Should retired judges be beyond the reach of the courts?

Source: OTHERWISE: Should retired judges be beyond the reach of the courts?

by George W. Conk

Alex Kozinski, Brett Kavanaugh, and Maryanne Trump Barry have all been relieved of the burden of inquiries into their conduct under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351–364, which empowers the federal judiciary “to determine whether a covered judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts or is unable to discharge the duties of office because of mental or physical disability.”

The three have in common that their resignations from the bench assertedly deprived the courts of jurisdiction because a judge is no longer a judge when he or she retires (Kozinski and Trump Barry) or steps up to the United States Supreme Court (Kavanaugh).  In each circumstance, according to the Second Circuit Judicial Council (in the Kozinski case) the “Act is concerned with individuals whocurrently exercise the powers of the office of federal judge”.  Because he or she “can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated under the Act” making the proceedings “unnecessary”.  Yet the two Circuit Judges collect pensions at full salary for life [28 U.S.C. 371(a)] and, if willing, may be “assigned judicial duties”. [28 U.S.C. 294] The now Associate Justice draws a salary as a member of the highest court and very much “performs judicial duties”. KEEP READING


OTHERWISE: ABA: Immigration Courts face existential crisis – system “irredeemably ” dysfunctional

OTHERWISE: ABA: Immigration Courts face existential crisis – system “irredeemably ” dysfunctional

from the ABA Commission on Immigration – 2019 report (full text linked above):

The immigration courts are facing an existential crisis. The current system is irredeemably dysfunctional and on the brink of collapse, and the only way to resolve the serious systemic issues within the immigration court system is through transferring the immigration court functions to a newly-created Article I court. This approach is the best and most practical way to ensure due process and insulate the courts from the capriciousness of the political environment. It is further our view that the public’s faith in the immigration court system will be restored only when the immigration courts are assured independence and the fundamental elements of due process are met.

Unpacking the Barr Letter re Mueller ~ Rosenzweig // Lawfare – Brookings Institution

 Prosecutorial discretion! 

Paul Rosenzweig carefully analyzes the ambiguities in Attorney General Barr’s letter on the still secret Mueller report which reportedly concluded that the Trump campaign did not conspire with the Russian government to steal data and interfere in the 2016 presidential election.

The second aspect is that despite conflicting evidence Mueller decided not to charge Trump with obstruction of justice.  The key factors are likely difficulties of proof of intent (liars lying), and adherence to Justice Department policy not to charge if there is another remedy – here impeachment by the U.S. House of Representatives. – gwc

Source: OTHERWISE: Unpacking the Barr Letter re Mueller ~ Rosenzweig // Lawfare – Brookings Institution

55 years after first SCOTUS appearance, lawyer is back for second redistricting case

Source: 55 years after first SCOTUS appearance, lawyer is back for second redistricting case

Another good thing about legal academia.  No mandatory retirement age. – gwc

Bondurant’s current age is 82, and he says he has no plans to retire or to quit his work to improve democracy through the courts.

“I’d rather spend my time doing that than playing golf, in part because I play golf so badly that the opportunity not to play is itself a positive,” Bondurant told NPR. “But this is really important stuff, and it’s very fundamental.”


Discriminatory Driver’s License Suspension Schemes – American Constitution Society

Danielle Conley of Wilmer Hale and former associate Ariel Levinson have authored an issue brief on Discriminatory License Suspension Schemes.  It is an important access to justice and right to counsel issue.

Source: OTHERWISE: Discriminatory Driver’s License Suspension Schemes – American Constitution Society

New Jersey Supreme Court Rejects Mandatory Malpractice Insurance, embraces disclosure of coverage

The New Jersey Supreme Court has issued a Notice to the Bar.  It has rejected in part, accepted in part, and deferred in part the recommendations of its Ad Hoc Committee on Attorney Malpractice Insurance.  It concurred with the November 2017 report recommendation that malpractice insurance not be mandated for all private practitioners.  The Court retains its Rule 1:21-1A that all limited liability firms must carry insurance in the minimum amount of $100,000 (multiplied by the number of attorneys in the firm). The Court concurred with its Committee that lawyers be required to publicly register evidence of the coverage they carry.  The Administrative Office of the Courts is directed to develop procedures to implement the principle.  And the Court announced that it will revisit at an unspecified date whether attorneys who lack coverage should be required to disclose that fact. – gwc

