What is in common between college football players and attorneys

I was reading an article on unionization of NFL college football players by George Leef, and one phrase really struck me:

"In no other job does a worker's ability to remain on the job depend on a factor having nothing to do with his or her job performance".

That was about football players, and that was about academic performance of those same football players.

I would disagree that "ability to remain on the job depend[s] on a factor having nothing to do with his or her job performance" for college football players - or for any other college athletes.

After all, they are students who were admitted into college on an athletic scholarship, and the scholarship requires them to maintain a certain academic standing to remain students. 

If they drop out of college, not being able to maintain their academic standing, they drop out of the job.

Because, otherwise, if it is simply "a job", it should be a separate job, with hiring and firing process, not a "kind of a job" acquired through application for an athletic scholarship.

Apparently, student athletes are in college to get not only to play football, but also to receive college education, so the phrase about their remaining on the job depends on a factor (academic performance) unrelated to the actual performance on the job is somewhat stretched.

But, what drew my attention to that particular phrase was also that the "no other job" argument seems to be even more incorrect.

Lawyers are yet another such job. 

In this blessed profession, and especially in civil rights litigation, the better you are, the more your are eligible to be kicked out on some contrived disciplinary charge - and the better you dig for evidence of governmental misconduct - like, for example, attorney Christina Mire from Louisiana did - the more you are prone to be kicked out for actions "interfering with proper administration of justice".

Just another paradox of the profession.

And, by the way, while the ABA paid lip service to the fact that attorneys must be entitled to the same 1st Amendment rights as anybody else, and to a right to do their job criticizing a judge in motions to recuse - even though there are hints dropped that attorney Mire's criticism of a judge - who, as I described before in a blog:

1. did not disclose a disqualifying conflict of interest;
2. had the court stenographer fight and even sue Christine Mire in order not to give her minutes from a hearing where such conflict of interest was supposed to be, but was not disclosed;
3. and, when the court did order disclosure of the minutes,
4. the audio file was sent to a professional technician to "splice" (add, glue in) a piece of audio file, and the judge's disclosure of conflict of interest (that Christine Mire who was present at the hearing says was never mentioned by the judge) was put into the audio file and into the minutes.

That was major league fraud on behalf of the judge and everybody who was helping her.

The judge was supposed to be taken off the bench and criminally prosecuted for this.

Yet, the judge was elevated to an appellate court, and, instead, attorney Mire was suspended for a year - and made to pay for "costs" of the fabricated disciplinary proceedings against her, on the shameless complaint of that same judge.  The government made Christine Mire, as a measure of "protection of consumers" (because that's the declared reason for existence of attorney licensing in the first place) to pay around $30,000 for being right when the judge was wrong, exactly as Judge Andrew Napolitano describes in this book:

So, being kicked off the job FOR BEING RIGHT is, same as George Leef says about football players, a "factor having nothing to do with his or her job performance".

In fact, being kicked off the job for doing the job well is counter-intuitive.

And, in this case, illegal.

But who cares, right?

The ABA ran a lip-service piece about Christine Mire's case, ran it only after Christine Mire was reinstated as an attorney.

At the very same time as the ABA ran the piece on Christine Mire's fate, my certiorari on the very same subject - punishment of an attorney for making a motion to recuse a judge while the attorney was right, punishment that is being increasingly imposed on civil rights attorneys and is widening the justice gap in the U.S. - was pending with the U.S. Supreme Court.

Had the U.S. Supreme Court taken the case, it then would have had to decide in my favor - its own precedents were on my side.

But, the ABA did not consider it worth its time to support the certiorari, and the U.S. Supreme Court, including Justice Sonya Sotomayor whose personal statements about the justice gap I quoted in the certiorari petition, refused to review the petition without an explanation.

Instead, the ABA continues to treat wrongfully suspended and disbarred attorneys, suspended and disbarred for being right when the government is wrong as not worthy to be part of the ABA, and that applies to civil rights attorneys subject to persecution by courts within the U.S. and by foreign governments - in other words, the ABA distances from wrongful suspensions and disbarments in order not to put itself into a situation when it has to criticize judges, as a matter of cowardly and self-serving self-preservation.

Because, the ABA's president recently produced a formula in connection with President Trump's criticism of a wrong and corrupt decision of the 9th Circuit and of the underlying district court decision:

to criticize a judge = to attack the U.S. Constitution.

