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The Many Ways in Which Lawyers Can Do Nothing About an Unethical Environment
Thursday, July 8th, 2010
Robert Wechsler
When it comes to government ethics, too often lawyers are nowhere to be
seen, unless they are the ones saying that unethical conduct is legal.
Far too often, lawyers do not use their knowledge, their strong, independent
personalities, and their professional
obligations to stand up to, or at least question, those acting
unethically.
A horrible example of this, a cautionary tale that every law student should read in the first year, occurred when all the lawyers in the system (and other professionals, as well) did nothing to stop thousands of juveniles from being tried without counsel and wrongfully sent to detention centers in Luzerne County, Pennsylvania (see my blog post on this situation).
The Interbranch Commission on Juvenile Conduct's final report on the criminal and unethical conduct of the Luzerne County juvenile court was published a month ago, and it is painful, but important reading.
Here's how some of the lawyers with obligations relating to what occurred acted and spoke about the situation, according to the report.
The District Attorney's Office
Rule 3.8 of the Rules of Professional Conduct requires prosecutors to inform defendants that they have the right to counsel, and Rule 8.3(b) requires lawyers to inform the appropriate authority if they know a judge has violated the rules of judicial conduct, and yet the county district attorney's office did neither.
According to the then district attorney, now a juvenile court judge, none of his assistants said a word to him of what was going on.
The first assistant D.A. overseeing juvenile matters says that she had no idea half of the juveniles were not represented by counsel, and that none of the issues were discussed.
The assistant D.A.'s sent to juvenile court were fresh out of law school, and appear to have been largely unsupervised. One told the commission, "the trust factor was there that if the court is satisfied in proceeding in that manner that was the manner it proceeded."
The district attorney told the commission that he heard nothing about any violations in the juvenile court. "I think that was the atmosphere, that — that it was a very strongminded judge who ran things his way. And over time that atmosphere was created where he was — he was going to run things his way." (p. 32)
The Public Defender's Office
The public defender's office, according to its chief, lacked resources for even one full-time lawyer for juveniles, and represented very few of them. He said he ignored a complaint about one of the judges from a lawyer newly assigned to juvenile court, because he was so understaffed. The complaint said that juveniles were not being represented, and the chief said he wasn't going to advertise that his office was available.
The Juvenile Court Judges' Commission
Luzerne County was detaining juveniles at twice the statewide average in 2003, and in 2007 detained 20% of all the state's detentions, and its waiver of counsel rate was "vastly higher than the statewide average," according to statistics compiled by the Pennsylvania Juvenile Court Judges' Commission. And yet the executive director of the Judges' Commission said that "there were certainly other counties that had high placement rates as well. So I would say that our data did not cause alarms to go off with respect to Luzerne County." In fact, the director said that no statistics would have set off an alarm, because you need very case-specific information.
When a state representative asked the executive director about the high juvenile detention rates and costs in Luzerne County, the director spoke with the juvenile court judge, but with no one else, and waiver of counsel rates were not made public.
The Disciplinary Boards
It appears that no lawyer filed a disciplinary complaint against any lawyer or judge in the juvenile court. But there is no way to know for sure, since there is so little transparency to the disciplinary systems.
When an anonymous complaint detailing the conduct in the juvenile court was filed with the Judicial Conduct Board, the board's chief counsel failed to send the complaint to any criminal authority and failed to put the complaint before the board, thereby preventing an investigation from being made. He is still in his position.
And then the Conduct Board fought the Interbranch Commission in court (unsuccessfully, thank goodness) to try to prevent it from finding out how the anonymous complaint was handled.
Of all the people asked to testify before the commission, it appears that the only ones to refuse were leaders of the Luzerne County bar.
A system without transparency where, even after the most horrible local scandal comes out, the participants fight to keep everything secret, exists not for the public, but for the personal interests of the participants, in this case lawyers and judges. What they did and failed to do is a clear statement that lawyers and judges feel above the law. The confidentiality of their disciplinary system and preservation of their honor appears to be of highest importance to them.
