D.C. Bar does not "like" attorneys' Facebook "likes" - and comments

The D.C. bar - the very one that refused to pursue Hillary Clinton and her attorneys for destroying evidence in defiance of a court order and that instead targeted for discipline a whistleblower attorney Ty Clevenger for forcing into retirement a federal judge based on his sexual misconduct - issued an "ethical opinion" "cautioning" lawyers against fully expressing themselves publicly in social media.

The opinion suggests that:

1) law firms are "encouraged" to monitor their attorneys' posts on social media to verify whether their employees comply with disciplinary rules:

Since law firms are "encouraged" to monitor postings of lawyers in social media regarding compliance with any and all disciplinary rules, the claim that it is done to verify that the particular attorney does not disclose confidential information in social posts is just a pretext for a larger spying on attorneys' private out-of-the-job lives on the Internet.

2) attorneys are threatened not to lie in their social media posts, because that exposes them to the disciplinary rule regarding the attorney's "duty of candor":

Of course, the duty of candor is to the clients and to the tribunal, and not whether you look 70 or 30 in the photo you post online.

3) Attorneys are encouraged to post bold-lettered disclaimers that their communications on social media are not legal advice and do not lead to attorney-client relationships - with a warning that even a disclaimer may not help, if attorney's "subsequent conduct is inconsistent with the disclaimer".

Think how many friends you may have on social media who will not think you are a freak, if you put a bold-lettered disclaimer on your Facebook, Twitter, LinkedIn, Pinterest, Instagram, WhatsApp, Messenger, or what-not accounts.

Or - are you supposed to add that bold-lettered disclaimer to all your messages? 

Like:  "hey, how are you today? - but, please, be warned, that anything I tell you today in my messages is not and is not intended to be legal advice, and my messaging with you does not and will not lead to an attorney-client relationship."

Just think how many replies you will get to this one, and what kind of replies.


4) The ethical rule warns against "inadvertent acquisition of information", forming a "relationship" with unknown people (think accepting friend requests from people you never saw), or expressing your own views through comments, likes or tweets, if your views are contrary to the "interests" of your clients:

Apparently, the ethical opinion hints that

• when clients hire an attorney, clients literary own him, even in his private life, and control his private life and his public political life as a citizen;
• that an attorney should only represent people who he sides with on all issues and who have uniform interests - as in: an attorney should not represent clients with views and interests contrary to one another, and
• that the prohibition is not on holding views contrary to those of the client, but against publicly expressing them - so this rule is a manual of hypocrisy for lawyers.

Of course, all of that is pure nonsense.

Imagine that an attorney is a child of a divorced couple, where the attorney's one parent was abusive against the other, or prevented the attorney, as a child, to communicate with the other parent.

Now, should this attorney be ethically bar by "personal interests" from representing a parent who would like to bar the other parent from communicating with the child for legitimate reasons.

Should the attorney be barred from communicating a child in such a setting.

Should the attorney lay bare all of his childhood to his clients, or turn them down?

Or, should the attorney still proceed in representing the client (despite contrary "personal interests"), yet, not post about his or her childhood experience on the social media - and not express his or her opinion regarding parental abuse or misconduct in preventing children from communicating with the other parent on social media?

Or, if an attorney is representing a mother alleging sexual abuse of a child by the father, should the attorney abstain from also representing, in a separate case, a father claiming that the wife hurts children by falsely claiming sexual abuse of children by the father and subjects them to endless sex abuse evaluations by OB/GYNs? 

Or, should the attorney simply not make known his opinions as to sexual abuse of children by their parents (when it really happens, and it does happen), and as to false allegations of sexual abuse of children by parents in order to win a court custody or divorce battle (and that happens, too)?

So, keeping your opinion mum is now the ethical obligation of an attorney?

So, it is expressing your opinion - not having it - that creates a conflict of interest and an unethical situation?

5) The opinion also "encourages" attorneys

• not to allow social media to collect his contact list from his e-mail (which happens anyway if the attorney opens a web-based free e-mail address, which most of attorneys do for convenience and cost-control);
• to monitor reviews about themselves and ask to remove incorrect posts - good luck with that; and
• restrict privacy, communicating with only the people the lawyer knows well and trusts - which is, in our day and age, a requirement for a lawyer to go back to the stone age and live a life of a hermit.

Of course, the government, as a condition of allowing a person to earn a living in a certain government-regulated trade or profession, may not impose restriction on the person's personal and political life - and especially of the extent the D.C. bar tries to.

And, of course, where the "rules" are so sweeping, and so contrary to the realities of everyday life, and so vague and overbroad, that it can be fairly predicted that the rules will not be followed.

Which provides, in itself, a rife ground for selective enforcement and corruption.

After all, the legal profession "regulates itself", or, is engaged in unlawful regulation of its own competitors.  Consider that the U.S. Supreme Court has ruled in 2015 in North Carolina Board of Dental Examiners v Federal Trade Commission, that regulation of attorneys by super-majorities of attorneys is an antitrust violation, unless there is a statutory approval or an oversight by a neutral government body.

The current D.C. bar Board of Professional Responsibility issuing these opinions is comprised of 100% of attorneys:

Robert C. Bernius is an attorney from Nixon Peabody, a "Global 100" law firm, and a competitor to attorneys Bernius strips of law licenses and the right to earn a living.

Attorney Bernius is double-Ivy-League-educated (Brown University and Yale Law School),

self-reports on his law firm's webpage that he is admitted in 17 jurisdictions, including the U.S. Supreme Court,

and reports of his total recognition by the various "peers" (not customers) and being a member of the D.C. Board of Professional Responsibility as part of his business advertising -

like, "come hire me and my law firm, we are that good, and fully protected, and whatever we do, I will make sure we will never be sanctioned - after all, I am the law".   