No, we cannot have that.

We cannot "attack the U.S. Constitution" by criticizing those who violate it.

Especially when it can hit us in the pocket - as it is in the case of the ABA.

So, as things are now, since the ABA did not consider it important to support a certiorari about the use of disciplinary proceedings to remove from the reach of consumers a civil rights attorney for doing their job and making a motion to recuse for an indigent client where the case so required - and since the U.S. Supreme Court similarly refused to uphold its own "mandatory" precedent - the country's litigants' rights to impartial judicial review will continue to be illusory and resting upon the unlikely chance that an attorney will sacrifice himself or herself in order to help their client.

I will quote from my certiorari petition:

"Litigants cannot seriously rely upon a federal right that can be secured only by an attorney willing to sacrifice his or her entire investment into his law education and career, and his own and his family's lifetime's well-being for one client".

But that, ladies and gentlemen, is now "the law" in the U.S.

And being good is a "factor" qualifying a lawyer in this country for being deprived of a right to work.

So, college football players are not the only ones whose "ability to remain on the job depends on a factor having nothing to do with his or her job performance".

For lawyers the "law" is even worse.

Here it is, once again:

Louisiana #JudgeLaurieWhite wastes scarce taxpayer funded judicial resources on wielding her fury against supporter of her opponent in judicial elections

In an extremely rare case, in Louisiana, a judge held a prosecutor in contempt of court for texting the judge and requesting the judge to stop badmouthing the prosecutor.

Of course, how many defense attorneys would know the judge's cell phone number to be able to text her, and it is a big issue that the prosecutor in question did know the judge's cell phone number, raising questions of possible longtime ex parte communications of that particular prosecutor's office with this particular judge, and with other judges, requiring, in my opinion, a disciplinary investigation.

Yet, as to contempt proceedings brought against the prosecutor by that particular judge, there were constitutional prohibitions for such a contempt prosecution that the judge, with an admittedly bad temper,

disregarded in holding the prosecutor in contempt.

Despite the clear due process prohibition for the judge to act as a "witness, prosecutor, judge and jury" in a contempt hearing that she had herself brought and that involved an alleged "insult" to herself, despite a most recent prohibition on being n "accuser and an adjudicator" in the same case issued in 2016 by the U.S. Supreme Court in Williams v. Pennsylvania, and where her own misconduct was the reason for the text messages, a misconduct that was brought up in testimony of witnesses other than the prosecutor charged with contempt, Judge Laurie White

still held the prosecutor Jason Napoli in contempt of court for texting her.

That judge White was biased against the prosecution, and against that particular prosecutor, is an understatement of the century.

During Jason Napoli's contempt proceedings instituted by Judge White, a witness testified that the judge made the following unsolicited comments about Jason Napoli to his subordinate, attorney Brian Ebarb, during their very first meeting:

First, a judge who holds such views, has no business presiding over proceedings represented by attorneys she so acutely dislikes, it is called a mandatory disqualification for bias.

Second, a judge has no business using four-letter language in court proceedings, that's another point of immediate disqualification.

Third, a judge has an ethical prohibition against badmouthing an attorney to the face of his subordinate in the attorney's absence, where the badmouthed attorneys have no ability to defend themselves, and where the subordinate attorney is used as a captive audience.

And fourth, but definitely not least problem here is that the judge badmouthed attorney Napoli and Cannizzaro, comparing them to "Satan and Lucifer" after the judge has lost her election campaign to a higher, appellate, court, to a "candidate backed by Cannizzaro", Judge Regina Bartholomew-Woods.

In the election campaign, which reportedly got "ugly" and where both candidates "took their gloves off", according to Judge White herself, Judge Bartholomew-Woods pointed out the following problems with Judge White's candidacy for a higher judicial seat:

So, Judge White's opinion that prosecutors Napoli and Cannizzaro are "Satan", "Lucifer", "a**holes", lazy and stupid could very well be attributable not only to the judge's admittedly bad temper, but to the fact that attorney Cannizzaro supported Judge White's successful opponent to a seat with higher power and salary, and to attorney Cannizzaro's opinion that Judge White is "unfit for the appellate court" - and, by extension, for any other court as well.

