Is it easy or difficult to enforce the federal constitutional right to impartial judicial review in the state of Louisiana

An interview with a practicing Louisiana attorney Christine Mire, in English, with Russian subtitles.

This material is unique, as the topic - judicial misconduct and motions to recuse judges based on judicial misconduct - is mostly taboo in the US amongst members of the legal profession.

Yet, sun, as a US Supreme Court Justice have told us long time ago, is the best disinfectant, so here is the discussion of points of law and of facts of one motion to recuse to contribute to public debate as to how to improve access to justice in the United States.

You won't regret listening to what attorney Christine Mire has to say on the topic.

I admire her beautiful English language, her expertise as a professional lawyer, her dedication to her clients - and, last, but not least at all - her courage.

Christine Mire, the conscience of the American legal profession.

Did you only annoy a judge or did you vex him? It is time for a legislative overhaul of the law of judicial recusal, otherwise courts as we have it now is just a waste of our money, and a harmful waste, too

The word "annoy" is described by the Webster dictionary as:

The word "vex" is described as:

As dictionary definitions of these two words show, "vex" may mean "annoy", so it is the same.

Yet, 5 judges-"linguists" from the New York State Appellate Division 1st Judicial Department Renwick, J.P., Andrias, Kapnick, Gesmer, Moulton, JJ.  recently made law - not that they are allowed to make law, that is the exclusive authority of New York State Legislature, but why would they care - regarding their own recusals.

The brand new spanking law of judicial recusals in New York is now that if the judge is "annoyed" by a party or the party's attorney, but not "vexed", he does not have to recuse from a court case.

They also said that "[t]he court also acted within its discretion in ordering a sanctions hearing to ascertain whether the recusal motion was frivolous (see 22 NYCRR 130-1.1[a], [c]; see also 22 NYCRR 130-1.1[a][b])", paving the way for possible proceedings - now as regulators of attorney John O'Kelly's license to discipline attorney John O'Kelly for making a motion to recuse a judge protecting his clients' constitutional right to impartial judicial review.

After all, the 3rd Department had already suspended an attorney - John Aretakis - in 2008 for criticizing a judge in a motion to recuse without a hearing, based on sanctions of "annoyed but not vexed" judge whose was annoyed enough to sanction an attorney for daring to criticize him, and his colleagues in the Appellate Division 3rd Department agreed that criticism by an attorney of a judge is a no-no offense.

And, the 4th Department has done the same, too - suspending me in 2015 - also for criticizing a judge in a motion to recuse and for " additional complaints, filings and charges of “gross continuing judicial misconduct” against the court", and also I was denied a hearing, since I already had all the "process due me" in having a "frivolous conduct" proceedings instituted and decided by an "annoyed, but not vexed" judge sanctioning me for criticizing his own precious self.

Here is how a judge "tries" a proceeding for sanctions the judge institutes for criticizing the judge's own self - note that the judge is at the same time 

• the alleged victim;
• an unsworn witness;
• a prosecutor;
• a judge - 
• and even marks his own exhibits at that "trial" that was all the "process due" that an attorney in New York deserved before he was stripped of his license and livelihood.

Also note that after that the judge was elevated to the position of a federal magistrate, where he is now continuing to toil, "with no record of public discipline".

Why the 1st Department should be any different?  They may also now pursue attorney John O'Kelly so that he would not dare criticize the supposed cousin of Sheldon Silver for being biased against tenants in favor of landlords - surprise, surprise!

Of course, the trial judge, #Judge ShlomoHagler who was "annoyed" enough to hold a sanctions hearing against attorney John O'Kelly for criticizing the judge's precious self for his supposed cozy relationship with landlords and bias and hostility towards tenants and their attorneys, recently himself got sued for a supposed illegal sale of a lucrative real property lot as a president of a synagogue in violation of a ruling of a rabbinical court - sued by board members of his own synagogue, and the lot is adjoining an institution that was run by NYS Assembly leader (resigned and prosecuted for corruption ) Sheldon Silver.

Given that I was sanctioned by a judge who, before I was suspended based on his sanctions for criticism of his precious self, ran from the bench during a triple investigation:

• by the New York State Comptroller;
• by the New York State Judicial Conduct Commission, and
• by the FBI

the ire of Judge Shlomo Hagler may be of the kind characterized back by William Shakespear as "the lady doth protest too much, methinks".

After all, Silver is not out of the woods with the criminal prosecution for corruption yet, and who knows what can be dug up by the investigation of his ties, including his familial ties.  Striking at a critic who comes close to explore those familial ties does look like "protesting too much".

It does raise the issue of Sheldon Silver's looming presence (and influence?) as to why Judge Shlomo Hagler is still a judge, after his atrocious behavior in John O'Kelly's proceedings, why the 1st Department glossed over Judge Hagler's misconduct, why Judge Shlomo Hagler was dropped as a defendant from the lawsuit that he illegally sold a lot belonging to his synagogue, reportedly without revealing to the members of the synagogue board that the synagogue will not be able to use the proceeds for its needs because of some stipulation regarding resale of the property.

Now, John O'Kelly alleged in his motion to recuse that Judge Hagler was actually Sheldon Silver's cousin - and Judge Hagler could not have it.

Judge Hagler commenced a sanctions hearing against John O'Kelly for "frivolous conduct", for his supposed failure to properly investigate his allegations - even though the constitutional standard for a motion to recuse is APPEARANCE of impropriety, and appearances are based on REASONABLE PERSONAL PERCEPTIONS  and not on hard proof, especially that judges do not necessarily trumpet about their misconduct and bias at every corner.