Oh, and while issuing opions that are in direct violation of attorneys 1st Amendment and making the information that he is part of Board of Professional Responsibility part of his attorney advertising, Bernius has the audacity of claiming the highest rating and recognition on "ethics", "legal competency" - and the 1st Amendment:

The Vice-Chair of the D.C. Board of Professional Responsibility, Patricia G. Butler is an attorney and a highly-paid federal employee, and is thus also regulating her own competitors - apparently, in violation of federal antitrust laws.

I also wonder when does attorney Butler work in her job as the member and even the Vice-Chair of the Board of Professional Responsibility of the D.C. Bar - after hours or during the hours when us the taxpayers pay her over $226,000 per year to do something entirely different than regulating attorneys admitted by the D.C. bar?

Jason E. Carter, the Board's former Vice-Chair and present member, is an attorney and a high-ranking federal employee: he reportedly is an Associate Director for Europe and Central Asia of the U.S. Attorney's Office's Criminal Division, Office of International Affairs.  He is both a competitor to attorneys he disciplines, and a very busy man, on the payroll of us the taxpayers, and there is a question - where does he get time for the regulation of the D.C. bar, when his Associate Director job for the U.S. Attorney General, Criminal Justice Division, Office of International Affairs, for Europe and Central Asia must be taking all his waking hours?

Mary Lou Soller is a civil and criminal defense attorney in a D.C. law firm Miller & Chevalier dealing with tax law and white collar crime.  Ms. Soller is also a competitor of attorneys she is "regulating" through the D.C. Bar's Board of Professional Responsibility.


The next member of the D.C. Bar's Board of Professional Responsibility, Billie LaVerne Smith, is not an attorney, but is reportedly a federal employee, a dietitian employed in the Office of the Aging:

Thomas R. Bundy, III is an attorney and partner in a D.C. law firm Lawrence & Bundy.

Thomas Bundy is a competitor of attorneys he is "regulating".

John C. Peirce is an attorney in Washington, D.C., according to his own LinkedIn profile, and a competitor to attorneys he "regulates".


David Bernstein - if I've got the correct David Bernstein - is, according to his LinkedIn profile, an attorney for the Jewish Council for Public Affairs in Washington, D.C., and a competitor to attorneys he regulates.

Matthew G. Kaiser is a founding partner at Kaiser Dillon PLLC, a law firm in Washington, D.C., "a small litigation boutique firm", according to attorney Kaiser's biography on the site of George Washington Law School, where attorney Kaiser is listed as an adjunct professor.

Imagine - a partner in a law firm, an adjunct professor and a member of the Board regulating attorneys in D.C. - when does attorney Kaiser get the time for all of that?

Not to mention that attorney Kaiser is a competitor to attorneys he "regulates".

So, out of 9 members of the Board of Professional Responsibility, 8 - a super-majority - are attorneys "regulating" their competitors, or, rather, deciding how to squeeze out their competitors.

That's exactly what the U.S. Supreme Court - and the Federal Trade Commission - meant in stating that such anti-competitive regulation either has to have the approval of the Legislature or supervision of a neutral governmental body.

Upon my information and belief, D.C. bar has neither and operates in violation of federal antitrust laws.

And that is exactly what a former federal antitrust attorneys warned State Bars against - competitors disciplining competitors not for the benefit of consumers, but to quash competition.

The D.C. Bar's latest "opinion" as to how an attorney should behave during attorney's personal time on social media, is, apparently, one of the efforts of the "regulators" to create a net of vague and grossly over-reaching rules that would be violated anyway, so the "regulators" will decide who they would let live - as a favor that can be called in the future, or whom, of their competitors, they will sink.

By the way - I put a "like" on the Facebook page of D.C. Bar - not because I like the D.C. Bar, but because a "like" is sometimes just a bookmark to follow certain pages and events.

And the D.C. Bar, with its own presence on Facebook, cannot be unaware of such use.

Or - are they on Facebook to follow their own opinion - to spy on attorneys?

By the way, the U.S. Court of Appeals for the 4th Circuit has ruled back in 2013 that a Facebook "like" (which D.C. Bar opinion also "cautions" about) is a form of protected speech - in a case where an employee of a Sheriff's Department was fired for a Facebook "like" of his boss's opponent in a re-election campaign...

I wonder if the D.C. Bar is aware of such a development of constitutional law - or if they do not "like" it?

#IStandWithMartinBarnettReiner. Yet another attorney is punished for claiming judicial misconduct and refusing to comply with unconstitutional court orders

In 2014, a California attorney Martin Barnett Reiner was suspended from the practice of law for 6 months for "disobeying 3 court orders".

The order of discipline describing the "disobedience" actually describes criticism of judges and claims of judicial bad faith, misconduct and corruption resulting in 2 out of 3 orders of sanctions:

So, in one case, Attorney Reiner called a panel who ruled against him "imbeciles" in a letter - which means outside of court proceedings.

Attorney Reiner was sanctioned for that conduct $2,500.

The second order imposed a $2,500 sanction for accusing a judge of "being corrupt, incompetent, and a liar".

I will try to obtain the actual orders of sanctions, for I believe that the sanctions were imposed by the objects of attorney Reiner's criticism.

So, in 2014, attorney Reinder was suspended from the practice of law for criticism of judges.

And, a federal court reciprocally suspended him in the same 2014, against his opposition claiming that he was suspended unconstitutionally, and reciprocal discipline by federal court during legal challenges to such a suspension is inappropriate.