Of course, hell hath no fury as a woman scorned, but that woman should not be on the bench wielding her rage in criminal cases.

Apparently, the state of Louisiana is so strapped for cash that

• public defenders refuse to represent felony cases for lack of personnel and time to be able to provide effective assistance of counsel, and are sued for it,
• and courts, as an escape from the situation, assign any attorney with a pulse and a license, even without any knowledge of criminal law, to represent criminal defendants, in order to satisfy the U.S. Supreme Court's mandate for EFFECTIVE legal representation of the indigent in criminal proceedings - Gideon v Wainright.

Yet, the same State of Louisiana has enough money to allow its criminal judge Laurie White, who admitted to her bad temperament, but was not removed from the bench at the time of her admission, to continue to waste taxpayers' money by instituting and prosecuting a frivolous contempt proceeding against an attorney she hates for personal reasons.

I wonder if the Louisiana judicial disciplinary authorities will have a say against Judge Laurie White - or, whether, like they did in the case of #attorneyChristineMire who exposed egregious misconduct of #JudgePhyllisKeaty (see my blogs about Christine Mire's case as it developed, here, here, here, and here), instead, the attorney disciplinary system will be used against prosecutor Napoli to further retaliate against him for daring to raise the issue of judicial misconduct .

Prosecutor Napoli, once again, raised Judge White's misconduct improperly, in a text message to the judge.

He was supposed to do that in a motion to recuse.

Yet, because attorneys in the State of Louisiana were intimidated against daring to make motions to recuse, even with irrefutable evidence of judicial misconduct in hand, given the recent fate of attorney Christine Mire who was suspended from the practice of law and made to pay tens of thousands of dollars for being prosecuted for seeking for her client a constitutional right for impartial judicial review, after making a proper motion to recuse (while Judge Phyllis Keaty was promoted to an appellate court), who can blame attorney Napoli for seeking more discreet ways to point the judge's misconduct to the judge?

And once again, a question - will Judge Laurie White be investigated and disciplined for her misconduct in this case?

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.

On competence of criminal defense for the indigent

In Wisconsin, an assistant public defender was removed from a criminal case - a first degree murder case - for incompetence.

The trial was scheduled to begin on October 10, 2016, so all pretrial discovery and motions should have been done by this time.

At the pretrial hearing judge Ellen Bertz

grilled the privately hired defense attorney Sarah Clemment on elementary concepts of criminal law, and, reportedly, she could not give coherent answers.

The defendant Dennis Hassel is African American.

And indigent, since the case is now handled by the public defender's office.  The private attorney the judge disqualified as incompetent has been hired by the defendant using his sister's cashed-in retirement fund.

The disqualified defense attorney is, reportedly, a solo immigration attorney who complained that she did not get to see her clients because he was housed in prison far away from her.

Which, apparently, did not prevent Sarah Clemment from taking the retainer - a considerable retainer, I am sure, for representation in a 1st degree murder case.

Even though Wisconsin does not have the death penalty, a conviction for 1st degree murder carries a life sentence in the state, so the stakes are very high and require competence and diligence from a defense attorney.

Yet, while the private defense attorney was disqualified on the even of trial, and now the Public Defender's Office will have to assign a new attorney, the quality of that attorney is not guaranteed.  Whenever criminal defendants ask to assign a specific, competent, attorney, they usually are rebuffed by courts stating that their constitutional "right to counsel" under Gideon v Wainright does not include the right to choose that counsel - and a lawyer that is assigned may be no better than the one that was disqualified.

The State Public Defender's office may either provide an attorney working for the state, or, assign a private attorney, which reportedly happens in 40% of all criminal cases in Wisconsin.

Such an attorney is paid $40.00 per hour for work and $25.00 per hour for travel, the lowest reimbursement rate for criminal defense for the poor in the U.S.

For comparison, in the recent case of a temper tantrum by federal judge Nicholas Garaufis, who called it "insulting" when an associate and not partner was sent to a court conference, FIVE partners showed up to the "kiss-ass-and-make-up" conference, one of whom reportedly flew to New York City from California.  Those partners were reportedly charging at $3,000 per hour, each, at the total amount of $15,000 per hour.

That was a civil case, not a case with the stakes of a life prison sentence.