More and more people going public regarding impropriety of the current "law" of recusal, which has nothing to do with the law and everything to do with the judiciary usurping the power to decide whether to step down from a case or not - no matter how conflicted they are.

Recently:

• a California attorney Linda Shao gave a video interview to a journalist about her efforts to recuse 8 justices of the U.S. Supreme Court for financial conflicts of interest in a case, and about shameful (Linda Shao said - "felonious", and she is right) tricks the U.S. Supreme Court clerk's office played not to even file her motion to recuse or not to file the most relevant portions of her motion into the docket; and
• "Law and Liberty" published an article questioning propriety of behavior of the "notorious RGB", the U.S. Supreme Court Justice Ruth Ginsburg who makes repeated statements about the U.S. President, a party in litigation in front of her, makes trips to Hawaii at the expense of Hawaii State Law School, a part in interest in a litigation against President Trump while a judge whose three law clerks are professors in that same law school is "deciding" the case within 7 miles from where Ruth Ginsburg is gallivanting at the State of Hawaii's expense - but continues to stick to his cases like glue and refuses to recuse - as well as refuses to recuse from Linda Shao's case involving as an issue a judge's connection with American Inns of Court while RGB has an American Inn of Court named after herself and has American Inns of Court "sponsor" trips of her law clerks to England.

It is interesting to compare

• what the law of recusal and criticism of judges should be in a constitutional democracy, based on the structure of power in a constitutional democracy and constitutional rights involved in such judicial recusals - let's call it "Model C";
• what the law of criticism of judges was in medieval England, "the Old Country" - let's call it "Model K"; and
• to try and place the "law" of recusal as it exists in the U.S. and in the State of New York today based on these models.

	Issue	Model C	Model K	Model used in NY
1.	Who is the sovereign	The People (Constitution, Preamble “We the People”, the Dredd Scott case – People are the sovereign, there are no subjects in the U.S.)	The King
2.	Who are the subjects	None	The people
3.	What is the government	Servant to the sovereign – the people	Servant to the sovereign – the King
4.	What is criticism of the government	People’s way to check on their servant, the government	A challenge by the subjects of the divine power of the sovereign, the King
5.	The place of criticism of the government	Theoretically – a good thing, the way allowing the democracy to work and cleanse itself	A criminal offense, seditious libel
6.	Standard of proof to criticize the government	Protected by the 1st Amendment, strict scrutiny (a judicial invention) to punish for criticism	The critic is never right.  Later on – “you need to have iron clad proof” to win a seditious libel case.	K
7.	Constitutional threshold of recusal	Appearance of partiality of the judge – the public must have, as a matter of due process, not only impartial adjudication, but also the appearance of impartial adjudication	The judge is the reflection of the King and is always right	De facto – K
8.	Burden of proof based on the threshold	Reasonable perception of partiality	Judges require ironclad proof that the judge did something wrong, and when such proof is provided (Christine Mire's case in Louisiana), the attorney is punished for providing that proof	K
9.	Due diligence to prepare the motion	Judicial collusion, corruption and ex parte communications are not exactly announced from rooftops, so what attorneys can judge upon can only be the reasonable perception and the breadcrumbs picked up from circumstantial evidence, “connecting the dots”.  Circumstantial evidence is good enough even to convict of murder in NY.	Judge Hagler: 1.       Required ironclad proof against himself; 2.       Was upset about criticism of himself by an attorney for doing his due diligence and investigating the judge Same as Christine Mire's case in Louisiana Same as John Aretakis' and my case in New York Two diametrically opposite “standards of due diligence” + I am the King standard	De facto K
10.	Who gets to try the motion to recuse	Should be – somebody other than the object of criticism, common sense and due process Judge sitting in judgment of himself problem; Potential of retaliation – accuser/adjudicator problem	Until 1792 in England – The Star Chamber, a judge sitting in judgment of himself	K
11.	Right to a jury to review accusations of criticism of the government	Should be, as with trial of any other issue of fact relevant to the party’s adjudication	Introduced in Star Chamber by Act of Parliament in 1792 (the Fox Act). The bill was prepared by the former Star Chamber judge Sir Edward Coke who knew from his own adjudications how biased a judge reviewing such cases can be. Seditious libel cases were removed from judges and placed with the jury	K
12.	Defamation of judges as a separate lawsuit to be brought by judges (idea belongs to Russian attorney Vitaliy Burkin recently stripped of his "advocate" status for criticism of corruption in the Russian judiciary)	If a judge considers himself “defamed” by criticism, as for any other citizen, the path to a remedy for that defamation lies through a separate defamation lawsuit against the party the judge thinks is defaming him. That requires that: ·         The judge prepares a lawsuit, satisfying enhanced pleading standards for defamation; ·         Files it, with a filing fee; ·         Properly serves it upon the opponent, the critic; ·         Hopes to survive an immediate motion to dismiss for failing to meet elevated pleading standards and on 1st Amendment grounds that the critic will likely win because of high standards – New York Times v Sullivan (deliberate falsehood + malice) + strict scrutiny for content-based regulation of speech ·         Hopes not to be slapped with frivolous conduct sanctions and attorney fees to be paid to the critic; If the judge survives a motion to dismiss, he still faces exposure through paper discovery, interrogatories, notices to admit under oath, out-of-court depositions and in-court trial by jury and cross-examination	The King is above the law and can have his servants summarily punish the critic or institute criminal proceedings against the critic instead trying his luck in a civil defamation case A subject cannot call the King to testify	K