The Court System
The Juvenile Law Center in Philadelphia was the only group of lawyers who did anything positive in this whole mess. In April 2008, it filed a petition with the Pennsylvania Supreme Court asking it to exercise its King's Bench Power or Power of Extraordinary Jurisdiction to end the juvenile court's practice of conducting hearings without counsel or lawful waivers of counsel.
The district attorney opposed the petition, arguing that no broad pattern of abuse had been established and that the matter should begin in the lower courts. The Administrative Office of Pennsylvania Courts responded for the juvenile judge, contending that the issues were moot since the judge had resigned. The Supreme Court denied the petition. Again, not a single lawyer in the system found anything wrong with children being denied counsel at a rate "vastly higher than the statewide average."
Non-Lawyers
Two non-lawyer professionals acted worse and better than any of the lawyers (excluding the judges themselves). The chief juvenile probation officer appears to have colluded with, or otherwise strongly supported the judges. She even helped set up a fine court where juveniles who did not pay fines or restitution were ordered into detention, very few of them represented by counsel. But the district attorney's office was sometimes at these sessions and apparently said nothing about this illegal court, which effectively turned juvenile facilities into a "debtor's prison," according to the report, with children incarcerated until their parents paid what was due. (p. 37)
The practice ended when the fiscal officer of the probation department pointed out that "as a business operation it didn't make sense for us to be trying to collect $400 by placing somebody in a facility at $200 a day." Of course, it made sense to the judge's business (the detention center he partly owned), but at least the very reasonable, although purely economic complaint put an end to one part of the judge's scheme.
The Culture of Intimidation
The president of the Pennsylvania Bar Association told the commission, "there is ... an element of acculturation that apparently occurred in Luzerne County. ... it's kind of like the dog that gets beaten. It's only when you stop that it recognizes something was wrong. ... behavior starts to be the norm to everybody, and nobody thinks things are that far off the mark; or they do, but they are uncertain and unsure what they can do."
A better name for the culture in the Luzerne County juvenile court was intimidation. And is there anything sadder than a bar association president comparing silent lawyers intimidated by a judge to beaten dogs? Dogs aim to please. Dogs don't understand what is going on. And dogs don't have professional obligations, which are supposed to be enforced by a disciplinary system.
The only behavior that is supposed to be normal to a lawyer is behavior that follows the law, the constitution, and the rules of professional conduct. If they face behavior that does not follow these laws and rules, they are obligated to report it. Junior lawyers are obligated to report it to senior lawyers. Senior lawyers are obligated to report it to the appropriate authorities.
They might even discuss the matters among them and stand up to the judge in court. Yes, it's dangerous for one lawyer to do it. But a few lawyers or a district attorney's office should have nothing to fear. All it takes to end such practices is a show of minor force. A judge can, as these judges did, get one person moved out of a position. But they cannot do anything about a group of lawyers. Even a small group of lawyers trumps a judge.
Local Government Ethics
What does all of this have to do with local government ethics? The same culture of intimidation exists in local governments with poor ethical environments. And the same failure of lawyers to join together and stand up to it exists, as well.
Lawyers do not have the same obligations in local government that they have in courts. Therefore, their unwillingness to stand up for ethics in court does not bode well for their willingness to stand up for ethics in local government.
When I was involved in trying to stop my town government's games with the budget, failure to bid out contracts, and culture of intimidation, I wrote to twenty-five lawyers in town, detailing the government's conduct and asking them to meet together to discuss it. None of them was willing to meet. In fact, not one of them responded to my letter. Nor did one of them speak out.
The first selectman (effectively the mayor) was a lawyer, and the town attorney and his partner were involved in supporting the government, defending its worst offenders, and intimidating people themselves.
As in Luzerne County, three high-level officials were arrested, and they immediately retired rather than resign. The voters threw the government out of office. But no thanks to the town's lawyers.
There cannot be unethical local governments without the active and passive support of lawyers. I don't think there can be ethical local governments without the active support of lawyers. Please let me know if you've seen one.
Robert Wechsler
Director of Research-Retired, City Ethics
---
A horrible example of this, a cautionary tale that every law student should read in the first year, occurred when all the lawyers in the system (and other professionals, as well) did nothing to stop thousands of juveniles from being tried without counsel and wrongfully sent to detention centers in Luzerne County, Pennsylvania (see my blog post on this situation).