Moreover, while an assigned attorney is paid in Wisconsin $40.00 per hour of work and $25.00 per hour of travel, the cost of maintaining a private law office in the country back in 2008 (8 years ago) was already assessed at $160,000 per attorney per year, making existence of solo attorneys practically impossible.

Assigned criminal defense attorneys in Wisconsin are right in claiming that by accepting assignments of $40.00 per hour, they are subsidizing prosecution of their clients - with full funding of the prosecutor's office.

As a comparison, in non-capital federal cases, reimbursement of criminal defense attorneys for the poor is at $129 an hour, but even then, there are caps in reimbursement of assigned criminal defenders, while, naturally, there are no caps in reimbursement of salaried prosecutors, while a criminal case can last for years and require a lot more hours than the cap allows.  I will explain about caps in assigned cases in a separate blog.


With compensation rates in Wisconsin at $40.00 per hour for work and $25.00 per hour for travel, the highest-caliber criminal defense attorneys will not accept such payment rates, since such payment rates will not allow to maintain a law office or to survive, and one can imagine who represents the poor in criminal cases in Wisconsin.

Moreover, for a 1st degree murder case, and especially where the defendant is housed 134 miles from the courthouse:

housing a criminal defendant within 5 hours roundtrip from the courthouse - when the criminal defendant had a private attorney - is nothing short of deliberate.

While I will not question at this time whether private defense attorney Sarah Clemment was or was not incompetent - I have to go on the press report, and judging by the press report, she did not know answers to elementary questions of criminal defense, but I also know how such reports can be falsified - her claims that the defendant was too far away are legitimate.

I do not know how much the attorney was paid - but 5 hour roundtrips (and that's not counting the time of clearance through the prison security and time spent with the client) put a drain upon a private criminal defense attorney's time, and upon the defendant's retainer.

I wonder whether the criminal defendant was kept so far away from the courthouse to inconvenience his criminal defense counsel and make it difficult for her to present an effective defense.

After the allegedly incompetent criminal defense lawyer was disqualified by the judge on the eve of trial, I wonder who will be assigned in this case, and, if the assigned attorney is a privately assigned attorney, reimbursed at $40.00 per hour for work and $25.00 for travel, how much will it rectify the situation - or was all of this disqualification and assignment for show, so that the conviction would not be reversed for ineffective representation of counsel.

Salaries among attorneys employed directly by the Wisconsin Public Defender's office show a wide range of qualifications:

Defendant Dennis Hassel does not get to choose whether he will be represented by a $32K per year attorney or by a $98K per year attorney.

The situation has recently come to a head in the State of Louisiana where the State Public Defender's office announced the so-called "austerity plan", turning away cases because public defenders were overworked, underfunded and could not, under the circumstances, provide effective representation constitutionally required in criminal cases.

I will remind you, that is the same blessed State of Louisiana that could afford to spend money on disciplinary proceedings of two qualified family court and criminal defense attorneys, not even allowing them to work for the poor at a reduced rate - because they criticized Louisiana judges, which has nothing to do with the purpose of attorney regulation, to protect consumers of legal services.  I am talking about attorneys Nanine McCool and Christine Mire.

I must also note that there are no claims anywhere in the State of Louisiana - or elsewhere in this country - that a prosecutor's office is strapped for funds.  Prosecutors get what they need.

After the Louisiana Public Defenders' Office implemented its "austerity plan" and started to turn away cases of indigent criminal defendants, ACLU filed a federal lawsuit against the Public Defender's Office.  The lawsuit alleges that, because of lack of representation, charged criminal defendants must languish in jail indefinitely - at public expense, I must note, and losing their jobs because of absence - which is an additional constitutional violation.  Keeping people in jail because they do not have money for bail, cannot afford a lawyer and where the state cannot provide them with a lawyer, is despicable.

Because of the "austerity plan", courts in Louisiana started to FORCE assignments upon lawyers - thus causing lawyers to claim, correctly, that they are subjected to forced labor and taking their property (their time) without due process of law.

While some attorneys "grudgingly agree" to represent indigent criminal defendants at confiscatory rates of reimbursement that does not allow attorneys to cover the costs of running their offices, ($160,000 per attorney per year), and agree only not to cause trouble with judges, there are a lot of ways in criminal defense to cut corners - such as, not do proper investigations, discovery, motions, responses to motions, not to prepare properly for hearings and trials, not to visit clients in far-away correctional facilities and not answer their collect calls from jail - that will make such forced representation not only useless for the client, but of negative value, since the client will harbor an illusion of representation while the forced-labor attorney will do only enough to avoid a disciplinary prosecution.

