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.

ME - Please, Give Us, "Access to Justice"!

This week the Maine Bar is hosting their annual meeting. This year the Bar is promoting the idea of Access To Justice (A2J). Their idea of what Access To Justice is different than what we would consider a consumers Access To Justice. Presented here is our letter to the Maine Bar regarding this very sensitive issue of Justice and how consumers are able to access this service:

This week the Maine Bar is hosting their annual meeting. This year the Bar is promoting the idea of Access To Justice (A2J). Their idea of what Access To Justice is different than what we would consider a consumers Access To Justice. Presented here is our letter to the Maine Bar regarding this very sensitive issue of Justice and how consumers are able to access this service:

Stephen D Nelson, Esq.

President

Maine Bar Association

Dear Mr Nelson:

Many members of the public are pleased to learn that the Maine Bar Association has chosen as this year's convention theme, "Access to Justice".  We hope that this uplifting theme inspires your membership to address the growing "Access To Justice" problem of self-representation in Maine courts.  In family courts, the statistic that 75% are 'pro se' means that the 'pro se' litigants outnumber lawyers by a wide margin, and family courts ought to be renamed, 'pro se' courts. The "new normal" in these courts is 'pro se'. Though 'pro se' litigants are the majority in family courts, one would never know it from the power dynamics as attempts to preserve the old ways prevail. And 'pro se' litigants receive 2nd class services (or worse).

I present the following extracts from actual cases for illustrative purposes. They are intended as examples that illustrate the human aspect of "Access To Justice". With a 75% statistic, there are literally hundreds of additional "access to justice" human problems. It needs action from the bar, unless the bar is to limit its legal practice in family courts to those with access to "money". No money, no service - except for limited 'pro bono' charity, which, though worthwhile, doesn't seem to reduce the 75% numbers.

Herewith samples that put a human dimension on the 'pro se'  problems:

1.)  Access to Justice: for many 'pro se' this means inaccessibility of access to 'pro bono"? A case example: one of many.

On several occasions, I sought out legal services that were pro bono, or 'a la carte,' or, in one instance, an hour consult to prepare for a 'pro se' two hour trial in which both myself and my former husband were to be 'pro se', I was told by attorney after attorney that neither pro bono, nor  "a la carte" was an option (not even a FREE one hour consultation).

One highly regarded law office was so bold as to point blank state, Attorney ******* will not meet with you because it would not be "cost effective for her". Cost effective?

2.)  Does "Access To Justice" have to mean bankrupting  clients?

"Once a post-judgement plaintiff and / or defendant has spent every last bit of savings - including all retirement funds- and has liquidated all material assets (as in my case: a home that was once the primary home for our two minor children, all home furnishings, etc....), there will no longer be "access to justice"?

3.)  Does Judicial Role Distortion in 'pro se' cases mean "access to justice"?  Or does judicial improvisation signal the collapse of courts as we have known them?

"In our last trial - as both parties were  'pro se' - the judge did all the questioning. I was unable to cross examine. The defendant told untruths and because the judge did not know the truth from Adam, he had no idea when to challenge a response from the defendant. If I had an attorney, I would have been allowed to challenge the untruths.

A few times I objected and attempted to shed light on what was spoken as truths as being untrue BUT I was not given the benefit to explain the "objections" without presenting as "difficult". Being 'pro se' and without being able to counter defendants claims - there was no access to justice on that day in court. In our first trial - with an attorney present on both sides - "no hear-say was permitted in court."

4.)  Attorney intimidation limits access to justice even for clients who can pay for a lawyer.

'Sua sponte' disciplinary complaints to the Overseers, if an attorney provides too robust a defense, is another factor limiting a client's "Access To Justice". Even those family court defendants who can afford a lawyer may find that their lawyer is intimidated by threats of sanction if a defense is perceived as too robust. In a family court system that is 75% 'pro se', an over-scrupulous concern about how things get done, seems misplaced.  What indeed are the legal standards for a 'pro se' court? Are there any? Selective scrupulosity, using "old normal", standard tools in a "new normal" situation seriously limits "Access To Justice" for clients who can pay, and, looks like a variant of the approach used to control lawyers in Boston in the heyday of the Catholic Church scandals.

Our proposal to the Maine Bar:

We would propose that the Maine state bar seek a legislative mandate to take immediate legal representation responsibility for all 'pro se' litigants in all civil courts, such as the 75% 'pro se' litigants, and that the bar make an equal, fair division of all 'pro se' litigants, to be allocated amongst all licensed bar members, as a condition of receiving a license to practice law in Maine. It would solve the 'pro se'  problem pronto (and the human hardship therein), while research goes on. Alternatively, the bar might decide to turn family courts entirely over to the 75% 'pro se', and establish a separate court for the wealthy, full paying parties.  It is rapidly reaching that point of inflection anyway.

Yours for seeking solutions to 'pro se' "outside of the box"!

MeGAL has been working for Guardian ad litem and court reform. Access to Justice (A2J) is another part of the problem with our Courts where over 50% of the population who consume judicial services are doing so on their own. The Maine Bar Association is having their annual meeting and the theme for this year is Access to Justice. Or is it? If you have had issues with the courts, as a Pro se litigant, represented by a lawyer who fears the courts - we ask that you contact us with your story. We can be reached at NationalGALalert@gmail.com or find us on Facebook.

Further resources:

A2J Canada - Canadian Bar

Canadian Forum on Civil Justice

2013-08-13 Access to justice in Canada ‘abysmal’: CBA Report

2014-02-05 Access tojustice: Help coming for people headed to Canada’s civil and family courts

National Center for Access to Justice ( NCAJ )

Department of Justice - Access To Justice