By the way, in New York, the New York Court of Appeals claimed that calling judges "whores who want to become madams" is not subject to any attorney discipline whatsoever.  Not only that attorney, Martin Erdmann, was not disciplined, but he went on to become a judge himself.

Anyway, in 2014, attorney Reiner called three judges "imbeciles" in a letter outside of court proceedings - and was sanctioned $2,500, and called a judge "corrupt, incompetent, and a liar" - and was sanctioned another $2,500 - and was suspended for those sanctions (plus one other sanctions that the disciplinary court claims to be unrelated to criticism of the judiciary, and attorney Reiner claims is so related).

In at least one of the three workers compensation actions, attorney Reiner sought to recuse/disqualify a judge for bias and incompetence:

The blessed California State Bar that is subject of a huge controversy now, to the point that the State Legislature denied to it authority to collect member dues - which the California State Supreme Court gave to the State Bar right back, illegally (and that is the same court that ruled that representation of a criminal defendant by a suspension attorney is not a violation of the defendant's right to effective representation of counsel, making attorney discipline in California for "one of the primary missions", protecting consumers (I wonder what other missions for occupational regulations of attorneys are for the State Bar of California) -

meaningless.

So, in March of 2014, attorney Martin Barnett Reiner was suspended by California State Bar for 6 months for criticizing judges.


In February of 2015, attorney Reiner was reciprocally suspended from the bar of the U.S. District Court for the Central District of California, despite his vigorous opposition claiming that reciprocal discipline against him in federal court is inappropriate where the state discipline was imposed for whistleblowing about judicial misconduct.

Discipline of an attorney for criticism of judiciary is, undoubtedly, content-based regulation of speech - I doubt that strict scrutiny was used in imposition of sanctions upon attorney Reiner.  Strict scrutiny is never used in such cases. 

In June of 2015, the U.S. Supreme Court decided Reed v Town of Gilbert, where the Court declared content-based regulation of any speech, even commercial speech, without strict scrutiny, unconstitutional.

In June of 2016, the U.S. Supreme Court decided Williams v Pennsylvania, where the U.S. Supreme Court, in a majority holding, in very broad general terms, declared court decisions where deciding judges act as both accusers and adjudicators, void on due process grounds.

At least under Reed v Town of Gilbert, discipline against attorney Reiner is unconstitutional - and thus void - since at least June of 2015.

One of the judges challenged by attorney Reiner's criticism, did impose sanctions upon him - supposedly not for criticism, but apparently because the judge was disgruntled by an "attack on integrity" in attorney Reiner's request for disqualification of that judge based on ethical violations.

In view of unconstitutionality of sanctions, attorney Reiner refused to pay the fines and comply with the order of suspension.

What is the position on this subject of the California State Bar that has as "one of its primary missions" protection of the consumer?  Where making motions to recuse and criticizing judges is one of the duties of an attorney in order to secure for their clients the clients' constitutional right to impartial judicial review?

California State Bar obtained a disbarment of attorney Reiner for "disobeying the order of suspension".

In the order of disbarment of November 22, 2016, the State Bar Court has ruled that "disobedience is
not the proper mechanism for challenging a final, binding, and enforceable court order".

Where an order is unconstitutional, as provided by at least one, and likely two, U.S. Supreme Court precedents decided after the order of suspension, and the order of sanctions, were issued, such orders are neither final, nor binding or enforceable.

But, yet, the California State Bar Court has ruled that attorney Reiner's continuing insistence that sanctions and discipline based on sanctions against him is unconstitutional

- and sanctions against him for criticizing judges, and discipline based on those sanctions is unconstitutional, based on at least one U.S. Supreme Court precedent (Reed), decided after the sanctions and the discipline is imposed and de facto overruling both the sanctions and the discipline - are "aggravating factors" that justify his disbarment.

For the State Bar of California, invoking unconstitutionality of a court order is an "aggravating factor" to impose further discipline upon an attorney and to permanently deprive him of his law license and right to earn a living.

Please, note that attorney Reiner was sanctioned in worker's compensation proceedings.  Rich people do not go to worker's comp proceedings.  Attorney Reiner is an attorney for the poor - and injured - people.

And, California State Bar recognizes the existence of the so-called "justice gap" in California - inability of Californians to afford services of a licensed attorney - but in its own way.

On the one hand, California State Bar removes attorneys who actually provide services, and vigorous and fearless services, for the poor.

On the other hand, California State Bar uses the poor to collect money - see California State Bar effort to establish a "fund" to close the "justice gap".

Actually, the justice gap is closeable in two steps: deregulation of the legal profession and allowing consumers who cannot afford a licensed attorney, to hire anybody their trust to represent their interests.  After all, it is their choice of who they think may represent their interests best - and the government may not prohibit competent adults to make their own choices of who will serve them best in a private representation, right?

The second step is to stop removing from the reach of poor consumers attorneys who are actually work for those poor consumers, and especially for doing their job - in the case of attorney Reiner, sanctions rained upon him after he made a motion to disqualify a judge and accused several judges of incompetence and corruption.

Having practiced for nearly 30 years, since 1989, attorney Reiner cannot be accused of not knowing what he is saying.  And, after 30 years of practice, attorney Reiner may have ran out of patience tolerating the nonsense that an attorney may not criticize a judge, even when a judge commits misconduct or acts incompetently in front of that attorney's very nose.

Look at the "depth" of analysis of the order of disbarment - because the sanctioning court, in 2014, rejected attorney Reiner's constitutional arguments as made "in bad faith" (figure that all breakthroughs in constitutional law could be considered "in bad faith" when made at the time when the public thought contraception, interracial marriage, homosexual sex, homosexual marriage illegal and even criminal), the sanctioning court now should reject attorney Reiner's NEW constitutional arguments in 2016, even if between sanctions in 2014 and disciplinary proceedings in 2016 two more constitutional precedents in favor of attorney Reiner, in 2015 and in 2016, were decided by the U.S. Supreme Court.