Judges should not be above the law.  If they think anybody made false statements about them, their remedy is the same as for everybody else - a separate lawsuit for defamation in a court of law where the judge will have to:

• pay his own way for representing himself in this private legal matter - personal defamation of a judge, like everybody else has to do;
• put together a non-frivolous lawsuit satisfying the very rigorous special pleading standard, like everybody else has to do;
• pay all the filing and judicial assignment fees, like everybody else has to do;
• properly serve the lawsuit upon his critic, his opponent in litigation, like everybody else has to do;
• expose himself to the rigors of paper discovery and oral depositions, including questions that the judge must answer his critic (defendant in a defamation lawsuit) under oath regarding information in exclusive possession of the judge;
• expose himself to the rigors of a jury trial in open court before the public and to public cross-examination of himself by his critic;

satisfying all the requirements of the law, as everybody else has to.

If judges are afraid to submit their own personal claims to adjudication by their peers in the judicial system and to the jury - which is what it appears to be with

• Judges Carl Becker (my case),
• Cristian Hummel (John Aretakis' case),
• Phyllis Keaty (Christine Mire's case), and now with
• Shlomo Hagler (John O'Kelly's case) - and instead try to invent "rules", like the "rule of frivolous conduct" allowing themselves to turn constitutional courts into medieval courts and try cases against themselves by themselves - that IS the best proof that judges do not believe in impartiality of any judges at all, and that anybody can obtain effective and fair legal remedy from the American judicial system.

By the way, the New York State Court of Appeals has struck as unconstitutional, in 2014, "harassment by speech" criminal statute - on 1st Amendment grounds, with a dissent by the then-Chief Judge Jonathan Lippman dissenting only on the grounds that the majority opinion was not far reaching enough and did not dismiss all criminal charges on 1st Amendment grounds.

That did not prevent the same New York State Court of Appeals from dismissing in 2016 my 1st Amendment appeal from suspension for "harassment by speech" and "defamation" of Judge Becker (as decided by Judge Becker in a "frivolous conduct" proceeding instituted and tried by Judge Becker) as lacking a "substantial constitutional question".

That did not prevent the 1st Department in 2018 to rule that it is perfectly hunky-dory for judge Shlomo Hagler who was "annoyed, but not vexed", to start sanctions proceedings for "frivolous conduct" for harassment of his precious self by speech (which was deemed unconstitutional by NYS Court of Appeals in 2014) and, obviously, for making false statements against his precious self - instead of bringing a lawsuit in defamation against attorney John O'Kelly which Judge Shlomo Hagler knows very well he will lose if he files it - with sanctions for frivolous conduct against Shlomo Hagler and attorney fees for such a frivolous defamation lawsuit to be paid by Judge Shlomo Hagler to attorney John O'Kelly.

That is - if the law is to be applied as it exists for every one of us, mere mortals.

That judges do not trust their own court system to provide a fair and effective legal remedy for them in a defamation lawsuit and thus invent shortcuts for themselves turning court proceedings into medieval pre-1792 Star Chamber trials of the Old Country is a litmus test of impartiality of the American judiciary - requiring that legislatures MUST take what is going on in courts seriously, MUST address the crisis in access to justice CAUSED by the judiciary "regulating" itself and the profession it belongs to, attorneys.

When attorneys cannot establish for their clients the clients' constitutional right to impartial judicial review because that would involve breaching the supposed personal pledge of fealty to the likes of judges Becker, Hummel, Keaty and now Hagler, because doing your duty for your clients results in loss of reputation and livelihood for an attorney - it is proof that courts turned into a useless and harmful waste of public money.

Laws of recusal must be set in stone, and fast - by impartial members of legislatures having no connection with the judicial system and over whom judiciary has no control, and that will exclude any legislators who are attorneys with licenses regulated by the judiciary, "officers of the court".

What we have now as a "law" of recusal and "law" of sanctions for motions of recusal - based on judges setting their own "rules of procedure", rules of "judicial ethics", and trying their own cases by themselves in their own favor - has nothing to do with the law or the Constitution each of the American judges, including Becker, Hummel, Keaty and Hagler were sworn to uphold and protect.

Judges should be given a strong legislative kick in the butt to wake up and smell the coffee - it ain't the King's Bench any more.

Russia tries hard to step on the same rake that already deprived Americans of independent court representation. The case of attorney #VitaliyBurkin and expansion of attorney monopoly in Russia - with the urging of the American Bar Association

Since its inception in 2014, this blog is dedicated to promoting independence of court representatives, the in the United States and not only.

I repeatedly write about cases when such independence is infringed upon and especially in cases where attorneys are disciplined for criticism of their own regulator (in the U.S.) - courts and judges.

Punishment of attorneys in the U.S. for criticism of the judiciary have become a practically routine occurrence.  I wrote about some statistics of that "phenomenon" here. 

I will repost the names of attorneys I know from my own research and from research of law professor Margaret Tarkington here.

Prof. Tarkington in her law review article on attorney speech lists 48 cases from 28 states where attorneys were sanctioned for criticism of judges, from 1877 to 2007.

