The Many Ways in Which Lawyers Can Do Nothing About an Unethical Environment

Anonymous

Thu, 07/08/2010 - 05:22

Complicity and Knowledge

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 <a href="http://www.cityethics.org/node/689" target="”_blank”">my blog post on this situation</a>). 
 
<a href="http://www.pacourts.us/NR/rdonlyres/6A64EA29-B7FD-4468-8CD1-075548469ED…; target="”_blank”">The Interbranch Commission
on Juvenile Conduct's final report</a> 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
<a href="http://www.jcjc.state.pa.us" />Pennsylvania Juvenile Court Judges' Commission</a>. 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 <a href="http://www.judicialconductboardofpa.org/Index.html" target="”_blank”">Judicial
Conduct Board</a>, 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 
<a href="http://www.jlc.org/" target="”_blank”">The Juvenile Law Center</a> 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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