Source: OTHERWISE: New Jersey Supreme Court Rejects Mandatory Malpractice Insurance, embraces disclosure of coverage


OTHERWISE: Harvard Law Prof Defends Decision to Represent Weinstein

Source: OTHERWISE: Harvard Law Prof Defends Decision to Represent Weinstein

Ronald Sullivan, a former Public Defender and the Director of Harvard Law’s criminal justice program, is one of the most prominent criminal defense lawyers in the country.  An African American long associated with criminal justice reform, he has drawn disapproval from some for signing on to the defense team of Harvey Weinstein, the Hollywood mogul now under indictment for sexual assault.

After students criticized him, including the editors of the student-edited daily Harvard Crimson fifty two Harvard Law Professors rose to his defense in an open letter.
Sullivan has now defended himself in a long interview published today in the New York magazine.


A Century Later, a Little-Known Mass Hanging of Black Soldiers Still Haunts Us –

Source: OTHERWISE: A Century Later, a Little-Known Mass Hanging of Black Soldiers Still Haunts Us –

100 years after one of the least-known and saddest chapters in American history, families of executed black soldiers have petitioned Trump for justice. Sixty-three black soldiers were represented by one lawyer in the largest court martial in U.S. history, the first of three that followed the Houston riot of 1917. In total, 110 men out of 118 were found guilty, and nineteen were sentenced to death by hanging.

OTHERWISE: No right is secure: Thomas , Gorsuch and Alito disparage right to counsel set in Gideon v. Wainwright

Source: OTHERWISE: No right is secure: Thomas , Gorsuch and Alito disparage right to counsel set in Gideon v. Wainwright

The breadth of the threat to well established rights is stunning.  In the past few weeks Justice Clarence Thomas has reportedly directly lobbied Senators to place a former clerk on the Court of Appeals for the D.C. Circuit; questioned Times v. Sullivan; disparaged Times v. Sullivan;and declared that Roe v. Wade and Dred Scott v. Sanford are among the worst decisions of the court and the fruit of the same constitutional doctrinal defects.  The targets have expanded to include a three judge attack on the expansion of right to counsel beginning with Powell v. Alabama which reversed the nine notorious death sentences in the Scottsboro cases, the injustices of which are described in this contemporaneous ACLU reportKEEP READING

Louisiana Supreme Court Disbars Attorney For Anonymous Online Posts – Legal Ethics in Motion

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Source: OTHERWISE: Louisiana Supreme Court Disbars Attorney For Anonymous Online Posts – Legal Ethics in Motion


The Louisiana Supreme Court has disbarred a former Assistant United States Attorney for posting anonymous, online comments about cases being handled by his office.

From November 2007 through March 2012, Sal Perricone, an Assistant United States Attorney for the Eastern District of Louisiana, used five anonymous pseudonyms to post over 2,600 comments on the New Orleans Times-Piscayne website. On 100 to 200 of those posts, Perricone offered his strong opinion on cases with which either he or his office were affiliated. 

In one case that involved the prosecution of police officers over the shooting of unarmed civilians in the aftermath of Hurricane Katrina, Perricone wrote: “NONE of these guys should have ever been given a badge.” The officers were convicted but, the district court judge reversed the police  convictions, in a 129 page opinion that cited “grotesque prosecutorial misconduct,” referring in part to Perricone’s comments.

Read the full opinion here.

Closing the Gap in Judicial Ethics

Source: Closing the Gap in Judicial Ethics

On Tuesday, January 29th, at 10am, Sarah Turberville, Director of The Constitution Project at POGO, testified at a hearing before the House Judiciary Committee on H.R. 1, the For the People Act of 2019.

Thank you, Chairman Nadler, Ranking Member Collins, and Members of the Committee for the opportunity to speak with you today about H.R. 1, the For The People Act of 2019. My name is Sarah Turberville and I am the director of The Constitution Project at the Project On Government Oversight. Founded in 1981, the Project On Government Oversight (POGO) is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing; The Constitution Project was founded in 1997 and joined POGO in 2017. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.

Sarah Turberville, director of The Constitution Project at POGO, testifies before the House Judiciary Committee on H.R. 1, the For the People Act, January 29, 2019.