Kansas	1877	In re Pryor, 18 Kan. 72
California	1911	In re Shay, 160 Cal. 399
New Jersey	1930	In re Glauberman, 107 N. J. Eq. 384, 152, Atl. 650
California	1934	In re Friday, 138 Cal. App. 660, 32 P.2d 1117
Wyoming	1945	State Board of Law Exam'rs v. Spriggs, 155 P.2d 285
Iowa	1964	In re Glenn, 256 Iowa 1233
New Mexico	1966	In re Meeker, 76 N.M. 354, 414 P.2d 862
Nevada	1971	In re Raggio, 87 Nev. 369
Florida	1973	In re Shimeck, 284 So. 2d 686, 690
Iowa	1976	In re Frerichs, 238 N.W.2d 764, 769-70
South Dakota	1979	In re Lacey, 283 N.W.2d 250
California	1980	Ramirez v. State Bar of Cal., 28 Cal.3d 402
Iowa	1980	Comm. On Prof'l Ethics and Conduct of the Iowa State Bar Ass'n v. Horak, 292 N.W.2d 129
Kentucky	1980	Ky. Bar Ass'n v. Heleringer, 602 S.W.2d 165, 168
Kentucky (another)	1980	Kentucky Bar Ass'n v. Nall, 599 S.W.2d 899
Louisiana	1983	La. State Bar Ass'n v. Karst, 428 So.2d 406
Tennessee	1983	Farmer v. Board of Prof'l Responsibility of the Sup. Ct. of Tenn., 660 S.W.2d 490
Maryland?	1986	In re Evans, 801 F.2d 703 (4th Cir. 1986) (disbarred from USDC for district of Maryland), footnote 15
Tennessee	1989	Ramsey v. Board of Professional Responsibility of the Supreme Court of Tennessee, 771 S.W.2d 116
Minnesota	1990	In re Graham, 453 N.W.2d 313
Missouri	1991	In re Westfall, 808 S.W.2d 829, 833-34
New York	1991	In re Holtzman, 78 N.Y.2d 184
West Virginia	1991	Committee on Legal Ethics of the W. Va. State Bar v. Farber, 408 S.E.2d 274
California	1993	Peters v. State Bar of Cal., 219 Cal. 218
Indiana	1993	In re Becker, 620 N.E.2d 691
Washington?	1993	S. Dist. Ct. for E.D. of Wash. V. Sandlin, 12 F.3d 861 (9th Cir. 1993)
Indiana	1994	In re Antanga, 636 N.E.2d 1253
Indiana (another)	1994	In re Garringer, 626 N.E.2d 809
California?	1995	Standing Committee on Discipline for the U.S.Dist. Ct. for the Cent. Dist. Cal. V. Yagman, 55 F.3d 1430, 1437 (9th Cir. 1995)
Idaho	1996	Idaho State Bar v. Topp, 129 Idaho 414
Iowa	1996	Iowa Sup. Ct. Board of Prof'l Ethics and Conduct v. Ronwin, 557 N.W.2d 515
Kentucky	1996	Ky. Bar Ass'n v. Waller, 929 S.W.2d 181
Indiana	1999	In re Reed, 716 N.E.2d 426
Delaware	2000	In re Guy, 756 A.2d 875
Florida	2001	Fla. Bar v. Ray, 797 So.2d 556
Indiana	2001	In re McCellan, 754 N.E.2d 500 ("McClellan" in fn 39)
Indiana	2002	In re Wilkins, 777 N.E.2d 714
Kansas	2002	In re Arnold, 274 Kan. 761
Ohio	2003	Office of Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 793 N.E.2d 425
Louisiana	2005	In re Simon, 913 So.2d 816
Massachussetts	2005	In re Cobb, 445 Mass. 452
Michigan	2006	Grievance Administrator v. Fieger, 719 N.W.2d 123
Minnesota	2006	In re Charges of Unprofessional Conduct involving File No. 17139, 720 N.W.2d 807
Arkansas	2007	Stilley v. Sup. Ct. Comm. On Prof'l Conduct, 370 Ark. 294
Delaware	2007	In re Abbott, 925 A.2d 482
Kansas	2007	In re Pyle, 283 Kan. 807, 156 P.3d 1231
Utah	2007	Peters v. Pine Meadows Ranch Home, 151 P.3d 962
Utah (another)	2007	Utah v. Santana-Ruiz, 167 p.3d 1038, 1044

Additionally, through my own research I found 33 cases from 14 states:

John E. Wofgram	California	Attorney challenging the concept of judicial immunity as unconstitutional and who sided with the "Jail for Judges" movement seeking state constitutional amendments to abolish judicial immunity - by legal process	1989
Dr. Richard Fine	California	Disbarred, incarcerated and held in solitary confinement for exposure of judicial corruption	2009
George Sassower	New York	Disbarred for exposing judicial corruption, held in contempt, bankrupted	1988
Doris Sassower	New York	Suspended after she filed an appeal of a dismissal of lawsuit on behalf of clients challenging impropriety of cross-endorsing judges by multiple parties in judicial elections	1991
Doug Schafer	Washington	Suspended for reporting judicial corruption	2003
Barbara Johnson	Massachussets	Disbarred after she ran for the seat of the State Governor on a platform of judicial reform and cleaning up judicial corruption	2006
Eugene Wrona	Pennsylvania	disbarred for calling a judge a "domestic terrorist"	2006
Zena Crenshaw-Logal	Indiana	Suspended for “making false allegations against judges”	2007
John A. Aretakis	New York	The attorney who exposed child molestation by Catholic priests, was suspended for making motions to recuse and defaming the Catholic priests	2008
David Roosa Sean Conway	New York Florida	Criticized a judge for misconduct in assigning cases only to attorneys who will not do discovery, motions and trials for their clients Suspended for calling a criminal court judge who gave only a week to prepare for a criminal trial after indictment, an "evil, unfair witch"	2009
Andy Ostrowski	Pennsylvania	Criticized and continues to criticize judicial misconduct in publications and a radio show, ran for the U.S. Congress on the platform of judicial reform, is being repeatedly denied reinstatement on those grounds	2010
Lanre Amu, a Nigerian lawyer	Illinois	Made a complaint against a Circuit Judge	2011
Frederick J Neroni	New York	Disbarred after his law partner and wife criticized a judge for apparent bribery, the judge's former law parnter, a local criminal prosecutor, threatened Mr. Neroni to withdraw a criminal appeal raising the same issues, not to "burn the bridges", Mr. Neroni was disbarred after he refused to do that	2011
Jeffrey Norkin	Florida	suspended in 2013 "for making threatening and disparaging statements to a judge", and then disbarred	2013
Leon Koziol	New York	repeatedly denied reinstatement for testimony against judicial corruption before the Moreland Commission, publications and rallies criticizing judicial misconduct in Family Courts	2013
Don Bailey	Pennsylvania	Criticized federal judges in pleadings	2013
Robert Serafinowicz	Connecticut	Suspended for 120 days for criticizing a judge in an email, making a motion to recuse and filing a complaint agains the judge with state disciplinary authorities	2014
Kenneth Ditkowski	Illinois	Suspended for criticizing judicial corruption in probate courts	2014
Paul Ogden	Indiana	suspended for an e-mail criticizing a judge, ordered to pay giant disciplinary cost of proceedings	2014
James Albert Frost	Maryland	Suspended for impugning integrity of judges and disciplinary prosecutors	2014
Michele MacDonald Shimota	Minnesota	Was arrested in the courthouse by order of a judge she sought to recuse and sued, sexually abused in the holding cell, forced into a wheelchair, stripped of glasses, shoes, files, wheeled into the courtroom and forced to represent a client this way	2014
Robert Grundstein	Washington	Disbarred for criticism of judicial corruption in Ohio courts	2014
Stephen L. Hall	West Virginia	Suspended for 3 months for criticizing judges	2014
Erwin Rosenberg	Florida	Suspension time increased from what was recommended after attorney moved to disqualify the judge-referee	2015
JoAnne Marie Denison	Illinois	Suspended for 3 years for exposure of corruption in probate courts through blogs	2015
Nanine McCool	Louisiana	Disbarred after running for a judicial seat, then criticizing a judge in motions to recuse	2015
Tatiana Neroni	New York	Suspended for criticizing a judge for apparent misconduct and corruption in motions to recuse	2015
Kathleen Kane	Pennsylvania	revealed judicial and prosecutorial misconduct in e-mails, was suspended by the judge she outed, the judge resigned after suspending her	2015
Kevin A. McKenna	Rhode Island	Suspended for 1 year for criticism of judges	2015
David Dow	Texas	An attorney who exposed misconduct of Judge Sharon Keller who refused the last-minute death appeal by a statement "we close at 5" - was held in contempt and blocked from appearing in death penalty cases	2015
Russel Stookey	Georgia	Charged with a felony for seeking public records of a court operating account to expose judicial misconduct	2016
Christine Mire	Louisiana	Suspended for well-founded criticism of a judge, based on documentary evidence and testimony of witnesses that indicated that the judge altered or caused to alter court audio files of a judicial proceedings protecting herself from allegations that she did not disclose the judge's irreconcilable conflict of interest	2016
Ty Clevenger	Texas	attorney who exposed sexual misconduct of federal judge Walter Smith and insisted on reopening of his case and speeding investigation once the case was reopened	2016

Conceptual support of such punishment is exceptionally poor. 

After all, the 1st Amendment prohibits infringement upon speech, and the prohibition is absolute.

Of course, the U.S. Supreme Court, as it usually does, did invent exceptions to the U.S. Constitution and the Bill of Rights and amended the Bill of Rights by inventing, instead of a direct prohibition to infringe upon the freedom of speech, "tests" as to when such infringement is prohibited, and when it can be allowed.

But, even under the U.S. Supreme Court's jurisprudence, content-based regulation of speech must be subject to the highest levels of scrutiny, the strict scrutiny - and that applies to even the type of speech that the U.S. Supreme Court gives the lowest type of protection, commercial speech.

Not in cases of attorney discipline though. 

The U.S. Supreme Court routinely refuses to hear such cases, thus allowing states courts and lower federal courts to keep a fear grip on the bar and undermine independence of court representation.

After all, it is unreasonable to expect from an attorney such a level of self-sacrifice (and sacrifice of his family's well-being, too) that, for the sake of faithful representation of one client he would risk losing years of investment of time, effort and money into his profession. 

It is not reasonable to expect an average attorney to accept that risk of losing his attorney status, especially in the country where a motion to recuse a judge may land you without a law license, as it regularly happens in the U.S. (in the case of John Aretakis in New York, Christine Mire in Louisiana and many others) and blacklisted not only from working in a law office, even as a driver or a plumber, but also from all other regulated professions - which take in the U.S., by conservative assessments, from 25% to 30% of the market.

In other words, if you criticize a judge, you risk leaving yourself without any ability to earn a decent income for life.

