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Should This Attorney be Disbarred? You be the Judge

When it comes to the subject of ethics in criminal cases, ethics enforcers are, and probably should be, somewhat less stringent as to the tactics an attorney can use to defend his client.

However, there are limits.  For example, society (and even the legal profession) frowns on lawyers who smuggle guns into jails to assist their client's escape attempts.  Likewise, the ethics rules supposedly discourage attorneys from knowingly presenting false evidence or allowing false testimony.  Of course, attorneys get around these last two restrictions by not allowing their clients to tell them that the evidence or testimony is false.  (It is rumored that the Hear No Evil, See No Evil, and Speak No Evil monkeys were modeled after a defense attorney intent on seeing his guilty client walk.)

I have a question for the legal establishment.  Assume that Congress has the constitutional authority to limit the US Supreme Court's jurisdiction on a certain issue, and the Court itself has recognized that authority in Ex Parte McCardleAssume also that Congress limited to the US Court of Appeals the jurisdiction on a certain matter, and stated in the law that other than that court, "no court, justice, or judge shall have jurisdiction to hear or consider" the matter being litigated.

My ethics question is:  Should an attorney who knows the law, the intent of Congress, and the precedent and in spite of that knowledge takes his case to a court that lacks jurisdiction be brought up on ethics charges, the court's decision notwithstanding?  

The answer to this ethics question is that, of course, no one will file an ethics charge against that attorney.  A major theme of this blog is that the legal ethics system is totally broken and will remain so until it is put in the hands of someone other than the legal establishment.

The assumptions are taken from the recent Hamdan US Supreme Court decision*. 
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*I italicize the word "decision" because a court without jurisdiction cannot legally make a decision.  I think that legal historians will either celebrate these five justice's liberation of the Supreme Court from the constraints of the Constitution or rue that action.  I hope the latter, but fear the former.
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Oh, The Irony

One of the Friday night KBDI shows I like is Aaron Harber because although he is a former Democratic activist and statewide candidate, he is a model of evenhandedness. 

This past Friday his guests were former Justice O'Conner and Justice Breyer.  They were arguing for the independence of the courts, and that people shouldn't attack the courts for their decisions, even if they are wrong.  The program was full of irony for me:

1.  That evening's news was about how Senators Warner, McCain, and Graham were grandstanding against the administrations effort to fix Hamdan, more a political editorial by five justices (including Breyer) than a lawful decision made by a court that had jurisdiction.

2.  I had just spent a good part the day writing a post suggesting that the one common ground I had found among Colorado Republicans was a disgust with the courts and that a frontal attack on the Courts might be a good election year tactic, both this year and in 2008.

3.  One reason that the courts are out of control, and they are out of control, is a LACK of criticism by the media.  In Colorado, information about judicial discipline is not available to the press, and the courts are deflecting press inquiries with a $20/hour 75 cent a page copying charge for public documents.

4.  The rationale for the existence of this blog is that there is a crying NEED for criticism, a NEED to cut the feathers of a court system that believes it can operate outside the law and the norms of society and shouldn't be criticized for doing so.
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Just a Thought on John McCain

I'm not sure what it is, but I think the USNA tends to draw folks who are not team players.

It occurred to me today that I'm starting to see McCain as a younger Republican version of Jimmy Carter.  Both were USNA grads.  Carter thought only of his human rights campaign and McCain is pushing terrorist rights with the same vigor.  I'm not all that impressed.
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Amendment 38

I had no idea what I would recommend to my readers on Amendment 38 until tonight's Independent Thinking show on KBDI, to be repeated Sunday.

Beauprez has come out against it, which I now think is an unfortunate decision.

Anyone who watches the Independent Thinking rerun on Sunday, and I strongly encourage you to do so, will see Doug Campbell, the proponent discussing the issue with Rick Reiter, of Coloradan's for Responsible Reform, an opponent.

I really dislike deception in politics.  When politicians practice deception they are trying to steal the votes of the unwary.  I don't believe Reiter made a single argument that wasn't highly deceptive. 

Start with the name of his organization.  He isn't, and never has been for reforming the initiative system, but he has opposed it three times.  That's deception.  He falsely claimed that the PRA would require taxpayers to fund printing petitions and loudly proclaimed that taxpayers shouldn't be funding petitions.  When corrected he claimed that the stipulated reimbursement wouldn't cover costs without having any idea if that were true.  That's deception.  He claimed that making it easier to petition cities and other government entities would vastly increase petitions.  Loveland, it turns out, only requires 300 signatures and isn't inundated.  That's deception.  He claimed that there would be too many citizen laws each year but was countered with the fact that the legislature passes 300-400 a year.  That's deception.

I am convinced that the kind of reform Reiter would like to see is repeal of the initiative system completely.  He made a big point of complaining that citizens whose issue was voted down shouldn't be allowed to tweak their petition and try again.  No one called him on it, but that is exactly what legislators do when their bill doesn't pass the first time.