Statement on H.R. 1, the For The People Act of 2019

Section 7001 of the For the People Act would close a conspicuous gap in federal ethics rules. It would require the Judicial Conference of the United States to issue a code of conduct applicable to each judge and justice of the United States, which may include provisions “that are applicable only to certain categories of judges or justices.”1 We strongly support this long-overdue ethics reform and encourage lawmakers to view this measure as a first step toward preserving the actual and perceived integrity of the federal courts.

A magnifying glass hovers over the U.S. Capitol.

A Closer Look at Ethics Reforms in HR 1, the For the People Act

This ambitious proposal, the “For the People Act,” includes many reforms that the Project On Government Oversight (POGO) has long supported. For example, for years, POGO has advocated for stronger policies to ensure that high-level government officials going through the revolving door between government service and private industry do so in a way that protects government policies from undue industry influence.

Read More

By extending a code of ethics to the Supreme Court for the first time, the legislation seeks to balance the need to enhance the public’s faith in the judiciary with the imperative to safeguard the separation of powers between the legislative and judicial branches. While tough questions concerning the scope and enforcement of a code of conduct for the Supreme Court may arise, the benefits of applying such a code to the justices—including the benefits that would flow to the public’s understanding and perception of the courts—far outweigh any disadvantages.

A code of conduct for all judges and justices of United States courts could increase public confidence in the legitimacy, integrity, and independence of the courts. It would also better ensure fairer application of ethics rules—perhaps with the added benefit of the justices’ closer scrutiny of their own conduct. A code of conduct for the entire federal judiciary has bipartisan support. In the last Congress, a Republican-sponsored bill contained an identical provision.2

OTHERWISE: Access to Justice | American Academy of Arts and Sciences

Daedalus – the journal of the American Academy of Arts and Sciences has published an entire issue on Access to Justice (A2J).  It is the fi…

Source: OTHERWISE: Access to Justice | American Academy of Arts and Sciences

Daedalus – the journal of the American Academy of Arts and Sciences has published an entire issue on Access to Justice (A2J).  It is the first ever open access online issue of Daedalus.  Of particular note to me are Tonya Brito (Wisconsin) on the right to civil counsel, Robert Gordon on the history of lawyers support for access to justice, and Dean Andrew Perlman (Suffolk) on what law schools can do about it. I have copied the abstracts and links which appear on the blogpost on Otherwise, above. – gwc

Access to Justice | American Academy of Arts and Sciences

OTHERWISE: Hearings, counsel required before suspending driver’s licenses in delinquent child support cases – NJ Superior Court

Source: OTHERWISE: Hearings, counsel required before suspending driver’s licenses in delinquent child support cases – NJ Superior Court

Due Process requires hearings, counsel for suspending driver’s licenses in delinquent child support cases, New Jersey Superior Court holds

Responding to Congressional pressure and the problem of substantial delinquencies in court-ordered child support payments – much of it owed to the state which sought to recover welfare payments – New Jersey in 1998 amended its child support act, providing in NJSA 2A:17-56.41 (a) for suspension of driving licenses “as a matter of law” if a child support arrearage equals or exceeds the amount of child support payable for six months or court-ordered health care coverage for the child is not provided for six months”.  Judges, on the recommendation of probation officers, issued failure to pay (FTP) warrants by virtue of which the statutes provides the “ obligor’s driver’s license shall be suspended by operation of law”.

In Trenton Superior Court Judge Mary Jacobson has ruled that this “automatic” suspension of driving privileges violates both “due process” and “fundamental fairness”.  Relying on our State Constitution in her 187 page opinion in Kavadas v. Martinez as Chief Administrator of the Motor Vehicle Division, the Mercer County Assignment judge enjoined such automatic suspensions and gave the State 120 days to devise regulations to eliminate this practice by which some 20,000 people each year have lost their driving licenses without notice or an opportunity to be heard.

The obligation to pay child support depends on the ability to comply with court-ordered child support payments.  Delinquency is concentrated among low income parents with support obligations.  It is only willful failure to pay that is enforceable and sanctionable.  Jacobson therefore ordered the state to provide counsel to indigent obligors who seek to demonstrate their inability to pay, typically due to changed circumstances such as job loss, ill health, etc.  Building on the landmark ruling in Pasqua v. Council (2006), in an opinion by Justice Barry Albin the state Supreme Court required that “attorneys be appointed to assist indigent non-custodial parents facing incarceration at child support enforcement hearings”.