The situation is aggravated by the fact that, as regulators of attorneys, American courts invented or pushed through legislatures (also permeated by attorneys as senators and advisers to senators) laws restricting or eliminating attorneys' rights to appeal disciplinary decisions. 

And, since the U.S. did not fully ratify the International Covenant for Civil and Political Rights, there is no possibility for disciplined American attorneys to obtain or even seek an out-of-the-country review of such decisions, stripping them of their livelihood for doing their job as attorneys and citizens - as attorneys from other countries, including Belarus and Russia, may do.

For example, the United Nations Commission of Human Rights fairly recently reversed denial of a law license by Belarus to Mechislav Gryb for criticism of the government.

And, the European Court of Human Rights fairly recently reversed disbarment of a Russian attorney Igor Kabanov for, among other things, criticism of a judge.

Not so in the U.S. 

With

• no meaningful court review,
• no right to a jury trial,
• no right to appeal,
• a review of attorney disciplinary cases by competitors and not by consumers of the attorney and without any decisionmaking authority by consumers of attorney's services, and with
• the statistics of the overwhelming majority of disciplinary cases against attorneys disciplined for criticism of the judiciary decided against attorneys, attorneys are forced to operate in a self-preservation mode. 

And keep their heads low as far as criticism of the judiciary goes.

To the point of letting known bad violations of human rights proceed - as it happened in Kids-for-Cash scandal in Pennsylvania - rather than criticize a judge, as Professor Jonathan Turley and Indiana attorney Paul Ogden (himself punished for criticism of the judiciary) point out.

Attorneys are not only deadly afraid to report judicial misconduct - ask a law professor what to do if a judge in front of you is committing misconduct, and he will tell you (as professors told many of my readers who asked that question) that to report judicial misconduct or challenge it in any way would be a "professional suicide" - they are proud of their "record" of never reporting judicial misconduct.

For example, one attorney I interviewed recently about his ordeal with trying to get open records for his client from the court system and getting arrested instead, proudly stated that he has never complained about judicial misconduct of any judges, even when that misconduct hurt him personally.

Given that the attorney practiced for a lifetime, and, naturally, must have seen a lot of judicial misconduct, especially after 1978, when American judges granted themselves immunity from malicious and corrupt acts, and judicial misconduct was thus encouraged, that proud statement did not sound that good.

Rather, it was a sign of operating, for a lifetime, in a forced self-preservation, survival mode, the so-called "defensive lawyering" - as compared to "defensive doctoring", doing certain procedures not to help the patient (client), but to, at the same time, charge money and protect yourself from punishment.  That's not a good thing - not in doctoring, not in lawyering. 

And, that is definitely not a good sign for consumers of legal services in need of a rigorous defenders of their constitutional right to impartial judicial review, and their constitutional right to a vigorous court defense in cases fought in court against the government, a powerful opponent with unlimited financial resources.

It is understandable that lawyers do not pay money for their law education to become penniless martyrs because of one case where a motion to recuse needs to be filed, and, as a result, that there are not many kamikazes who would want to criticize a judge, no matter how badly the client's case requires it.

The bar across the country is intimidated and trembling, keeping silent when such discipline is imposed upon lawyers, provides no support to such lawyers, instead, instantly casts them out of attorney organizations, such as the ABA and New York State Bar Association, and even rescinds book offers for foreign attorneys who were punished for their civil rights activities by obviously politically oppressive regimes - for financial and political reasons.

And, while the bar is silent, consumers of legal services suffer. 

Because the right to not just any judicial review, but to an impartial judicial review is a constitutional right - and when your lawyer is afraid to make a motion to recuse a biased or corrupt judge for fear of losing his income forever, your right to an impartial judicial review is shot.  It is simply non-existent. 

And quashing this constitutional right wouldn't have been possible without attorney monopoly, where court representation is restricted only to people who are approved - or disapproved - by the same judiciary that they are supposed to challenge in objections, motions to recuse and appeals.

Well, unfortunately, this example of keeping the bar "in check" appeared to be contagious for another country. 

Actually, Russia appears to be borrowing this American rake to step upon it - and, as it will be shown below, with the help of the American Bar Association whose members priced themselves out of the shrinking U.S. market of legal services and are now preparing expansion into the Russian market, clinching it for themselves by pushing through the American model of attorney monopoly.

A good illustration of how that attorney monopoly will hurt consumers of legal services in both criminal and civil proceedings, and out of court, too, is the case of Russian attorney from the city of Ufa in the Republic of Bashkortostan.

This past week, a young and talented criminal defense attorney, Vitaliy Burkin, was stripped of his attorney status - and instantly removed from tens of criminal cases - because of his open and sharp criticism of judges and judicial system.

What were his particular faux pas?

In July of 2017 he posted on social media a picture of three expensive cars illegally parked on the sidewalk in front of the Supreme Court of the Republic of Bakhkortostan in the city of Ufa.  Not only he posted a picture on the media, but he also called for the tow service and had them towed.

The illegally parked, and towed, vehicles, belonged to a judge and two prosecutors.

Of course, Vitaliy Burkin said in a video interview that he does not believe that judges would be so petty as to exact revenge against him for having their vehicles towed. 





Yet, it appears that Russian judges and prosecutors are made from the same ... materials as judges in the U.S. and no petty revenge is beneath them.

Even more so that Vitaliy Burkin not only had their vehicles towed for illegal parking, that was the last drop.  He also criticized - and asked the federal Attorney General of Russia to criminally prosecute - high-ranking judges of the Republic of Bashkortostan who illegally transferred some real estate to themselves.