If Reiter is the best opponents can do, there is no reason not to support 38.  Beauprez is wrong.  Sorry.
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Designed to Fail-Part 1

This is the second in a multi-part series (introduction) that is intended to support the view that the Colorado Supreme Court has intentionally designed the legal ethics system to appear to protect the public when it does not.  I'd be willing to use the word "inadvertently" if I hadn't found so many examples of a broken system.  Here goes:

One of the most potent weapons that an unethical attorney or judge has to prevent victims from making a complaints is the threat of a lawsuit.  I am peripherally aware of a situation where a citizen was vocally unhappy with an attorney's performance. The attorney's reaction was apparently to threaten in writing to put the citizen in a position where he would be living in a cardboard box!

While it is certain that an ethical attorney could put someone in a cardboard box, I can sadly report that even the most unethical attorney in the world can do the same.  All he has to do is file a lawsuit and use it to financially bleed the citizen to death.  He doesn't have to win and doesn't expect to win, he just has to keep the process going.  That is power and it discourages complaints. 

Judicial ethics canons and court rules appear to REQUIRE that judges report unethical conduct by both judges and attorneys.  It DOESN'T happen.  I've made post after post and will make many more describing what the judge in my lawsuit knew about apparent unethical conduct and when he knew it, and yet he has taken no action.  So, WHY would that be?

It turns out that the state supreme court has made a conscious decision that judges who follow their ethics canons and court rules WILL be subject to cardboard box lawsuits.  On the other hand, if a judge chooses to ignore court and ethics rules and NOT report the attorney, he might get an ethics complaint lodged against him.  As it happens, the state supreme court can dismiss the complaint, order the citizen making the complaint not to reveal that fact, and fully conceal its action from the public.  Don't believe it?  It's in the Constitution.

Why be so distrustful of the state supreme court?  All one has to do is compare the Colorado judicial ethics canons with the American Bar Association model canons.  The Colorado canon's are loosely based on the ABA canons, and where there is a difference, it has to be because the state supreme court made a conscious decision to implement, or not to implement the ABA model.

Here is the Colorado Canon 3(B)3: A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.

The ABA model contains a similar requirement, though more detailed.  It also contains one additional paragraph that appears to be missing from the Colorado Code:  3(D)3) Acts of a judge, in the discharge of disciplinary responsibilities, required or permitted by Sections 3D(1) and 3D(2) are part of a judge’s judicial duties and shall be absolutely privileged, and no civil action predicated thereon may be instituted against the judge.

So other states prohibit cardboard box litigation against judges, but Colorado does not appear to do so.  That is why this series is named "Designed to Fail."  Part 2.
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"Messed Up Courts"-Building Block Post

This is a building block post which I will likely use repeatedly because it sums up serious problems with the courts in just a few paragraphs:
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In Colorado, the state supreme court declared the courts "a part of the legislative process" as they were justifying why they and not the legislature had done congressional redistricting as they struck down a redistricting bill that the legislature wanted to substitute for a court ruling.  That will eventually be used as a precedent as the courts try to circumvent the democratic process and substitute their judgment for the judgment of the voters.  The state supreme court recently took five months to decide a 40 word initiative consisted of two subjects when linguists couldn't find but one.  Here in Colorado also, a term limits initiative is being run to limit the supreme court out of office because it is so openly partisan, and for no other reason.

Nationally, we have five justices on the US Supreme Court who seem to always be a part of really strange rulings that ignore the restraint that the Constitution placed on government. 

I don't believe anyone has ever tried to educate the public as to how convoluted the logic used to strike down term limits was.  The subject was discussed at the 1787 Constitutional Convention as part of the Virginia plan.  A controversy that appears before the supreme court can't have a better pedigree than that, nor seemingly can the supreme court have an easier job than simply reaffirming the decision the founders made.  That's not what happened!  Eventually, I will write a series on that decision.  It won't be pretty.

More recently, the same five justices were involved in Kelo and Hamdan.  In both cases they knew they were skating on constitutionally thin ice, They gave the evidence themselves when they provided legislative escape clauses.  Something is either unconstitutional or it is not, and legislatures, and for that matter the courts, have no power to make changes other than through the amendment process.  Courts which make decisions granting legislative escape clauses are themselves trying to legislate.
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Beauprez Disclaimer-Building Block Post

This is a "building block post" that I expect to use more than once.  It cuts down on my need to write and your need to read the same thing over and over:
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Before I go farther, I want to reemphasize my role as a simple volunteer in the Beauprez Campaign.  I see my job as one of trying to make the paid staff's job easier.  I may carry this to extreme, as if I am using the soda machine and a paid staffer walks up to use it, I step aside.  I've told the true story of how I came to meet John Marshall, the campaign manager after two months of working there.  I am in no way an insider, and I don't want to be.  I don't give, and I don't feel qualified to give any advice.  I could, and very likely would write this and other posts if I had never worked there. 
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An Alternate Political Strategy

I agree with Hugh that anything that reminds the electorate of Kelo is a good thing.  I'm going further.

