David R. Usher
February 12, 2006
NewsWithViews.com

If there is one thing that almost everyone agrees on, it is this: courts are too often corrupt and inflict horrid injustices on litigants before the bench.

Why does this happen?

The legal profession is a de-jure vertical trade monopoly. It is also the only trade that entirely regulates and disciplines itself. Bar Associations are, before anything else, trade organizations that push policies and law that increase business opportunities for lawyers. This is why liberal courts entertain many outrageous cases lacking statutory or clear constitutional foundations, while strangely dismissing others that do.

Bar associations go to great lengths to stifle internal discipline. For example, attorneys are perhaps the only professionals not protected by whistleblower laws. What nobody knows about never happened.

Holding a law license does not guarantee one is a competent, honest attorney. It means that person does what is dictated by the Bar. At the top level, Rules of Court make it a disbar-able offense for an attorney to publicly criticize another attorney or judge – or for judges to criticize each other -- no matter how horrid the offense. If there is one thing Bar Associations enforce with vigor – it is their own anti-whistleblower rules.

Attorneys are not the only individuals bound and gagged. Perhaps hundreds of thousands of legitimate complaints are filed with bar association disciplinary Commissions each year. Few result in anything more than a terse official letter from the Bar informing the complainant that the issue is now a private matter that can not be mentioned to anyone under punishment of some law that probably does not even exist.

It is very rare to see an attorney or judge disciplined or disbarred. In fact, about the only time this occurs is when an attorney does something so momentous and so public that the Bar must take action due to public pressure.

Attorneys must play the corruption game in order to become a judge. After becoming a judge, the former attorney has to play ball to stay in good standing with the Bar. He must cover for mal-practicing attorneys while exerting great pressure on the “honest” attorneys to keep the clients from “going public”.

The breadth of control and resulting corruption in courts today make the combined practices of Microsoft, Teapot Dome and Tammany Hall pale in comparison -- spanning the federal class-action gold-mines in Madison County, Illinois to divorce courts across the country.

In fact, it is reasonable to say that the Bar is the “fourth branch” of government, controlling the other three according to its business interests.

When viewed from this understanding, it is easy to see why the ACLU litigates all sorts of things that go against the interests of its supposed constituency. We see why VAWA continues to exist – not to protect women – but to drive as many families into the divorce machine as possible. Endless Congressional issues such as welfare, health care, and retirement benefits never get resolved because the Bar has enough clout to block legitimate congress people from moving forward. This tremendous problem affects everyone. It must be ended as soon as possible in all states.

There is a very simple and sensible way to break this cycle. It starts with the legislative establishment of a “separation of judiciary and law trade” doctrine, and state-level Commissions to regulate and discipline attorneys:

1. State legislatures must assert the settled legislative authority they hold over business trades to include oversight of attorneys. Attorneys are not judges, and therefore are not exempted by the “separation of powers” doctrine. At this level, attorneys are not different from their counterparts in the fields of medicine, insurance, and accounting.

2. State Legislatures should create an Attorney Oversight Commission, perhaps operating under the department of public safety. The Commission should be comprised of 13 retired non-attorney members, two of which are alternate Commissioners, and two non-voting members who retired attorneys. The two attorneys would serve in an advisory capacity as to issues of law, and not have a vote in cases presented to the Commission.

3. The Attorney Oversight Commission will be appointed for life, or upon voluntary resignation, and drawn by lottery. Lottery applicants must hold a four-year bachelor’s degree or better in their field of expertise. Voting applicants may not be from the legal profession, or have immediate family or parents who have held a law license. Applicants should not also hold their degree in social work, psychology, or women’s studies because these fields often work as special advocates in the court system. Commission members will be paid a reasonable sum for their work, plus expenses for alternate housing and travel expenses.

4. Commission members may be removed by the State’s attorney, and replacement drawn from the lottery, upon showing that a Commission member has been convicted of a class 2 (or B) misdemeanor or greater, or where it is demonstrated to the State’s Attorney by physical evidence that a Commissioner no longer meets requirements to sit on the Commission, or has been compromised and connived in any way with anyone to prevent the Commission from performing its duty.

5. Complaints of attorney misbehavior will be heard by the Commission. As cases come in, they should be assigned to two Commission members, who co-manage the case and develop the points, and a preliminary recommendation for presentation and open hearing by the full Commission.

6. All hearings must be fully open to the public, and all findings published on an accessible web site.

7. The Commission must have power of subpoena, enforceable by the State’s Attorney to view private, court, and attorney records, and to subpoena any individual whose testimony is deemed important by the two case managers.

8. The Commission must also have authority to temporarily or permanently disqualify court appointees such as court liaisons, guardian ad litems, psychologists, and other advocates that courts appoint, particularly in family law cases. Special advocates are often the worst offenders – used by corrupt attorneys to do their bidding behind the scenes.

9. The Commission should be funded to allow temporary retainer of retired individuals to research and help discern information in complex cases, at reasonable cost to the State. The kinds of individuals needed will be paralegals (who were never licensed attorneys), accountants, doctors, and any other licensed professionals. To work on a case, retiree specialists must sign an affidavit stating that they have no personal relationship with anyone named in the case, and no other conflict of interest.

10. If a Commission member has any conflict of interest in a case before the Commission, the member shall disqualify him/herself, and an alternate Commissioner appointed.

11. The level of discipline must be methodically defined in statute. I recommend four levels of malpractice definitions, codified in statute based on severity of the infraction. Any offense that would constitute a disbar-able offense will count as a class 4 (or D) infraction in statute. Lesser infractions, based on damage to the complainant or the case, would score 1 though 3 points.

12. After a case is heard, the Commission will vote to determine the outcome. Of the 11 possible votes, a score 10 or 11 or will result in permanent disbarment, plus fines and public censure. A score between 8 or 9 results in disbarment of two and four years, respectively, plus fines and public censure. A score of 7 will result fines and public censure. A score of 6 will result in public censure and refund of fees only.

13. When the vote is 7 or greater, fines will be calculated by multiplying the number of points, times $20,000, plus refund of attorney fees, payable to the victim. A small percentage of the fines will go to the state to cover costs of operating the Commission. The attorney must also refund all fees to the victim.

14. When fines or censures are levied, case decisions will be published on the Commission website. When the vote is 5 or less, the Commission will confidentially retain case information, for tracking possible repeat violators. 

15. Case decisions may be vetoed by the Governor, who has 30 days to rescind the finding for cause stated, before the decision is final. Approval of the decision by the Governor shall not be required.

This system will work extremely well. It will no longer be possible for dishonest attorneys to practice long enough to become judges, regardless of local elective or appointive judicial practices.

After implementation, judges will be free to make decisions based on case facts, no longer hiding corrupt courtroom behavior. Over time, the quality of trial judges will rise, as a new fleet of honest attorneys work their way on to the bench. Subsequent appointments to higher court positions will further increase the quality of jurisprudence for all Americans.

© 2006 David Usher - All Rights Reserved