Vitaliy Burkin also publicly made a stand against oppressive judicial decisions which were not based on the law - does it ring a bell, my American readers?

And, during review by the European Court of Human Rights of the case of Oxana Semenova, a prison inmate and a cancer patient who was denied treatment and painkillers by Russia prison authorities, Vitaliy Burkin had the duty (no, the audacity, apparently) to raise the same issues of denying cancer treatment to his client, a pre-trial detainee.

And, the most grievous error of Vitaliy Burkin's ways was, and that's his own assessment in his video interview embedded above, that he is actually a very good criminal defense attorney who undermined the conviction count for the local prosecutors by getting "too many" acquittals or reversals of convictions on appeal.

The European Court of Human Rights (ECHR) ruled against Russia in Oxana Semenova's case on October 3, 2017.  According to Russian sources, Oxana Semenova was diagnosed in prison with cervical cancer, the prison hospital lacked medical license, ability to treat cancer (radiation therapy equipment and personnel), or painkillers.  The court refused to authorize a medical release Oxana Semenova to obtain medical treatment outside the prison system, and she died in prison.  The complaint to the ECHR was made on behalf of her 14-year-old daughter.

On the same date, October 3, 2017, ECHR ruled against Russia on a freedom of speech and expression issue, ruling as unlawful conviction of a newspaper editor for publishing statements by "two Chechen separatist leaders". 

On the same date, October 3, 2017, ECHR made yet another decision against Russia on violation of free speech, declaring as unlawful "defamation proceedings against an editorial house and a journalist following the publication of two articles concerning the sinking of the Russian Navy's nuclear cruise missile submarine "Kursk" in the Barents Sea in August 2000 and the investigation into the accident".

Americans can only envy Russian, as well as other countries who have access to an out-of-the-country review of inside-the-country human rights violations, since Americans do not have such a right.

Even though in America, inmates are also denied medical care, but, due to severe procedural restrictions (15 days to file a grievance in the same jail where you are kept and face the risk of retaliation for that, in order to preserve your right to sue for human rights violations) created by the Prison Litigation Reform Act and federal law allowing federal judges to toss prisoner lawsuits as "frivolous" before they are even served, on subjective grounds, such cases, unless some powerful organization turns its eye at them, do not even get reported, much less get reviewed by any international human rights organizations.

And, even though in America,

• people are persecuted, and viciously, for critical publications against the government, as it happened last year to journalist Mark Thomason of Georgia (see also my blogs this month about #JudgeBrendaWeaver),
• persecuted for filming police misconduct, as it happened to Maurice "Mo" Crawley and Adam Rupeka in New York, legislator John Walker in Arkansas and the legislator's lawyer Omavi Kushukuru;
• criminal cases are fabricated against them, as it happened to #MarkThomason, his attorney Russell Stookey in Georgia, Maurice "Mo" Crawley and blogger #AdamRupeka in New York last year, and
• when people are, to all appearances (because no meaningful investigations are happening in such cases, so what remains are only appearances) assassinated, as it very likely happened to
• Sunny Shue in New York after repeatedly reporting on judicial misconduct and starting investigations of a New York judge's property holdings,
• as it happened in New York last year to vigorous critic of police misconduct Adam Rupeka, and
• as it happened recently to attorney #PatrickMissud in California who actively criticized judges, up to the Chief Judge of the U.S. Supreme Court John Roberts, and was mysteriously found dead in jail when detained before trial where he was supposed to testify in a case of "criminal threats against a judge"

 - victims of such persecution and their families lack the right of out-of-the-country review, and in-the-country review of such things usually leads to dismissals, if not with sanctions, because nothing that the government (and especially the judiciary) does in the U.S. may be deemed bad.

Russian government at the very least allowed Russian citizens to sue itself in an outside forum, the European Court of Human Rights.

Nevertheless, victories in free speech lawsuits against Russia at the beginning of this month did not prevent, and, very possibly, accelerated what happened to attorney Vitaliy Burkin, as a method of intimidation of all other potential critics of the government in Russia.

In two and a half weeks, Vitaliy Burkin, the "troublemaker", was stripped of his "advocate status" and removed from criminal cases.

By the "Chamber of Advocates", an association of his competitors.

While having done NOTHING WRONG in representation of his clients - and regulation of the legal profession in Russia, as well as in the United States, was introduced on the pretext of protecting consumers of their services.

Apparently, his clients suffered, same as clients suffer in the United States, when their chosen, competent and courageous attorneys, usually independent solo or small-firm criminal defense or civil rights attorneys, are removed for criticism of the judiciary.

And, apparently, same as in the United States, nobody asked Vitaliy Burkin's clients whether they would agree to removal of Vitaliy Burkin from their cases.

Somehow, the decision of who would represent their interests in court was taken out of their hands and given to competitors of their own attorneys, and very possibly, to their opponents in litigation, since - remember? - Vitaliy Burkin, after all, called a tow truck upon a couple of prosecutors, one with the same last name as the Deputy Chief Attorney General of the Republic of Bashkortostan.

"Coincidentally", at the time of persecution of Vitaliy Burkin, lawyer lobby was actively trying to push through the Russian Legislature (the Duma) various types of attorney monopoly - similar to what already exists in Russia, and, similarly to the U.S., without any sunrise review and without any verification with consumers of legal services whose rights such attorney monopoly is claimed to protect, whether consumers want attorneys to guard the chicken coop. 