In 2016, the California Bar Court acted the same way as in 2014 - where it found as an aggravating factor attorney Reiner's federal lawsuit challenging constitutionality of disciplinary proceedings against him:

Attorney Reiner is, in fact, correct - sanctions against him, and discipline against him is illegal and unconstitutional.

And, disobeying illegal and unconstitutional law may not be subject to new sanctions by the government - although it is.

Let's remember Rosa Parks.

Her actions were illegal.

After all, there was a law telling her that her place was in the back of the bus.

And she disobeyed.

And, there is an unspoken taboo keeping the legal profession in a fear paralysis - that an attorney may criticize a judge only at the cost of his license and livelihood, no matter what the judge is doing.

That unspoken taboo is clearly unconstitutional, precedents are decided as to unconstitutionality of content-based regulation of speech - but competent, professional, skilled attorneys working for the poor are consistently, systematically, repeatedly punished for doing their job - criticizing judges where attorneys, as experts, see misconduct of such judges.

136 years after a Pennsylvania has ruled regarding attorney discipline for criticism of judges:

“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).

Yet, 136 years after that ruling, such discipline, such position that is "too monstrous to be entertained for a moment under our present system", is "entertained" across the country.

Attorney Reiner is one of its latest victims.

And, you know what I do NOT see in California?

I do not see the people of the state of California protesting in the streets against the government widening the "justice gap" and consistently removing attorneys working for the poor from their reach, for doing their jobs too well.

Even after the State Bar of California demonstrated its corruptness to the point of going against its own former head of disciplinary board, after he "turned coat" and became a whistleblower of corruption and misconduct within the California State Bar.

What attorney Reiner did is an act of civil disobedience - refusing to comply with orders that he correctly considers unconstitutional.

Sanctions against attorneys and parties for making constitutional arguments were recently addressed by Democratic "minority whip" in the U.S. Senate, Steny Hoyer, who called upon the Senators to vote "no" as to the passing of "Lawsuit Abuse Act" that could chill civil rights litigation.

Acts of civil disobedience, while often resulting in harsh punishment by the government at the time they occur, are often hailed in history as acts of heroism.

Let's remember that this entire country has been founded on civil disobedience.

Had our predecessors obeyed the King's orders, we would still have had the King or Queen other than a President.

We have just seen the result of a courageous act of civil disobedience on North Dakota.  The protestors have won so far, despite tremendous odds and after having been subjected to deprivation of water, attacks by vicious dogs and being doused by freezing water.

People are waking up to the realization that courts in this country are permeated by corruption and need to be cleaned up.

People are waking up to the realization that whistleblowers who report court corruption, who were so far repeatedly punished and sanctioned and marginalized into a status of unemployed and unemployable individuals.

And, a result similar to North Dakota's result may be possible if people finally unite in a concerted action to fight punishment of court corruption - and demand from their representative in legislature that laws against punishment of whistleblowers criticizing governmental and especially judicial, misconduct, be passed.

If the current legislators would not do that, they need to be voted out of office and replaced with those who will.

We the people can do it.

The fate of Martin Barnett Reiner - and other people like him, deprived of their right to earn a living for doing their job and for criticizing the government - should not be repeated.

#IStandWithMartinBarnettReiner.

Judge Labuda, who is under a criminal investigation for assault, has been re-elected as Sullivan County County and Surrogate Court Judge

An update on the earlier story that Judge Frank Labuda, of Sullivan County, New York, was investigated for allegations of vehicular assault upon his brother.

While the criminal investigation is pending, Judge Labuda reportedly ran for re-election without opposition, and was re-elected to the position of Sullivan County and Surrogate Court judge.

And, Judge LaBuda, reportedly, is cooperating with the criminal investigation by the New York State Attorney General (judge LaBuda own attorney under Public Officers Law 17), has an order of protection issued against him by the Delaware County Family Court, and was ordered to surrender his firearms.

#IStandWithBennettBaur. New Mexico Public Defender punished for refusing to provide substandard representation to indigent criminal defendants.

I wrote previously on this blog about a problem in Louisiana where the public defender's office invited federal lawsuits against itself, literally, asked for such lawsuits, because it could not provide effective representation of counsel to the indigents due to lack of funds.

There was no similar problem, by the way, with Louisiana prosecutors - they have enough funds for prosecutions, even if such prosecutions result in wrongful convictions and fabrication of evidence.

At the same time, I wrote about the problem with indigent defense in New York where there are caps on appellate indigent representation and a nearly complete bar for indigent defendants to have funds for experts and investigators, and where indigent defendants have to beg the court to allow such funding, with a restriction of $1,000 that makes it impossible to have effective help from experts and investigators at trial in New York - while, again, prosecutors have an unlimited budget for experts and investigators, and do not have to ask the court for funds.

After New York was sued in a class lawsuit for failure to provide constitutionally required counsel for criminal defendants at the arraignment stage, New York recently did two things:

1. introduced legislation allowing arraignments in centralized locations, so that "conveyor" arraignment counsel are available for criminal defendants at that stage - which is, of course, only a lip service to satisfying the indigent defendant's constitutional right to counsel, which would have better been fulfilled by a deregulation of the legal profession or a voucher system (suggested recently by a legal scholar) where criminal defendants can choose their own assigned counsel, based on that person's knowledge, and on the defendant's trust in that person, and thus, only good defense attorneys who actually do their work will survive;
2. introduced a legislative bill, still in the works, that would require reimbursement by the state to the Counties of the full cost of indigent defense, and thus shift financing of indigent defense from the Counties to the State (where County taxes are levied on people's houses, and where people, in a weak economy, may, and do lose their homes in order to fund County taxes, including indigent defense - which may soon result in revolts).