By the way, in many states, a criminal defendant may not sue his criminal defense attorney for malpractice, even if such malpractice brought about the conviction - unless such conviction is overturned, and good luck with that, and discipline against criminal defense attorneys for not doing their jobs properly is notoriously low.  One can expect discipline against a criminal defense attorneys more if he does do his job and criticize a judge as part of that job.

Forced labor was never effective, and legal scholars agree that forcing attorneys into "pro bono" work - or work pro bono-like compensation rates - will not resolve the "justice gap" crisis, but may make it worse, for services provided under the forced labor mandate will be far from prime quality.

At present, in Louisiana the crisis of criminal defense for the indigent came to the point of the state - that regulates attorneys under the guise of protecting consumers from incompetent attorneys - orders incompetent representation in criminal cases against the indigent by assigning to criminal cases attorneys who know nothing about criminal defense, insurance or real estate attorneys.

Attorneys not qualified in criminal defense and who are forcibly assigned to criminal defense cases say that it is like "asking a dentist to do a heart surgery".

Yes, it is.

And, fast backward to the case at the beginning of this blog - Louisiana is doing exactly what Wisconsin just disqualified an attorney for, lack of specialized knowledge necessary to represent a client in a criminal defense case.

In Wisconsin it is a point of disqualification - even though there is no alternative.

In Louisiana it is a mandate of the time.

And, even though the U.S. Supreme Court has ruled long time ago, in 1969, that states have no right to enforce attorney regulation rules (and criminal unauthorized practice of law laws) in situations where states cannot provide adequate legal representation of the poor and the illiterate - attorney regulation in Wisconsin and Louisiana is alive and well, and the states of Wisconsin and Louisiana will prosecute criminally those who, without law licenses, attempt to HELP indigent criminal defendant who sit in jail awaiting a lawyer that the state claims it cannot pay for.

Now, I have a question.

We have just had three judges in three different states undergoing disciplinary proceedings for disobeying the same sex marriage precedent of the U.S. Supreme Court.

What about liability of the state to its citizens - and to criminal defendants - for disregarding TWO precedents of the U.S. Supreme Court:

Gideon v Wainright, requiring the states, since 1963, to provide a qualified "counsel" (not necessarily a licensed attorney) at every meaningful stage of criminal litigation, and

Johnson v Avery, barring the states, since 1969, from prohibiting lay individuals, not licensed attorneys, from providing legal services to the poor when the states do not have money to provide necessary services of licensed attorneys.

Will states claim "sovereign immunity" now? 

Where is the legal remedy for the massive deprivation of right to counsel in criminal proceedings across this country?

Some statistics about attorneys punished for criticizing judges

Another researcher and I looked at statistics of attorney discipline-for-criticism provided in the 2008 law review article of Professor Margaret Tarkington "The Truth Be Damned: the 1st Amendment, Attorney Speech and Judicial Reputation.

Here is some statistics we derived from cases referenced in that article (footnotes 39, 239-270).  Prof. Tarkington lists 48 cases from 28 states (if we did not miss anything):

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

Research of this kind is difficult because such cases may no be published, or, if published, may not reflect that the attorney was punished for criticism of judges.

For example, my own order of suspension does mention that I was suspended - without a hearing - based on sanctions imposed upon me by an unnamed judge for unspecified "frivolous conduct".  Yet, the "frivolous conduct" in question was making motions to recuse that same judge.

Similarly, attorneys Wolfgram (California), Doris Sassower (New York) and David Roosa (New York), cases highlighted in yellow, were suspended for "mental incapacity", while very capably representing clients and very capably criticizing judicial misconduct.  Attorney Wolfgram was actually a dedicated philosopher of the law, and a brilliant and very effective attorney whose "fault" was that he wanted to stick to his constitutional oath of office and insisted on application of the U.S. Constitution the way it was written, not as it was interpreted by judges - and that was the point of his alleged "mental incapacity".