The Interbranch Commission on Juvenile Conduct's final report on the criminal and unethical conduct of the Luzerne County juvenile court was published a month ago, and it is painful, but important reading.
Here's how some of the lawyers with obligations relating to what occurred acted and spoke about the situation, according to the report.
The District Attorney's Office
Rule 3.8 of the Rules of Professional Conduct requires prosecutors to inform defendants that they have the right to counsel, and Rule 8.3(b) requires lawyers to inform the appropriate authority if they know a judge has violated the rules of judicial conduct, and yet the county district attorney's office did neither.
According to the then district attorney, now a juvenile court judge, none of his assistants said a word to him of what was going on.
The first assistant D.A. overseeing juvenile matters says that she had no idea half of the juveniles were not represented by counsel, and that none of the issues were discussed.
The assistant D.A.'s sent to juvenile court were fresh out of law school, and appear to have been largely unsupervised. One told the commission, "the trust factor was there that if the court is satisfied in proceeding in that manner that was the manner it proceeded."
The district attorney told the commission that he heard nothing about any violations in the juvenile court. "I think that was the atmosphere, that — that it was a very strongminded judge who ran things his way. And over time that atmosphere was created where he was — he was going to run things his way." (p. 32)
The Public Defender's Office
The public defender's office, according to its chief, lacked resources for even one full-time lawyer for juveniles, and represented very few of them. He said he ignored a complaint about one of the judges from a lawyer newly assigned to juvenile court, because he was so understaffed. The complaint said that juveniles were not being represented, and the chief said he wasn't going to advertise that his office was available.
The Juvenile Court Judges' Commission
Luzerne County was detaining juveniles at twice the statewide average in 2003, and in 2007 detained 20% of all the state's detentions, and its waiver of counsel rate was "vastly higher than the statewide average," according to statistics compiled by the Pennsylvania Juvenile Court Judges' Commission. And yet the executive director of the Judges' Commission said that "there were certainly other counties that had high placement rates as well. So I would say that our data did not cause alarms to go off with respect to Luzerne County." In fact, the director said that no statistics would have set off an alarm, because you need very case-specific information.
When a state representative asked the executive director about the high juvenile detention rates and costs in Luzerne County, the director spoke with the juvenile court judge, but with no one else, and waiver of counsel rates were not made public.
The Disciplinary Boards
It appears that no lawyer filed a disciplinary complaint against any lawyer or judge in the juvenile court. But there is no way to know for sure, since there is so little transparency to the disciplinary systems.
When an anonymous complaint detailing the conduct in the juvenile court was filed with the Judicial Conduct Board, the board's chief counsel failed to send the complaint to any criminal authority and failed to put the complaint before the board, thereby preventing an investigation from being made. He is still in his position.
And then the Conduct Board fought the Interbranch Commission in court (unsuccessfully, thank goodness) to try to prevent it from finding out how the anonymous complaint was handled.
Of all the people asked to testify before the commission, it appears that the only ones to refuse were leaders of the Luzerne County bar.
A system without transparency where, even after the most horrible local scandal comes out, the participants fight to keep everything secret, exists not for the public, but for the personal interests of the participants, in this case lawyers and judges. What they did and failed to do is a clear statement that lawyers and judges feel above the law. The confidentiality of their disciplinary system and preservation of their honor appears to be of highest importance to them.
The Court System
The Juvenile Law Center in Philadelphia was the only group of lawyers who did anything positive in this whole mess. In April 2008, it filed a petition with the Pennsylvania Supreme Court asking it to exercise its King's Bench Power or Power of Extraordinary Jurisdiction to end the juvenile court's practice of conducting hearings without counsel or lawful waivers of counsel.
The district attorney opposed the petition, arguing that no broad pattern of abuse had been established and that the matter should begin in the lower courts. The Administrative Office of Pennsylvania Courts responded for the juvenile judge, contending that the issues were moot since the judge had resigned. The Supreme Court denied the petition. Again, not a single lawyer in the system found anything wrong with children being denied counsel at a rate "vastly higher than the statewide average."