Recently, New Mexico added itself to the disturbing news about the abysmal state of indigent criminal defense.

Chief Public Defender Ben Baur, of Santa Fe, reportedly refused to have his office accept new felony cases in one county, Lea County, claiming lack of attorneys and lack of funding.

Attorney Ben Baur was absolutely right to do what he did.

On the one hand, there is Gideon v Wainright, the U.S. Supreme Court case requiring states to provide attorneys for indigent criminal defendants.  And, there is a New Mexico Statute requiring creation of a Public Defender's office in order to fulfil that constitutional duty.  The NM Public Defender's office claims, this year, to have a $44.5 million operating budget.

$44.5 million - seems like a lot.

But it does not seem like a lot if you consider that the office of the Public Defender reportedly handles 70,000 cases per year.

Simple math indicates that the Public Defender's office has $635.71 to expend per case - and that is, from arraignment to trial to appeals to travel to rent to legal research database to electricity bills.

Yet, here is what the American Bar Association reports as hourly rates of attorneys - and that was 3 years ago:

So, the operating budget of the New Mexico Public Defenders - including investigators, cleaners, utility bills and all - per case, covers only 1.5 hours of work, hardly, per case.

In reality, that amount is much less.

New Mexico Public Defenders office reports that it has 221 staff attorneys and 160 private (assigned) attorneys working on indigent cases - those same 70,000 cases per year.

Again, simple math shows that each attorney must handle 183 cases per year.  That means that an attorney must complete a criminal case every second day of the year.   Considering that there are labor laws and mandated public holidays, and people must have some sick days and vacations, an attorney realistically must complete a criminal case every day or every day and a half.

This is completely unrealistic, first.  Second, the public defender's office must, obviously, without proper funding, wrap up cases and force their clients into pleas instead of properly litigating cases - because the Public Defender's office simply does not have funds to fully litigate cases, and provide effective assistance of counsel, as Gideon v Wainright required, not simply a warm body with a pulse and a law license.

The U.S. Supreme Court has ruled long time ago in Johnson v Avery: " In the absence of some provision by the State of Tennessee for a reasonable alternative to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners."

In other words, the U.S. Supreme Court has ruled, 47 years ago, that states cannot enforce lawyer monopoly on court representation if states cannot provide for a "reasonable alternative" to assist "illiterate and poorly educated" (not even indigent) individuals to file petitions for post-conviction relief.

Once again, Johnson v Avery was about "illiterate and poorly educated" - which is a far wider scope than "the indigent", who can very well be literate and educated, but lacking funds to hire a private attorney.

If the U.S. Supreme Court announced a ban on lawyer monopoly in the practice of law in civil (post-conviction petitions) cases for people who are not necessarily indigent, it goes without saying that such a ban must apply in the case of indigent criminal defense.

As an additional problem, attorney disciplinary rules require that any given attorney should not take on more cases than the attorney can handle - where the attorney can provide effective, quality representation.

New Mexico Public Defender's office has a caseload per attorney of 183 cases per year.

In Georgia, a federal lawsuit was recently litigated claiming that the State of Georgia does not provide effective legal representation to children who are subject of child neglect or abuse proceedings, because attorneys for children have caseloads of 400 to 500 children per attorney.  That is only 2 times more than in NM criminal proceedings.

The ABA reportedly recommends the following caseloads for attorneys:

Of course, first, such caseloads (150 felonies per attorney per year or 400 misdemeanors per attorney per year) are unrealistic and cannot ensure effective assistance of counsel in each of these cases.

Additionally, the ABA highlights the complexity of appellate work by equating work on 150 felonies or 400 misdemeanors at trial level with 25 appeals per attorney per year, and the New Mexico Public Defender's office handles, reportedly, 70,000 cases per year, without a breakdown as to how many attorneys handle how many appeals per year on top of their trial caseloads.

And, while the death penalty is abolished in New Mexico since 2009, it is not an inviting prospect to go to prison simply because your indigent defense lawyer did not have time for you, and because you had no money for a private attorney - while the "in-between" provision (required by Johnson v Avery) of a lay representative in court is unavailable.

It is interesting that, reportedly, New Mexico spends TWICE MORE on private prisons than it does on indigent defense ($85 million on its 5 private prisons versus $44.5 on its State Public Defender Office).

In  September of 2016, the NM Public Defender testifies in front of the state legislature, asking for emergency funds, citing chronic underfunding and inability to provide - same as in New York - counsel at arraignments, and at felony first appearances.

(By the way, in New York, initial felony hearings for detained indigents are routinely waived by assigned counsel - likely because if assigned counsel are too feisty and demand a felony hearing within 144 hour of detention, in order to either have the indigent client released without bail, or get information about the case at its freshest, before the prosecution had a good chance to coach witnesses, they will never be assigned again and will lose income).

And, the NM Public Defender indicated to the Legislature that he may have to start turning away cases for lack of ability to provide effective representation, if emergency funding is not given to him.

I wonder if the NM Public Defender pointed out the state's priority funding of private prisons over indigent defense...

An additional problem affecting effective representation is that the NM public defender also has a hard time "attracting" quality representation because of low reimbursement rates for assigned private attorneys - not to mention the high caseloads.

When no additional emergency funds were given to the Public Defender's office, the NM Public Defender did the only thing that an attorney can do as a matter of compliance with disciplinary rules - deny representation to those to whom he cannot possibly provide a quality representation, due to time and budget constraints. 

