Wednesday, June 1, 2016

Lawyers shall not engage in conduct that is prejudicial to the administration of justice

There are two high sounding, phrases that stand as sentinels guarding the probity of the adjudicative process. We are told that lawyers must:

… avoid conduct that undermines the integrity of the adjudicative process….

And

…. not engage in conduct that is prejudicial to the administration of justice….

For the public there is a problem in translating what these phrases mean. Specifically, how much are these ideas a matter of opinion, and what are examples of a lawyer's activities that might "prejudice the administration of justice" or undermine "the integrity of the adjudicative process".

Some components of these 'dicta' are obvious even to casual readers. No one would argue that it is a bad thing to try bribing a judge, to present false evidence in court, to lie or to encourage a client to lie, or to doctor evidence "etc. Less obvious to the public is that the erstwhile professional sins of "moral turpitude" are mostly thrown out. The legal profession seems to view the notion of sleazy behavior, or "turpitude" as old fashioned and poorly reflective of the diverse values of a diverse, multicultural society. There are also more nebulous concepts having to do with how vigorously a lawyer may represent a client. How "vigorous" is "too vigorous"? We'd ask, in addition, how does one measure "not vigorous enough"?  From what we read - apart from "psychotic" behavioral manifestations directed at a judge, "vigorous", in this context, seems hard to define and appears mostly subjective. There is another equally nebulous issue - that of protecting officers of the court, which to non-lawyers seems like the first step on a very slippery slope. Protection of them from what? One can understand a need to protect their professional dignity, to protect their person, to protect them from slander or ungrounded verbal assault. Beyond these considerations how are unpleasant facts, if presented honestly with civility to be considered?  If they are protectively excluded, isn't there a danger to the integrity (or the reality) of justice? Should court officers be protected from themselves? It renders any notion of accountability a charade.

When a judge makes an error of judgement, when a judge makes an error in law, when a judge abandons civil behavior, when a judge ignores the malfunctioning of a "court officer" and takes no corrective action, when a judge fails to accept evidence and acts in ways that favor one party, should everyone involved in the case "protect" the judge?  As citizens, we hope not, or justice is in integrity free fall. Yet the evidence that these issues get any real correction is scant at best, as far as pubic awareness is concerned

There are formal, professional avenues for complaining about these kinds of judicial mischief. In the opinion of many they are all "protective" of court officers. While they accept complaints from the public, they largely protect the "court officer" from any widespread vulgar public view during a review and judgement about the complaint. They are without the kind of public transparency that one would see for similar legal complaints about politicians, religious leaders, doctors and most other professions. The "court of public opinion" is firmly, politely excluded. Some would say that these officially approved avenues for making a complaint about an officer of the court are ultra protective of "court officers". The bottom line proof of protectiveness can be read in the numbers. Look at statistical outcome measurements. Judges are virtually never found guilty of any form of judicial malfunctioning. Either they are paragons, or the system is "rigged", and an "imperfect" court officer is rendered "perfect" by the complaint procedure itself. Likewise, Guardians ad litem who receive public complaints are virtual "saints in the church". The numbers alone tell the story. A low incidence of complaints from the public and virtually total exoneration of all complaints is used by the judiciary to claim "no problem". But consumers know "officers of the court" are far from perfect.  It is near universal public belief that the "deck is stacked"; a complaint will go nowhere, and the time and money spent in pursuing a complaint is a waste. Worse than a waste. A "court officer" who goes through the standard complaint protocol and comes out "squeaky clean" is vindicated. The alleged malfunctioning never happened (or had no merit) and the one filing a complaint is perceived as a "crank".

There is also another potential escape from accountability - an unsubstantiated claim of diminished professional responsibility caused by mental illness, medication side effects, alcoholism on the part of a wrong-doer. This is an "escape hatch" used by politicians finding themselves in trouble, but lawyers can use it too. After accolades for "courage" in self-diagnosis, there is a quick round of counseling and all is forgiven. Not to say that "officers of the court" are immune to the afflictions of alcohol, drugs and mental illness, but how does the public know about the nature and validity of such claims?  And…. even with valid claims and valid treatment, who determines "fitness for (professional) duty" after treatment? Is alcoholism (according to AA) ever truly cured? What about recurrences of a major mental illness? Are public 'caveats' ever forthcoming about damaged legal professionals who may exit a remission while continuing to work?
 
At the present time, the public has the impression that the system of oversight for "officers of the court" described above is very shaky indeed. It is totally counter-culture to what Americans demand for the policing of other major professions. Its archaic privilege is increasingly questioned and increasingly difficult to justify. The numerical growth of 'pro se' litigants, who are under none of the  professional conventions to handle "officers of the court" protectively, may be the catalyst that cracks open the system, while oversight groups like the overseers struggle to hold onto conventions. Two tracks: "do it yourself" and "follow the guild". One has protective standards; one has none. One has conventions; one has none. Two systems of justice - how  does this impact justice - and the adjudicative process?


MeGAL is working to bring reform to the Guardian ad litem and Family Court systems. We do this through education and legislative process. If you would like to get involved we encourage you to contact us, your state representative or find us on Facebook.

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