I combined the two lists - Prof. Tarkington (48 cases) and mine (33 cases), and here is the combined aggregate list of states, number of disciplinary cases against attorneys for criticism of judges, and years when that discipline occurred

Here is an interesting aggregate list of Prof. Tarkington's and my own statistics:

Year	No of Cases	Years from the previous year of discipline for criticism of judges	States where discipline occurred	States where discipline for criticism occurred more than once in one year
2016	3	1	3
2015	7	1	6 New York
2014	7	1	7
2013	3	2	3
2011	2	1	2
2010	1	1	1
2009	2	1	2
2008	2	1	1	New York
2007	6	1	5	Utah
2006	3	1	3
2005	2	4	2
2001	2	2	2
1999	1	3	1
1996	3	2	3
1995	1	1	1
1994	2	1	2 Indiana
1993	3	2	3
1991	4	1	3	New York
1990	1	1	1
1989	2	1	2
1988	1	2	1
1986	1	3	1
1983	2	3	2
1980	4	1	3	Kentucky
1979	1	3	1
1976	1	3	1
1973	1	2	1
1971	1	5	1
1966	1	2	1
1964	1	19
1945	1	11
1934	1	4
1930	1	19
1911	1	34
1877	1

The above table was constructed this way:

The last column on the right lists all years in which discipline was reported as applied to attorneys in the U.S. for criticism of judges.

The next column lists the number of cases in each reported year.

The next column lists the time that passed from the last year when discipline-for-criticism was reported.

The next column lists the number of states where discipline occurred in every given year.  If the number of states administering discipline for criticism of judges in a given year is less than the number of disciplinary cases, for example, if there are 4 cases of discipline reported from 3 states, that means that one state imposed discipline twice - and that state is listed in the next column.

Below is the aggregate list combining Prof. Tarkington's and my own statistics of attorney discipline for criticism.

Kansas	1877
California	1911
New Jersey	1930
California	1934
Wyoming	1945
Iowa	1964
New Mexico	1966
Nevada	1971
Florida	1973
Iowa	1976
South Dakota	1979
California	1980
Iowa	1980
Kentucky	1980
Kentucky (another)	1980
Louisiana	1983
Tennessee	1983
Maryland	1986
New York	1988
Tennessee	1989
California	1989
Minnesota	1990
Missouri	1991
New York	1991
West Virginia	1991
New York	1991
California	1993
Indiana	1993
Washington	1993
Indiana	1994
Indiana	1994
California	1995
Idaho	1996
Iowa	1996
Kentucky	1996
Indiana	1999
Delaware	2000
Florida	2001
Indiana	2001
Indiana	2002
Kansas	2002
Ohio	2003
Washington	2003
Louisiana	2005
Massachusetts	2005
Michigan	2006
Minnesota	2006
Massachusetts	2006
Pennsylvania	2006
Arkansas	2007
Delaware	2007
Kansas	2007
Utah	2007
Utah	2007
Indiana	2007
New York	2008
New York	2008
California	2009
Florida	2009
Pennsylvania	2010
Illinois	2011
New York	2011
Florida	2013
New York	2013
Pennsylvania	2013
Connecticut	2014
Illinois	2014
Indiana	2014
Maryland	2014
Minnesota	2014
Washington	2014
West Virginia	2014
Florida	2015
Illinois	2015
Louisiana	2015
New York	2015
Pennsylvania	2015
Rhode Island	2015
Texas	2015
Georgia	2016
Louisiana	2016
Texas	2016

The list shows increasing number and frequency of discipline imposed upon attorneys for criticism of judges at present, such cases are now reported every year, and more than one in a year.

The statistics is quite disheartening, to say the least.

While judges create all kinds of decisions about prohibition on "content-based", "viewpoint-based" and "subject matter-based" regulation of speech based on its contents without "strict scrutiny", when it comes to criticism of those who preside over court cases, that same law suddenly stop applying to them, and they punish attorneys left and right - by loss of livelihood no less - for criticizing judges.

Are judges now gods who can do no wrong?

In the quote from 136 ago on top of this blog, Pennsylvania Supreme Court Justice Sharwood said:

“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).

So, it was "too monstrous" to even consider the idea of punishing an attorney for doing his work, reporting judicial misconduct out of court, or challenging it in court pleadings, to secure federal constitutional right for impartial judicial review for clients.