That's exactly what the Louisiana Public Defender did under the same circumstances, and at about the same time.

So, how did Louisiana - and New Mexico - react to the de facto strikes of Public Defenders due to lack of funding?

Louisiana offered a "way out" by drawing in for indigent criminal representation attorneys who know nothing about criminal law - which is, in itself, a denial of constitutionally required EFFECTIVE assistance of counsel.

In New Mexico, the court and the prosecution - who could not prosecute unrepresented defendants - became more creative.

Prosecution got into sheep's clothing and pretended to be a good Samaritan defending the rights of indigent criminal defendants - the very same that the prosecution was prosecuting.

The prosecution asked the court to FORCE the NM Public Defender's Office to accept new cases, no funding and no personnel and high caseloads and inability to provide effective assistance be damned.

The NM Public Defender's office insisted on its right not to provide any legal representation when it could not provide effective representation.

The NM court, a District Court Judge Gary Clingman, who unsuccessfully ran last year for the New Mexico Supreme Court, and a judge with, reportedly, 20 years of experience,

considered it possible to resolve this constitutional crisis by simply resorting to blunt force measures. 

Judge Clingman held the NM Public Defender in contempt of court and fining him $1,000 per each of the five cases where the Public Defender did not appear on behalf of indigent criminal defendants.

But, the NM court magnanimously allowed the NM Public Defender to "purge" his contempt by actually appearing in cases where he said he cannot appear for lack of funding, lack of personnel and inability to provide effective assistance of counsel.

In other words, Judge Clingman ordered NM Public Defender to provide representation, under the threat of contempt of court (and, possibly, losing his law license and livelihood), while such representation will be in violation of attorney disciplinary rules in the first place - because, according to the Public Defender, "We can't continue to spread our attorneys so thin that they don't have time to read police reports, to meet with a client, to do legal research if necessary," he said. "This is a systemic problem."

So, Judge Clingman ordered the Public Defender to choose between violation of attorney disciplinary rules by providing a substandard legal representation because of lack of funding and personnel, or suffering contempt of court and loss of law license and livelihood. 

But, as much as Judge Clingman is upset that the Public Defender cannot, as Jesus allegedly did, feed 5,000 people with one loaf of bread.

And, the State cannot threaten an attorney with sanctions, or impose sanctions upon an attorney, for adhering to disciplinary rules, and for trying to ensure their clients' rights to TRUE effective representation - not to a "body with a pulse and a bar card".

And, the State does not have authority to order an attorney to violate attorney disciplinary rules and provide a substandard representation to any clients.

In Louisiana, as far as I could find, no sanctions were imposed upon public defenders for refusing to represent indigent clients for lack of funding.

Yet, in Louisiana, public defender officers that went on strike, went on strike by county offices, and thus it was somewhat easier for Lousiana public defenders to go on strike and impress courts by numbers, where, in May of 2016, 33 of 45 public defender offices were reportedly refusing to take in new indigent cases.

Of course, both states, Louisiana and New Mexico, stubbornly continued to pay for pre-trial detention of people to whom the states could not provide proper legal representation, rather than simply release them on their own recognizance.

Moreover, in October of 2016, the NM Legislature approved REDUCTION of the already inadequate indigent defense budget by 3% - while, obviously, not reducing the budget for private prisons, or for prosecutors.

At the same time as reducing the budget for indigent defense for 3%, the NM State Legislators also:

• approved reinstatement of the death penalty,
• approved a three-strikes law that would send repeat felons to prison for life, and
• approved a bill increasing penalties in deadly cases of child abuse - all of which laws INCREASED THE NEED for indigent criminal defense.

So, while the solution of the problem is laying on the surface - using Johnson v Avery, to declare and emergency stay on regulation of the legal profession and the lawyer monopoly, and allow lay representation in at least cases where the state cannot provide funding for licensed attorneys - the states resort to:

1) Intimidation and sanctions - New Mexico;

2) Putting the unfunded mandate for indigent defense from one source (County) upon another (State) - New York; or

3) Ordering into service attorneys who have no clue about criminal defense - Louisiana,

while at the same time, overall in the country, the states widen the justice gap by targeting criminal defense, family court and  civil rights attorneys for sanctions, suspension and disbarment and removing the already scarce and disappearing resource for indigent criminal defendants.

That's exactly what I pointed out in my now pending petition for a writ of certiorari to the U.S. Supreme Court - if the justice gap became so bad that the U.S. Supreme Court Justice Sonya Sotomayor claims she would allow forced labor by attorneys in violation of their 13th Amendment protection, the government should at the very least not widen that justice gap by targeting attorneys for discipline, simply for doing their jobs for their indigent clients.

What can result from such a disparity, ladies and gentlemen, is revolts demanding justice for the indigent defendants, or release and stop prosecuting who the state cannot prosecute without a defense attorney on the other side, but cannot provide a defense attorney either.

I wonder whether, with the new president, this country will finally wake up and see that regulation of any profession - and especially the legal profession - leads to injustices, and to injustices not only to members of the regulated profession (regulated by powerful competitors), but mostly injustices to the consumers, to the public.

In the case of New Mexico - while #IStandWithBennettBaur, the NM Public Defender punished for asserting his adherence to attorney disciplinary rules to provide either a quality representation - or no representation at all - indigent criminal defendants continue to suffer.

And intimidating attorneys into providing substandard representation to the indigent is not a solution.  At least, it is not a good, fair, or even constitutional solution to the  problem.

So, is the appointment of Jeff Sessions by Donald Trump wrong, but of Robert Mulvey by New York Governor Cuomo right? On the fundamental right of a homosexual to marry a heterosexual

The press continues to raise questions about Donald Trump's picks for office.