Aside from the automatic license suspensions enjoined, in some circumstances a hearing officer may recommend or a judge may order suspension of a license as a punitive and coercive measure.  Plaintiffs, represented by the lawyer who prevailed in Pasqua, sought to extend the right to appointed counsel to all indigent obligors who faced serious consequences for failure to pay child support.  Judge Jacobson extended the Pasqua principle to some civil enforcement of litigants’ rights hearings.  She explained that  “both due process and fundamental fairness require courts to provide counsel to indigent obligors at any hearing at which a hearing officer may recommend a driver’s license suspension to a court, or at any hearing when the family court itself is considering a driver’s license suspension.”

In her comprehensive opinion Judge Jacobson took note of a 2006 study by the Bloustein School of Planning and Public Policy with the New Jersey Motor Vehicle Commission –  Motor Vehicles Affordability and Fairness. The report “found that 42% of individuals who had their licenses suspended lost jobs as a result of the suspension, 45% of those who lost jobs could not find another job, and 88% of those that were able to find another job reported a decrease in income.” Jacobson wrote that “[e]ven though most of the Report’s findings addressed license suspensions in general and did not focus on child support-related suspensions, it is reasonable to assume that the affected dependents likely included many children who are the subject of child support orders, and the very individuals that the automatic license suspensions were intended to benefit.”  The Bloustein/MCV report also found that in low income areas “child support suspension rates for drivers…were ten times higher than the Statewide average.”

Judge Jacobson’s ruling addresses an important public problem.  It is to be hoped that Philip Murphy, the state’s Democratic Governor, his Attorney General, and the Division of Family Development will work diligently and earnestly to produce the new regulations which the court has granted 120 days to formulate.  Judge Jacobson declined to make her order retroactive.  Thousands of parents – especially low income -doubtless remain stranded without driving privileges.   Their status is something which the Legislature can and should address.

Finally, as the judge urged, the Legislature should “remove the provision directing automatic suspension of drivers licenses upon issuance of a support-related warrant.”   Judge Jacobson opined that “[s]uch an amendment would also end New Jersey’s outlier status as the only state utilizing this linkage and would restore the procedural protections originally afforded to obligors facing driver’s license suspensions.”

– George Conk
December 14, 2018

A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error – ABA Formal Opinion 481

Source: OTHERWISE: A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error – ABA Formal Opinion 481

ABA Formal Opinion 481 (April 2018)

A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error

A perhaps too little recognized irony of the duties of loyalty, diligence, and competence we owe our clients is that the dangers faced may be of our own making.  When we have made a mistake – missed a deadline, failed to join a party needed for proper resolution, or otherwise put a client’s interests at risk a conflict of interest arises.  Our duty of reasonable consultation (RPC 1.2) generally requires us to keep the client informed of our efforts.  But that duty is sorely tested when we may have caused the client harm.  When must we tell the client?  He ABA in Formal Opinion 18- 481 has recently addressed that.


The ABA Standing Committee on Ethics and Professional Responsibility’s Formal Opinion, Rule 1.4, requires that ethical lawyers “self-report” to a current client if they have erred in the client’s representation and if the error is material.  The test is whether a disinterested lawyer would conclude that the error (a) is reasonably likely to harm or prejudice the client; or (b) is of such a nature that it would reasonably cause a client to consider terminating representation even in the absence of harm or prejudice.

RPC 1.4(a) requires a lawyer to promptly inform a current client (a) of any decision or circumstance which requires the client’s informed consent; (b) to reasonably consult with the client about the means by which the client’s objectives are to be accomplished; and (c) to “keep a client reasonably informed about the status of a matter.”  RPC 1.4(b) also requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”  In a broader context, the guiding principle which furnishes the foundation for RPC 1.4 is that “the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interest.”

Model Rule 1.7(a)(2) provides that a concurrent conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by . . . a personal interest of the lawyer.” Where a lawyer’s error creates a Rule 1.7(a)(2) conflict, the client needs to know this fact to make informed decisions regarding the representation, including whether to discharge the lawyer or to consent to the conflict of interest. At the other extreme, an error may be minor or easily correctable with no risk of harm or prejudice to the client.