As the aggregate table shows, the time between years when such discipline is imposed upon attorneys shrinks.  While in the last century there was only one reported case, and in this century, until about mid-sixties, when civil rights litigation started to pick up, such disciplinary cases were few and far between.

Yet, after mid-sixties, such cases surged, and now in 2014 and 2015 we have 7 reported cases in each year.

Here is the aggregate list of states, sorted alphabetically, where discipline for attorneys for criticism of judges was imposed, listing number of cases and years where discipline was imposed:

Arkansas	1	2007
California	7	1911, 1934, 1980, 1989, 1993, 1995, 2009
Connecticut	1	2014
Delaware	2	2000, 2007
Florida	5	1973, 2001, 2009, 2013, 2015
Georgia	1	2016
Idaho	1	1996
Illinois	3	2011, 2014, 2015
Indiana	8	1993, 1994, 1994, 1999, 2001, 2002, 2007, 2014
Iowa	4	1964, 1976,  1980, 1996
Kansas	3	1877, 2002, 2007
Kentucky	3	1980, 1980, 1996
Louisiana	4	1983, 2005, 2015, 2016
Maryland	2	1986, 2014
Massachusetts	2	2005, 2006
Michigan	1	2006
Minnesota	3	1990, 2006, 2014
Missouri	1	1991
Nevada	1	1971
New Jersey	1	1930
New Mexico	1	1966
New York	9	1988, 1991, 1991, 2008, 2008, 2011, 2013, 2015, 2015
Ohio	1	2003
Pennsylvania	4	2006, 2010, 2013, 2015
Rhode Island	1	2015
South Dakota	1	1979
Tennessee	2	1983, 1989
Texas	2	2015, 2016
Utah	2	2007, 2007
Washington	3	1993, 2003, 2014
West Virginia	2	1991, 2014
Wyoming	1	1945

Here is the same list sorted by number of cases of known disciplined imposed on attorneys for criticism of judges at all times (again, I think that such cases are grossly underreported, including by obscuring discipline for criticism with some vague general statements like "frivolous conduct", or "conduct prejudicial to administration of justice" or such like):

New York	9	1988, 1991, 1991, 2008, 2008, 2011, 2013, 2015, 2015
Indiana	8	1993, 1994, 1994, 1999, 2001, 2002, 2007, 2014
California	7	1911, 1934, 1980, 1989, 1993, 1995, 2009
Florida	5	1973, 2001, 2009, 2013, 2015
Iowa	4	1964, 1976,  1980, 1996
Louisiana	4	1983, 2005, 2015, 2016
Pennsylvania	4	2006, 2010, 2013, 2015
Illinois	3	2011, 2014, 2015
Kansas	3	1877, 2002, 2007
Kentucky	3	1980, 1980, 1996
Minnesota	3	1990, 2006, 2014
Washington	3	1993, 2003, 2014
Delaware	2	2000, 2007
Maryland	2	1986, 2014
Massachusets	2	2005, 2006
Tennessee	2	1983, 1989
Texas	2	2015, 2016
Utah	2	2007, 2007
West Virginia	2	1991, 2014
Arkansas	1	2007
Connecticut	1	2014
Georgia	1	2016
Idaho	1	1996
Michigan	1	2006
Missouri	1	1991
Nevada	1	1971
New Jersey	1	1930
New Mexico	1	1966
Ohio	1	2003
Rhode Island	1	2015
South Dakota	1	1979
Wyoming	1	1945

9 cases - New York

The absolute leader in using attorney discipline as a tool of retaliation for criticism of judges - when judges are the regulatory authorities controlling those licenses - is New York, with 9 such known cases decided between 1988 and 2015.



New York also distinguished itself in imposing such retaliatory discipline on attorneys twice in one year three times - in 1991, 2008 and 2015, and for taking licenses of two spousal couples of attorneys for criticism of judicial misconduct and corruption -

• George and Doris Sassower (husband disbarred in 1988, wife suspended in 1991) and
• Frederick and Tatiana Neroni (husband disbarred in 2011, wife suspended in 2015),

where, following an apparent pattern, husbands were disbarred first, and then wives were suspended within 3 (the Sassowers) and 4 (the Neronis) years when they did not fade away on their own (as they were obviously expected) after the disbarment of their husband.