For example, the press claimed that Jeff Sessions, Donald Trump's pick for U.S. Attorney General, tried to stop a meeting of homosexual community in 1996 on college campus.

Specifically, in 1996 Sessions reportedly "attempted to stop the Southeastern Lesbian, Gay, Bisexual College Conference from meeting at the University of Alabama under a state law passed in 1992 that made it illegal for public universities to fund in any way a group that promotes "actions prohibited by the sodomy and sexual misconduct laws."

Once again, it was in 1996.

Homosexual sex was de-criminalized by the U.S. Supreme Court through Lawrence v Texas only in 2003, 7 years after that date.

If, formally, homosexual sex was a crime at that time in Alabama, as it was in Texas and other parts of the country, formally, a state public official had not only a right, but also a duty to try and prevent a potential criminal activity from happening.

What I do not see the press doing though, is expressing concerns about appointment of an anti-gay judge, Robert C. Mulvey,

to "serve", first, as a Chief Administrative Judge of a huge 6th Judicial District in upstate New York, and then to be promoted to the Appellate Division 3rd Judicial Department.

Yet, Judge Mulvey did the same - or worse - than Jeff Sessions in regards to LGBT community, and I do not see New York State media screaming at Governor Cuomo's appointment of a radically anti-gay judge to the Appellate Division in March of this year.


In 2002, the New York State Assembly passed a legislation, Sexual Orientation Non-Discrimination Act (SONDA), prohibiting "discrimination on the basis of actual or perceived sexual orientation in employment, housing, public accommodations, education, credit, and the exercise of civil rights".  The legislation went into effect in January of 2003.

In June of 2003, the U.S. Supreme Court de-criminalized homosexual sex through Lawrence v Texas.

The right to marry is a well acknowledged, fundamental, civil right.

In 2005 in New York, there was a federal, U.S. Supreme Court, precedent decriminalizing homosexual sex, and a state legislation prohibiting civil rights discrimination against same sex couples.

Yet, in that same 2005, Mulvey has reportedly ruled against 25 same sex couples seeking to marry on the following grounds:

1. lack of standing - Mulvey claimed that city clerks lack standing to demand permission to register same sex marriages, as they have no personal stakes in the matter.  Yet, the example of Kim Davis out of Kentucky who was sued, and went to federal prison, for failing to issue same sex marriages, show personal stakes of public officials who refuse to do their duty;
2. New York Domestic Relations Law - Mulvey rejected the claim that the language New York Domestic Relations Law is gender-neutral, because "other sections" of New York law "clearly contemplate" a union between a man and a woman;
3. Equal protection under the New York State Constitution - Mulvey claimed that he is "bound by appellate precedent" from 1992 (without mentioning the later legislation, SONDA, introduced in 2003, which overruled that "precedent");  Mulvey ruled that "plaintiffs failed to meet their burden of showing “that the Legislature was irrational in recognizing what is considered a unique and distinct social benefit derived from heterosexual marriage, to wit: natural procreation and child-rearing.” At that same time, that same Legislature already passed SONDA, which Mulvey simply chose to ignore.
4. Due process under the New York State Constitution - Mulvey found that a state's denial of a right to marry to homosexual couples does not constitute a violation of their fundamental constitutional right to marry under either the state or the federal Constitution.

By the way, Judge Mulvey made the following claim in that case:

"Although it is clear that the plaintiffs have a fundamental right to enter into opposite-sex marriages they do not have an equivalent right to enter into same-sex marriages.  The Court finds that civil marriage of same-sex couples is not a fundamental right under either the New York Constitution (Article 1, Section 6) or the United States Constitution (14th amendment). " 

So, in Judge Muvley's view, same-sex orientation is just a whim, so, individuals with homosexual orientation could just as well drop their nonsense, change their orientation, marry individuals of opposing sex, and we can all happily go home.

Of course, in 2006, the New York State Court of Appeals overruled an opposite decision, claiming that denying marriage licenses to same sex couples is unconstitutional under the State Constitution, and affirmed Judge Mulvey's anti-gay ruling by a New York City judge.

Mulvey concluded his reasoning in denying same-sex couples a right to marry this way:

"The decision to extend any or all of the benefits associated with marriage is a task for the Legislature, not the courts.   Social perceptions of same-sex civil contracts may change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.  Lawrence v. Texas, 539 U.S. 558, 603, 123 S.Ct. 2472, 156 L.Ed.2d 508, (Scalia, dissenting) (2003) If that day comes, it is within the province of the Legislature to so act."

Yet, by the time Mulvey ruled this way, "that day" already came - New York State Legislature has already passed an anti-discrimination statute, SONDA, 3 years prior.

Yet, Mulvey ducked the issue, never mentioned SONDA in the entire decision, and pretended that homosexuals could just as well change their orientation in order to marry people of the opposite sex ("Although it is clear that the plaintiffs have a fundamental right to enter into opposite-sex marriages they do not have an equivalent right to enter into same-sex marriages.").

Thus, the only fundamental right to marry for a homosexual person that Mulvey found, in 2005, despite the existing anti-discrimination legislation on the books of the State of New York, was a fundamental right to marry an individual of the opposite sex.

And, that judge was repeatedly promoted, including, as of this year, by the New York State Governor Andrew Cuomo, who is trying to badmouth appointments by the new president-elect and wage "anti-hate" campaigns.

And, I did not and do not see any media frenzy against the appointment by Governor Cuomo to the intermediate appellate court, the court where most of appeals in the State of New York are decided, of a judge who preferred to defy the State anti-discrimination legislation protecting gay couples, in order to promote his own agenda, and to sermonize, through his court decision, that same sex couples do have a fundamental right to marry - somebody else, of opposing sex.