It is noteworthy that the ABA concludes that the duty to report is not owed to a former client.  But it seems to me that if a lawyer has breached the duty to report his/her own error there may still be a duty – and the malpractice statute of limitations may well be tolled by the failure to disclose one’s error.

As the ABA Opinion 481 observes various jurisdictions have over the years addressed the self-reporting obligation as a corollary to RPC 1.4 and 1.7(b).  New Jersey’s Supreme Court Advisory Committee on Professional Ethics in its Opinion 684, published in 1998, has stated that “when the attorney ascertains malpractice may have occurred, even though no damage may yet have resulted, has an obligation to disclose this to his or her current client.”

In New Jersey where I practiced for thirty years and remain an active member of the bar our Supreme Court in the 1997 case of Olds v. Donnelly, reminded attorneys that they have an obligation to notify clients when the client may have a legal malpractice claim, even though notification will be adverse to the attorney’s own interest.  The Court there relied on RPC 1.7(a)(2) which states that a conflict of interest arises if “there is a significant risk that the representation of one or more clients will be materially limited by … a personal interest of the lawyer”; which, therefore, requires the client to be advised of the attorney’s error in order for the client to make an informed decision as to whether to discharge the lawyer or to consent to the conflict of interest.

  • GWC

John Gibbons Dies at 94; Argued for Rights for Guantánamo Detainees – The New York Times

Source: OTHERWISE: John Gibbons Dies at 94; Argued for Rights for Guantánamo Detainees – The New York Times

One footnote, not mentioned in this excellent obituary by Richard Sandomir in the Times, is that In 2006 Gibbons directed two young lawyer lobbyists at his law firm to press to accomplish the repeal of the death penalty by the New Jersey Legislature. They helped to bring about repeal in December 2007, an event marked by illumination of the Colosseum in Rome. – gwc

John J. Gibbons dies at 94

A true role model.  A great man, a great lawyer, a great judge, a great teacher.
John J. Gibbons Dies at 94 | Newsroom | Gibbons P.C.

Mr. Gibbons committed his 65-year career to protecting the rule of law in this country, a commitment that took root in the 1960s – when, as President of the New Jersey State Bar Association, he enlisted attorneys during the Newark Riots to help those unable to afford legal representation – and blossomed in the new century, with the historic Supreme Court of the United States decision in Rasul v. Bush among his most famous and impactful achievements. In 2004, Mr. Gibbons joined with two other former federal judges from New Jersey to file United States Supreme Court briefs opposing the detention, without judicial review, of the 660 men incarcerated at the Guantánamo Bay Naval Base. Mr. Gibbons argued the case, and, in a historic decision, the Court decided in favor of the Guantánamo Bay detainees, demonstrating clear support for civil liberties and government transparency in the war on terrorism.
“The Judge played a lot of roles here at the firm that bears his name: role model, teacher, mentor, friend, and hero,” said Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons P.C. “He was a quiet, soft-spoken legal rock star who walked among the giants in our profession and, in the process, became one of the biggest.”

Independence of the Department of Justice: A fraught history. Trump’s appointment of Matthew Whitaker unlawfully bypasses Senate-confirmed officers

There is a long tradition of presidents appointing loyalists as Attorney General.  Robert F. Kennedy and Griffin Bell come immediately to mind as the brother and childhood friends of John Kennedy and Jimmy Carter.  Professor Jed Shugerman has critically explored that history at length in a work in progress.

But there was an important post-Watergate shift which sought to buttress the independence of the office of the Attorney General and the entire Department of Justice from the presidency.  In 1977 the passage of 28  USC 508 governed succession in the Department of Justice in the event of a vacancy of the office of the Attorney General – head of the Department of Justice, itself created in 1870, a subject explored in the Stanford Law Review by Fordham legal historian Shugerman.  The 1977 Act was preceded by  the 1976 Omnibus Crime Control Act 42 USC 3701 that created a ten year term for the Director of the Federal Bureau of Investigation who must be confirmed by the Senate.  The clear policy thrust is to strengthen independence of the Department of Justice and Attorney General. It is that which is threatened by Mr. Trump’s appointment of Mark Whitaker as Acting Attorney General to assume oversight of  an investigation of the President himself. I discuss the legality of Trump’s appointment in the post linked below- GWC

Source: OTHERWISE: Trump’s appointment of Matthew Whitaker unlawfully bypasses Senate-confirmed officers