Non-Lawyers
Two non-lawyer professionals acted worse and better than any of the lawyers (excluding the judges themselves). The chief juvenile probation officer appears to have colluded with, or otherwise strongly supported the judges. She even helped set up a fine court where juveniles who did not pay fines or restitution were ordered into detention, very few of them represented by counsel. But the district attorney's office was sometimes at these sessions and apparently said nothing about this illegal court, which effectively turned juvenile facilities into a "debtor's prison," according to the report, with children incarcerated until their parents paid what was due. (p. 37)
The practice ended when the fiscal officer of the probation department pointed out that "as a business operation it didn't make sense for us to be trying to collect $400 by placing somebody in a facility at $200 a day." Of course, it made sense to the judge's business (the detention center he partly owned), but at least the very reasonable, although purely economic complaint put an end to one part of the judge's scheme.
The Culture of Intimidation
The president of the Pennsylvania Bar Association told the commission, "there is ... an element of acculturation that apparently occurred in Luzerne County. ... it's kind of like the dog that gets beaten. It's only when you stop that it recognizes something was wrong. ... behavior starts to be the norm to everybody, and nobody thinks things are that far off the mark; or they do, but they are uncertain and unsure what they can do."
A better name for the culture in the Luzerne County juvenile court was intimidation. And is there anything sadder than a bar association president comparing silent lawyers intimidated by a judge to beaten dogs? Dogs aim to please. Dogs don't understand what is going on. And dogs don't have professional obligations, which are supposed to be enforced by a disciplinary system.
The only behavior that is supposed to be normal to a lawyer is behavior that follows the law, the constitution, and the rules of professional conduct. If they face behavior that does not follow these laws and rules, they are obligated to report it. Junior lawyers are obligated to report it to senior lawyers. Senior lawyers are obligated to report it to the appropriate authorities.
They might even discuss the matters among them and stand up to the judge in court. Yes, it's dangerous for one lawyer to do it. But a few lawyers or a district attorney's office should have nothing to fear. All it takes to end such practices is a show of minor force. A judge can, as these judges did, get one person moved out of a position. But they cannot do anything about a group of lawyers. Even a small group of lawyers trumps a judge.
Local Government Ethics
What does all of this have to do with local government ethics? The same culture of intimidation exists in local governments with poor ethical environments. And the same failure of lawyers to join together and stand up to it exists, as well.
Lawyers do not have the same obligations in local government that they have in courts. Therefore, their unwillingness to stand up for ethics in court does not bode well for their willingness to stand up for ethics in local government.
When I was involved in trying to stop my town government's games with the budget, failure to bid out contracts, and culture of intimidation, I wrote to twenty-five lawyers in town, detailing the government's conduct and asking them to meet together to discuss it. None of them was willing to meet. In fact, not one of them responded to my letter. Nor did one of them speak out.
The first selectman (effectively the mayor) was a lawyer, and the town attorney and his partner were involved in supporting the government, defending its worst offenders, and intimidating people themselves.
As in Luzerne County, three high-level officials were arrested, and they immediately retired rather than resign. The voters threw the government out of office. But no thanks to the town's lawyers.
There cannot be unethical local governments without the active and passive support of lawyers. I don't think there can be ethical local governments without the active support of lawyers. Please let me know if you've seen one.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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Comments
FedUpAmerican (not verified) says:
Fri, 2010-12-03 21:12
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I strongly recommend the book "The Luzerne County Railroad" in which a man writes about how his personal liberties and constitutionally-protected rights were trampled and twisted by a corrupt judge. The writer, Larry Hohol, tells his story and backs up every sordid and shocking detail with numerous pictures of newspaper articles from the Citizen's Voice and other media. After reading the book, I am now convinced that this problem of corruption isn't going to go away without a fight. Obviously having the light of exposure shed on it isn't enough to deter these corrupt officials. I hope everyone will read "The Luzerne County Railroad" and then, armed with new knowledge, take action. Let's not assume that corruption in the Luzerne County courthouse, and throughout Pennsylvania, will always exist....