And that, ladies and gentlemen, is disgusting - both as to Mulvey's sermonizing, and to Cuomo's and the media's hypocrisy.

The problem of who will prosecute the prosecutor gets, well, spirit-ed? spirit-ual? You be the judge

The U.S. Supreme Court gave prosecutors absolute immunity for malicious and corrupt acts in office (which, I believe, led to the abundance of wrongful convictions in this country) on the assumption that an alternative remedy, attorney discipline, is available for prosecutors - an assumption that scholars believe, is wrong.

A well known public advocacy project, ProPublica, wrote about the problem of "who will prosecute the prosecutor" who commits misconduct in criminal cases - with an indication that, basically, nobody would.

In 2010, California tried to pay lip service to discipline of rogue prosecutors - by claiming it was reviewing files of 130 prosecutors to figure out whether to subject them to discipline.

Some of those prosecutors were actually prosecuted and one (!), reportedly, suspended.

In New York, the bill to create a Commission for Prosecutorial Misconduct was introduced in 2013, and was, and, I am sure, still is, the subject of aggressive hostile lobbying against the bill by the State District Attorneys' Association described in the transcript of a public hearing on attorney discipline in August of 2015, p. 25-27,

see also an article by the Rockland County District Attorney Thomas Zugibe.

Nevertheless, the bill so far has passed both chambers of the New York Legislature - the House and the Senate - and is close to approval by the New York State Governor Andrew Cuomo

- unless, of course, Cuomo's friend, the Chief Judge of the State of New York (a former lifetime career prosecutor) and her friends will not persuade him to veto the bill.

Prosecutorial misconduct occurs not only in criminal proceedings, but also in "civil" disciplinary actions against public employees and holders of occupational licenses.

And, many attorneys pointed out that disciplinary prosecutors should themselves be not immune from discipline - which, at this time, never happens, no matter what disciplinary prosecutors do.

That is one of the problems of occupational regulation - creating classes of nobility who are above the law, people connected to the government, or those who handle disciplinary prosecutions themselves.

An unusual case necessitating to prosecute the prosecutors was reported out of Texas.

In Texas, as in every other state, liquor sales are regulated by the states.

And in Texas, as in each state, there are enforcement and prosecuting authorities for violators of liquor regulations who sell liquor without a license.

And, when the Texas Alcoholic Beverage Commission hosted the National Convention of Liquor Administration, and wanted to serve alcohol to the "liquor administrators" for some unknown reason, the National Convention of Liquor Administration was supposed to follow the law its participants are enforcing - and obtain a liquor license.

And - reportedly, it didn't.

Now, the Commission is going to investigate and prosecute itself, with predictable results.

Like judges are investigating and prosecuting judges.

Like attorneys are investigating and prosecuting attorneys - eliminating those disciplinary attorneys do not like, and keeping their friends in business, no matter what the record and the law is.

Like social services investigating foster parents for child neglect (while being the agency that placed children with those foster parents and is responsible for that same child neglect).

There should be mechanisms provided for in every prosecutorial office for prosecutions of their own members - and, as of now, such mechanisms either do not exist, or do not work, judging by the number of conflicts of interest reported by the public, and dismissed by federal courts on prosecutorial immunity grounds.

The "do what I say, not what I do" principle of our law enforcement is simply not acceptable.

And yes, there must be stricter discipline for liquor authorities who violate their own laws than for everybody else, and stricter discipline for prosecutors who violate criminal laws than for everybody else - after all, prosecutors know exactly what they are doing.

Otherwise, the claim that this country is based on the "rule of law" will remain what it is now - a mockery.

Good news from the U.S. Supreme Court - my writ of certiorari has been docketed

I received good news today from the U.S. Supreme Court - my writ of certiorari in the disciplinary case has been docketed. 

The docket No. is 16-664. 

Filings in the case may be accessed here.

The text of the petition can be read here.

Coincidentally, at about the same time as my petition was docketed, the ABA has become interested in the issue of lawyers disciplined for criticizing judges - see an article about Louisiana attorney Christine Mire disciplined for making a motion to recuse based on painstaking diligent research that showed that the judge may have been involved in changing the audio file of a court proceeding in order to show that she did disclose her irreconcilable conflict of interest to the parties and attorneys - when, according to attorney Mire, who was present at the proceeding, the judge did not disclose the conflict of interest.

The article was written by David L. Hudson Jr., a First Amendment expert and a Vanderbuilt Law School professor who, reportedly, serves as a First Amendment Ombudsman for the Newseum Institute’s First Amendment Center.

Professor Hudson's article shows that the American Bar Associations cannot any longer ignore the issue of attorneys disciplined for criticizing judges.

In view of the interest of the American Bar Association to the issue of attorney discipline for criticism of judges - which is what my petition to the U.S. Supreme Court is about - I am wondering whether the U.S. Supreme Court may now actually take my case and review it.

If that happens, it may make a huge and long-awaited difference for the country, for both the party litigants and the bar, on the issue of independent and competent representation in court. 

If the U.S. Supreme Court strikes discipline of attorneys for criticism of judges as unconstitutional, and especially when such discipline is imposed without an evidentiary hearing, and based on sanctions imposed by the judge who was the subject of the motion to recuse, the legal profession in the U.S. may be then relieved of the fear it is seized with now, and will no longer be considering an untenable dilemma - whether to fight for their client's constitutional right to impartial judicial review, or whether to intentionally not fight for their clients on that issue, in order to preserve their own license and livelihood.

I will continue to cover the issue of attorney discipline for criticism of the judiciary.

Stay tuned.