It is interesting to see the supposedly unrelated interaction of Vitaliy Burkin's case with what is happening in the Duma.

As soon as Vitaliy Burkin was told that he was stripped of attorney status - without actually giving him, according to Vitaliy Burkin, the written decision with reasoning about such an extraordinary punishment - Vitaliy Burkin made a public statement in an interview with journalist Stas Michailov.

In that interview, attorney Burkin, in answer to the journalist's question whether he is going to undertake steps to restore his "advocate status", answered that the "advocate status" does not make much difference in his work since he can still work as a lawyer without being a court criminal defense attorney.

In Russia, attorney monopoly at this time concerns only representation in criminal court, specifically appearances in court, and not consulting, giving legal advice, preparing documents, and representing people in arbitration and civil court proceedings.

But, attorney Burkin may be out of luck in his hopes that he was stripped only of the status of criminal defense court attorney.

According to reports of Russian business newspaper "Kommersant", a new bill in the works - to spread attorney monopoly exactly the same way as it exists in the U.S., to cover all those things that were not (yet) stripped from attorney Burkin.

If that is passed, competitors and the government will have an opportunity to remove independent Russian attorneys not only from criminal cases, but also from arbitration, civil and, especially, from civil rights cases - and prohibit attorneys to so much as peep a legal opinion or give legal advice to people, or draft any documents.

And, the interesting thing is that such a bill appeared after you know who vigorously toiled to teach Russian attorney bureaucracy and judiciary about "the rule of law"? 

The American Bar Association that has a death grip upon attorney monopoly in the United States, notwithstanding the "justice gap" that such an attorney monopoly produces for people.

The ABA, through its "Rule of Law" project and its exceptionally interesting director, Gleb Glinka, husband of the recently (allegedly) deceased Dr. Lisa, who has his own very interesting ties in top tiers of both the U.S. and the Russian government, brought American own corrupt judges to lecture to the Russian judges how to rule the legal profession better, engage in corruption and escape accountability for that, brought Russian judges back to America for tours (I translated in one of them, where judges came from the Astrakhan region). 

In view of the ABA turning a deaf ear and a blind eye to the fate of attorneys who suffered for criticism of the country in the ABA's own country, and in other countries - which is reflected in the ABA's policy of membership to accept only attorneys "in good standing" with their own governments, even if those governments are oppressive dictatorships, and in view of the recent testimony in the U.S. Congress about the ABA's reneging a book offer to a Chinese civil rights attorney, obviously in an effort not to ruffle the feathers of Chinese government and not to jeopardize business prospects of its members in China - the recently concluded "Rule of Law" project of the ABA in Russia was not any kind of charity to sermonize to the supposedly uneducated Russian lawyers and judges what the rule of law is - but a purely business venture.

The ABA was pushing through the American model of attorney regulation in Russia notwithstanding the fact that attorney monopoly enriching politically connected attorneys in the United States, makes the majority of Americans go to court without an attorney or forego their legal rights completely, since, with the minimal pay across the United States under $15 an hour, they are unable to afford a licensed attorney whose hourly rate starts at $200, and, according to comments, is on average now $400 an hour.

At the same time, due to criminal laws pushed through by attorney lobbies in the US, which prohibit "unauthorized practice of law", without clearly defining what the "practice of law" actually is, with severe penalties such as up to 5 years in prison, a criminal felony conviction and stripping of rights of employment and voting rights on conviction, people who cannot afford to pay $400 an hour to a lawyer (actually, much more upfront since most of attorneys require several thousand dollars down as a retainer to start representation in a court case), are forced to proceed without an attorney entirely. 

Thus, attorney regulation as it exists in the US, protects only the rich, who can afford an attorney and who does not need such "protection", and as a result of such "protection" people who do need court representation go without any such representation whatsoever, because their choice of their own court representatives is taken away by the government and by the legal profession.

Hiring a court representative of their own choice from anything but a government-approved lists of licensed attorneys is a crime in the United States, for both the consumer (as a solicitation), and the contractor - which is especially stupid when the very government who restricts consumer choice of court representatives, is the opponent of that same consumer in litigation, in:

• family court social services cases against parents,
• tax foreclosures,
• property forfeiture cases,
• disciplinary proceedings against licensed professionals,
• criminal proceedings, and in 
• civil rights cases where the government is being sued by people for violation of their civil rights.

Apparently, that's the rake towards which the ABA, through its now embedded lobby in Russia, is pushing Russia.

And, attorney Burkin's case - and his instant removal, by a group of competitors, from criminal cases where his clients chosen him to represent them for his competence, skills, courage and independence, without his client's knowledge, notice or consent - is, unfortunately, but likely, only the beginning of the backlash against independent court representatives in Russia.

Apparently, corruption and greed are the best products that the American legal profession can export to Russia.

Nothing like plunging people into the dark ages, all the way asserting lofty causes.

I would very much prefer that Russian consumers of court representation - same as American consumers - wake up finally and make their opinion on the subject of attorney monopoly, and the resulting justice gap, known.

Until then, third parties with special interests will be deciding who and how will represent them in court, where their life (in the U.S.), liberty, property, custody of children (both in the U.S. and in Russia) are concerned.

And attorneys of their choice will continue to be removed from their cases by decisions of those third parties with special interests - like it happened in American cases listed above, like it happened in Russian in the case of attorney Vitaliy Burkin.