair decision denying prosecutorial immunity (a VERY rare case) because, even though the pleadings did not make clear in which capacity the prosecutor acted, there was a reason to believe that the prosecutor may have acted in an investigative capacity, and thus would not be entitled to absolute prosecutorial immunity.

Here is the decision in Brown v Oneida County, New York, and here is the complaint based on which Judge Kahn made his decision.

And, here is a decision of the same Judge Kahn dating back to September 2011, a very fair decision, striking as unconstitutional New York's "physical office" requirement for attorneys who live out of state, but not in-state.  The decision was overturned by the 2nd Circuit in 2016, but it is clear that it is Judge Kahn's and not the 2nd Circuit's decision, that was fair and based on the law.

So, Judge Kahn did have ability to read the record and reason - but abruptly lost that ability when his decision concerned his own misconduct (motion to recuse) in my own and my husband's motion, and when it concerned my husband's motion to vacate his prior decisions that became unvalid based on new court precedents.

It is "coincidental" that Judge Kahn falsely accused me of having been disbarred and falsely claimed that I, and not my husband, made a motion to vacate under Rule 60 at the very same time when he knows I am digging at his, and other judges' of his court, participation in the behind-the-scenes secret-membership organization the New York State-Federal Judicial Council, where information from that case may revive my lawsuit from 2014 against Judge Kahn personally, for his out-of-court activities and case-fixing.

See docket report of Neroni v Peebles.

See Amended Complaint in Neroni v Peebles.

See order of dismissal of Neroni v Peebles "as frivolous" and denying my request to recuse David Peebles the Defendant from presiding over the case as a judge - by a judge who is a witness (and, possibly, a participant) in the events charged in the lawsuit who was since elevated to the position of the Chief Judge of that court.

Maybe, after reading that lawsuit, it will become clear why my disciplinary case was transferred from 3rd to 4th Department based on an ex parte court order, and why I was suspended from the practice of law - as an attorney from Syracuse, Woodruff Carroll, recently said in a sworn statement to the court, I was suspended for "suing everybody who is anybody".  Not that that, political, motivation of my suspension was reflected in my disciplinary proceedings.

So - Judge Kahn can actually read.  He is just corrupt and prone to disregard the law when he is bent on personal retaliation, not demented - I don't know whether that is any relief for those appearing in front of him.

Yet another licensed occupation - mental health professionals - challenge the "ethical" gag rule on using professional knowledge in expressing opinions about candidates for public office

Attorneys have a rule prohibiting them to "falsely" criticize a judge or a candidate for a judicial seat during election campaign.

Of course, the rule is interpreted as a complete gag on criticism of judges, with severe sanctions, up to loss of livelihood and incarceration.

As an example, attorney and publisher Roger Shuler, Alabama, was put in jail for an indefinite period of time for criticizing misconduct of police, the Alabama Governor and several judges, and was released after a media outrage after 5 month in jail.

Dr. Richard Fine, California was released after being put in jail for "contempt of court" by the very judge whose misconduct and corruption he was criticizing.  Dr. Fine was put in jail for an indefinite period of time, and was "abruptly" released after 1.5 years in jail, with a major portion of it spent in solitary confinement.  Yet, as a result of Dr. Fine - who was disbarred for his efforts to clean up the state judiciary - California legislature gave local judges a retroactive immunity for CRIMINAL corrupt acts, an unheard-of scope of immunity.  And, no corrupt judges correctly pointed out by Dr. Fine suffered any accountability.

And, as the freshest example of retaliation, the Pennsylvania Attorney General Kathleen Kane was railroaded into a criminal felony conviction for her investigation of the "ol' boys' club" exposing misconduct in the highest judicial and prosecutorial offices in the state.

Seeing what is occurring - and is still occurring - to attorney whistleblowers against official, and judicial, misconduct, attorneys keep mum and fail to inform the public about their opinions about judges - which is a problem recognized 136 years ago by a Pennsylvania judge:

“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).

Now a similar rule came to the attention of the press and bloggers regarding the licensed mental health professions where mental health professionals actually asked to take that rule out because they wanted to express their opinion that the presidential candidate Donald Trump is not fit for office because he is nuts.

The mental health professionals openly asked the government to repeal the so-called "Goldwater rule" adopted by the American Psychiatric Association in 1973 (at the height of the Cold War, by the way) "declaring it unethical for any psychiatrist to diagnose a public figure’s condition “unless he or she has conducted an examination and has been granted proper authorization for such a statement.”

So far, 2,200 mental health professionals have trumped the rule to criticize Trump - by signing the "anti-Trump Manifesto" of "citizen therapists".

I do not know whether Donald Trump is nuts or not, and do not share the opinion of the mental health professionals, but I do not see why those mental health professionals cannot express that opinion openly if they see the signs.  It is, after all, their liability for defamation to Donald Trump, and if they are willing to risk it - freedom of speech allows criticizing a candidate to public office.

But, in both cases, of attorney licensing and of mental health professionals licensing, the issue becomes - how do "gag" rules on criticism of people already occupying public office and who are running for public office, criticism fully protected by the 1st Amendment, comports with the declared purpose of occupational licensing - protecting the public?

Isn't fully informing the voters actually protecting them from bad decisions at the polls? And gagging criticism unhealthy for the democracy and the public?

Anyway, it is the second profession, after lawyers, starting to raise the issue that the licensed professionals should not be prohibited from criticizing candidates for public office using their professional knowledge.

And, in the situation with mental health professionals, they often see no more of the patient before diagnosing the patient than they see Donald Trump, and, possibly, they see a lot more of Donald Trump (on TV), and are a lot more capable of reviewing his reactions, mimics, body language, conduct etc., what is usually used to return a mental health diagnosis in a one-to-one meeting with a patient.

Granted, Donald Trump did not choose critics as his physicians. 

And, granted, if he did, the diagnosis would have been covered by privacy laws.

And, granted, a mental health diagnosis, casually slapped on a person for his or her political views or behavior in a political campaign, may be, first, damaging, second, may smack of Soviet-type "punitive psychiatry", and, third, raises real defamation issues for the person publicly slapping somebody who never hired that person as a mental health professional with a mental health diagnosis.

That's why when mental health professionals publicly express their opinions about mental health of candidates for public office, those opinions are not valid medical diagnoses.

And, of course, such a long-distance mental health evaluation will not stand in court, if mental health professionals are sued for defamation.

And, accusing somebody to have a mental health disease in compatible with holding public office, while that person does not have such a disease, is not simply defamation, but defamation per se, where no harm needs to be proven.

Yet, it is the mental health professionals' own risk to take, and the state, as a condition of licensing their livelihood, has no right to impose any dating-back-to-Cold-War gag "ethical rules" on criticism of candidates for public office.

Which applies also to lawyers and to everybody else.

When a presidential candidate, a person who controls "the big red button", is sought to be elected, the public needs all information it can get to make a decision who to choose.

That's why the 1st Amendment is even in existence - to promote public debate of often sensitive issues and to thus help preserve the democracy in this country.

For that reason, there should be no "gag ethical rules" on criticism of public officers or candidates of public office for licensed professionals of any kind.

Not lawyers, not doctors, not mental health professionals, not anyone else.