Saturday, July 05, 2008

Woe Unto You, Lawyers! and Judges

Our system of justice may be the least "corrupt" among all nations - that is, corruption defined as deliberately engaging in illegal activity; however, our system's level of intrinsic legalized corruption is high.

The complexity of the US federal system, including the legalese and the vast number of courts, prosecutors and regulators at state and federal levels; the exclusion of attorneys from the market; absolute judicial immunity (although necessary insofar as allowing judges to adjudicate matters without fear of retribution, many times it give judges absolute power as well and we know what absolute power does); the collusion present in the profession, especially visible in family law due to "no fault" divorce; and the infinite number of traps deliberately built into our system to ensnare the ordinary citizen or anyone without a law degree all contribute to the betrayal of public trust in our courtrooms.

It's almost impossible to find justice without an attorney, yet, increasingly, it's becoming harder and harder to trust that attorneys will work on our behalf. There is no corruption in the process of becoming an attorney, as even JFK Jr had great difficulty. He flunked the bar more than once...not that JFK Jr was the epitome of intelligence, however it does prove political connections alone are not enough to add the "Esquire" at the end of your name.

Here's where the "corruption" begins: After passing the bar, and on the road to making a name for themselves, lawyers realize they are inoculated against facing consequences of their dishonest or illegal actions, in other words, immune. Out of 121,000 complaints filed against lawyers and investigated by the Bar Association, according to the American Bar Association, only 1% of these complaints led to disbarment and only 3.5 percent led to formal discipline...the remaining 96.5% complaints were classified as unfounded or only received private sanctions or warnings. That's right...the attorney you hire and shell out over $300/hour too, in most cases, can pretty much do as he or she pleases without the fear of any adverse effects befalling them.

• A 2006 American Bar Association survey found that out of 123,927 complaints, only 3.5 percent led to formal discipline and less than one percent resulted in disbarment.

• Of these 123,927 complaints, 92 percent led to no discipline or only informal slaps on the wrist in the form of “private sanctions.”

• According to a 2002 HALT study, in 50 states (including the District of Columbia),
lawyers make up at least two-thirds of the committee adjudicating attorney discipline complaints.
Then, here comes the judge. He dresses differently, sits above everyone else, and is the only one who can address the court at will. “You’re Honor.” If it pleases the court.” Everyone must stand when he comes in. All these gestures of obeisance in addition to judicial infallibility due to his immune status, makes the judge the closest thing to God.

How can they help but internalize this sense of power? Who needs reflection, introspection or perspective when you're God? Unfortunately, many judges lose the ability to be honest about who they are, fail to reflect on their decisions and lose the perspective necessary to account for their own bias, experiences and preference, all crucial to making fair judgments. Their unchecked judicial authority ultimately transforms a good percentage of them from one who follows the rule of law, to one who becomes the law, the opposite of what our forefathers intended.
We don’t have the last word because we’re infallible but we are infallible because we have the last word. – The late Justice Jackson
It wasn't always this way. Originally, lawyers in America were educated in William Blackstone who based the legitimacy of law in the inherent equality of man and very definite immutable and fixed moral principles based on the inalienable rights of man, rights that by their very nature cannot be taken away or violated.

After 1900 lawyers began attending law schools that ignored Blackstone and taught legal theory based primarily on case precedent. Judicial decisions started to trump moral principles and the inalienable rights of man. Judges became godlike and our legal system has evolved based on the arbitrary opinions of a few rather elitist men instead of a morality based on the fact that human beings have inherent rights which no ruler can question or alter.
"The integrity of law, its religious roots, its transcendent quality are disappearing...The first 100 years of American lawyers were trained on Blackstone, who wrote that: 'The law of nature, dictated by God himself,is binding in all counties and at all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all force and all their authority from this original. 'The Framers created a government of limited power with this understanding of the rule of law - that it was dependent on transcendent religious obligation." -- Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, addressing the Federalist Society of Harvard Law School
Should we turn back the clock a few centuries and teach Blackstone, forgetting the contributions of all the other Jurists past, present and those to come? No. Rather we should never forget the great principles of law Blackstone set forth as the foundation of our system of justice. The bottom line is "power corrupts and absolute power corrupts absolutely" and it underlies, and is the reason corruption has infiltrated and spread so thoroughly through our justice system.

Links:

Help Abolish Legal Tyranny (HALT) Dedicated to providing simple, affordable, accountable justice for all, HALT's Reform Projects challenge the legal establishment to improve access and reduce costs in our civil justice system at both the state and federal levels.

American Legal Ethics Library offers many state rules, codes, ethics opinions, and narratives drafted for the American Legal Ethics Library.

American Judicature Society The Center for Judicial Ethics of the American Judicature Society acts as a clearinghouse for information about judicial ethics and discipline.

The Association of Professonal Responsibility Lawyers (APRL), an independent national organization of lawyers concentrating in the fields of professional responsibility and legal ethics.

The National Client Protection Organization, Inc.(NCPO) Include providing help and support to protection funds and programs to protect legal consumers from dishonest conduct in the practice of law.

National Council of Lawyer Disciplinary Boards, Inc. Serves as a national forum for the exchange of information and ideas about the administration, conduct and improvement of formal disciplinary and related proceedings for lawyers admitted to practice law in or more jurisdictions of the United States.

Judicial Family Institute national organization dedicated to providing information and education on topics of concern and importance to judicial family members.

National Organization of Bar Counsel is a non-profit organization of legal professionals whose members enforce ethics rules that regulate the professional conduct of lawyers who practice law in the United States, Canada and Australia.

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