Anyone familiar the American Bar Association (ABA) Model Rules of Professional Conduct that has been universally adopted by the states as state supreme court rules would find little to argue with. They are quiet well defined and if followed would end the popular public perception of attorneys aptly expressed by Fred Reed:
“Lawyers lounge under the lampposts of jurisprudence, in the moral equivalent of plastic miniskirts and fishnet stockings, breathing, “Oh, ba-a-a-aybee, I’ll do anything for $250 an hour.”
The problem is that the rules of professional conduct are all but ignored by the legal profession including the judiciary that is ethically required to police attorneys and other judges. Policing unethical conduct is all but impossible and there is no financial profit in attorneys suing or prosecuting each other.
Supreme court rules require the trial of unethical behavior by attorneys by the state supreme court en banc. If the rules were enforced, the state supreme court would be doing nothing but hearing ethics violations. Little wonder that misrepresenting material facts with immunity is the stock and trade of attorneys. Public trial by a jury is just as appropriate for attorneys as any other criminal behavior.
Only when the unethical behavior receives media attention such as in the Duke Lacrosse prosecution by Mike Nifong is such unethical behavior effectively prosecuted. The ABA motto of “defending liberty and pursuing justice†has become little more than a public joke. The ABA is dedicated to nothing less than making work for its members by building on the law they make for themselves referred to as “case law†which is sufficient to fill a huge library and sufficiently contradictory to support any possible outcome. The most fundamental documents and the basis of law modern law such as the Magna Carta and the United States Constitution are ignored by the highest courts on a daily basis.
“To none will we sell, to none deny or delay, right or justice.†– Magna Carta, Clause 40, 1215
Clauses 36, 38, 39 and 40 collectively defined the right of Habeas Corpus that remains to this day. Unfortunately, Clause 54 that says that “no man may be imprisoned on the testimony of a woman except on the death of her husband†has not found equal longevity.
“Justice†is sold daily by unethical attorneys motivated by nothing other than personal greed. Millions have learned how much “justice†they receive in family court when they fail to pay their attorney or the court appointed guardian ad litem. I recently witnessed a court appointed guardian ad litem attempt to extort her retainer from a parent. She threaten that parent would loose custody if she were not paid. The mother couldn’t pay and lost custody. When brought to the attention of the judge, he ignored the unethical behavior and awarded the guardian ad litem $3,200 for her efforts.
The late law professor Edmund Morgan often stated: “There is no proposition so absurd but that some judge, sitting on some bench, has at some time solemnly proclaimed it to be the law.†In addition, the words of Federal Judge William J. Campbell at a Chicago judicial conference are instructive: “guilt or innocence no longer has much to do with justice, since legal technicalities take precedence in court procedure.â€Â
Although lawyers exploit many types of situations, domestic relations may be where they sin most. Easy fees draw lawyers to divorce like sharks to blood. It’s the same reason Willie Sutton said he robbed banks: “That‘s where the money is.†Bleeding people that care about their children is the name of the game. The divorce industry is a cash cow, comprising some 35% of civil litigation. But is that the end of the scam? I suggest that it is merely the tip of the iceberg with family law orders commonly written specifically to promoting more litigation and the resulting injustice simply motivates criminal behavior.
Someone must ask how many men unjustly treated in family court lose faith in our system of government and become anarchist engaging in all forms of criminal acts. Clearly if an attorney devoid of ethics can make money promoting family court injustice, why would they not see the advantage of making more work for prosecutors and defense attorneys? Our civilization is dependent on justice administered by ethical and righteous attorneys and judges.
The public must exercise control over the public servants that compose the judicial branch of our government, yet no such control exist. The judicial branch has done an excellent job of making its own rules prohibiting pubic scrutiny. Election of the judiciary or votes for retention after appointment offer no protection as the judicial acts are almost completely outside public scrutiny. The public only sees through the media what the court chooses to reveal. As long as the public perceives the courts as achieving the politically correct result, no one questions the legality of what goes on behind closed doors.
I checked the election results for judicial retention in the Kansas Tenth District about a decade ago and found that roughly twenty percent of the public voted to retain none and eighty percent voted to retain all sitting judges. The difference between the judges was less than three percent. The public has absolutely no rational way to judge the judges.
In that group of judges voted for retention were two that I had personal experience with. One was the best judge I have ever experienced and the other was the worst. The worst was quietly removed (forced to take early retirement without media attention) after twenty years on the bench acting as assistant prosecutor. I personally filed an ethics complaint against him. No attorney or any of his judicial peers had the guts to file a complaint against this judge. When I ask a public defender about how many of their clients got a fair trial before this judge, they responded, “NONEâ€Â.
His legal errs provide numerous attorneys the opportunity to make tens of thousands appealing his rulings. To this day, Kansas Congressman Dennis Moore brags at each election that when he was the county prosecutor in the Kansas Tenth District, he never lost a jury trial. It’s not too difficult when you can choose the judge hearing a given case and have a judge that believes he is an assistant prosecutor. Does anyone believe everyone District Attorney Moore charged with a crime was guilty?
How does the public regain some control over a self-serving and unethical profession?
The only way is to bring public awareness and media attention to the corruption is though cases such as the Duke Lacrosse Case. Far to many innocent without the financial resources of the Duke Students become victims of unethical prosecution. A little public media attention of the legal corruption will bring about legislation that will insure public prosecution and tiral of unethical attorneys and judges.
The Missouri Chief Disciplinary Counsel, Alan D. Pratzel, stated in a recent phone call that the judicial branch of government is “self policing†and outside the jurisdiction of other branches of state government. I pointed to the Duke Lacrosse Case where prosecution of Mike Nifong for ethics violations was very public by the Attorney General, a member of the executive branch of government, making clear that his legal argument didn’t hold water.
Nothing could be a more viable issue in the highly political campaign for state attorney general than prosecuting illegal attorney and judicial behavior. An attorney general opposed to enforcing legal ethics would never be elected. Making legal ethics a political issue will solve many of society’s greatest problems.
As the highest law enforcement officer of the state, the attorney general must be held accountable for enforcement of legal ethics. If the judicial branch wants to argue the point, the state legislature is free to enact legislation codifying the ABA Model Rules of Ethical Conduct as criminal statute law.