New York is the only state I know who retaliated against spousal couples of attorneys, seeking to destroy the entire family's ability to earn a living, not of just one spouse of two.

8 cases - Indiana

The runner-up in this shameful statistic is Indiana.  8 cases of discipline against attorneys for criticism of judges.

So:

• 9 cases - New York;
• 8 cases - Indiana;
• 7 cases - California;
• 5 cases - Florida;
• 4 cases - 3 states: Iowa, Louisiana, Pennsylvania
• 3 cases - 5 states: Illinois, Kansas, Kentucky, Minnesota, Washington;
• 2 cases - 7 states: Delaware, Maryland, Massachusetts, Texas, Tennessee, Utah, West Virginia;
• 1 case - 13 states: Arkansas, Connecticut, Georgia, Idaho, Michigan, Missouri, Nevada, New Jersey, New Mexico, Ohio, Rhode Island, South Dakota, Wyoming

I realize, of course, that cases with most discipline happened also in states with most population, but a punished attorney ratio per head of population is not a good justification for such punishment at all.

I ask my readers to consider one thing:  while it is becoming increasingly difficult in America to even find an attorney who would dare to criticize a judge in a motion to recuse or out of court - such people are not extinct yet.  They existed in the 19th century (the first reported case in Professor Tarkington's study) and they continue to exist until now, when in 2016 several attorneys were disciplined for criticism of the judiciary:

• Christine Mire in Louisiana - suspended for making a motion to recuse
• Russet Stookey in Georgia - who was arrested, charged with a felony and thrown in jail in July of 2016 (charges then dropped "at this time" after an outrage in the mainstream and social media) for his access-to-public records request, because the public records he sought were too sensitive and could expose judicial misconduct, theft from a court operating account 

Consider also the fate of two female public defenders who, even though were not punished for criticizing judges - therefore I did not include them into these statistics - were both handcuffed for defending their indigent clients, criminal defendants:

• Zohra Bakhtary in Nevada in 2016 - who was handcuffed for trying to make a record and make constitutional argument on behalf of her indigent client opposing his incarceration, and
• Jami Tillotson in California in 2015 - Ms. Tillotson was handcuffed for doing her job, telling the police that she objects against the police talking to her represented clients.

It is amazing that people like Zohra Bakhtary and Jami Tillotson, who are ready to go to jail, if necessary, for their clients who are not their friends or family members - just their clients, indigent defenders for whom these young women were the last possible resort to protect their rights.

Consider also the culture of general public disdain to attorneys that causes perception that if attorneys are punished, they are punished because they are "all scum" - and "good riddance".

Recently, a federal judge who was in the past a public defender (and a good, courageous one), was passed over by President Obama for nomination to the U.S. Supreme Court - because of badmouthing in the press specifically because she was a public defender.

Consider that Hillary Clinton was badmouthed for what she did as an assigned criminal defense attorney.  I am not a fan of hers, and believe that NOW she should be criminally charged and go to jail for her e-mail shenanigans.

If a criminal defense, family court or civil rights attorney disciplined in any way, and especially suspended or disbarred, in the public opinion such an attorney is usually banded with the worst in the legal profession, and there are a lot of "good riddance" comments usually when such news come out.

Yet, the "good riddance" of attorneys like Christine Mire, Doris Sassower, Robert Grundstein, Don Bailey and other attorneys I mentioned above, and those other attorneys whose names I mentioned only in numbers of cases - has led to the state we have now: when attorneys in general are so intimidated by the chance that their entire lifetime of investment, efforts of pulling themselves through the extremely hard and expensive law school studies and bar exams may evaporate in a second if attorneys just say a couple of words in criticism of a judge on behalf of a client - even if the judge richly deserves that, and more.

Until the public starts to protect their civil rights, family court and criminal defense attorneys from retaliation through loss of livelihood,

until the public, the ultimate consumer of legal services starts to raise its voice clearly and strongly, to their legislative representative, through grass roots movements, in their blogs and on social media -

that they want independent representation in court, and

that they oppose the use of attorney licensing to TAKE AWAY the BEST and SKILLED and COURAGEOUS attorneys from their reach -

the "justice gap" we have now, when people either cannot afford and attorney, or cannot find an attorney who would not be afraid to take this or that "sensitive" case or to raise a "sensitive" issue within a case,

will continue forever, and get only worse.