If I were running a campaign, nationally or statewide, I'd be running hard against the lawyers and judges.  To me, they have made themselves a very easy target that the Democrats would have to defend.

When I sit down to make political phone calls each day, I set two personal goals, and I usually meet both.  I try to convert two voters a day from either undecided or opposed to the point where they will vote for my candidate.  I also try to recruit two volunteers a day.  I actually consider myself to have failed for the day if I haven't done at least that well.  If I were better at what I do, or didn't work bankers hours, I'd have higher goals.

Modesty aside,  I have a pretty good record at converting voters.  The tool I have found most effective is to share my moral outrage at the courts.  I don't even have to go into detail.  I tell them that I drove 60 miles that day to make phone calls because I think the courts are messed up.  Invariably, they agree.  This strategy works whether I am talking to a social liberal about why he/she should vote for a social conservative, or whether I am talking to a conservative Republican or Independent who is mad enough at the national party not to vote at all.

I admit that I discovered this by accident early this summer when I was searching for common ground with a voter I didn't want to lose to the Democratic Candidate.  It worked so well that I have continued to use it. 

Because I am a volunteer, I can't and won't give advice to my campaign.  

However I think what I have learned applies across the board to all statewide and national candidates.  Republican candidates should talk about the "fouled up court system" and what they can do to fix it.  Congressional candidates should be talking about doing "legal ethics reform", not tort reform, a very tired term.  If we had a legal ethics system that worked, ethics reform would keep strange tort cases from ever being filed.

The term "activist judges." is worn out.  Candidates should talk about "unethical judges" and "unethical trial lawyers."  There are many examples.  More appear in the news daily.  When an opponent's 527 hangs an untruthful commercial on a candidate and the candidate must discuss it, he should talk about the attorney who approved it and observe that if the legal ethics rules actually protected the public, he would be disbarred, as I did

The public needs to know that the liberals think precedent should apply to conservatives but not to themselves.  Imagine the Hue and Cry that would be raised if Roe were overturned.  Sadly, the folks raising the Hue and Cry would be the same folks who celebrated Hamdan but conveniently ignored the stare decisis implications.  Congress gave exclusive jurisdiction to the D.C. Court of appeals, as the Constitution empowers it to do. 

Borrowing from NRO:  In a case which has been reported as the Court’s rebuke to the nation’s commander-in-chief for acting “above the law,” the Court’s own lawlessness should not go unnoticed.

Just as Clinton is famous for saying "It depends on what the meaning of is is"  Justice Stevens probably joked as he wrote the opinion "it depends on what the meaning of 'exclusive' is."  Pure arrogance.

This blog is based on the observation that "Lawyers protect Judges, and Judges protect Lawyers, but no one protects the public."  That lays out the crux of the problem in 13 words, and appears to be a powerful political theme.

I think it is still possible, and even easy to win elections that might otherwise be lost.  Go after the courts.   They've earned the attention.

Beauprez Campaign Disclaimer
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Save the Battleships

Ollie North is correct.  The military and unfortuantely congress has a bad tendancy to try to justify the newest, most costly military systems by getting rid of weapons systems that are still very effective.

I wonder how many of us remember that the Air Force wanted to leave the A-10's home from the first Gulf War, not because they were ineffective, but because it wanted to promote the F-15 to congress as a ground attack weapon.  Fortunately, that war was run by the Army.  If I remember correctly, one A-10, flown by an AF Reserve pilot took out almost an entire battalion of Iraqi tanks on a single mission.  Other than with a small nuke, that is a performance no F-15 could begin to match.
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Big Six Oh

Time stands still for no man.  In the next few days I will hit the big 60.  The hair is thinner, and the body doesn't respond as well as it once did.  I have all the things someone who is approaching 60 could want. 

I somehow suspect Bill Clinton isn't quite as sanguine about hitting 60 as I am.  When you get that old, the interns can all outrun you, even the overweight interns. 
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I am Most Impressed!

It was with some trepidation that I wrote the last post.  Some folks have no sense of humor, and if townhall had been run by that kind of people, I am sure I would have gotten at least a warning, and perhaps even been shut down.

Not only did that not happen, but I got an email congratulating me on the post and telling me that it was being linked on the home page!  That is very impressive, not the article, but the fact that it was welcomed as part of a free and open debate.

I have been watching Hugh's column and he has put up a very good, very convincing argument for his position. It was ably seconded by Dean Barnett.  I regret that this argument was not advanced  much earlier as it would have better educated voters. 

My concern is, and will remain that advice spill over from RI into other states, including Colorado, can't be prevented; is occurring; and we are training conservative voters that it is ok not to vote, or even that it is ok to vote Democrat.   

Again I complement townhall and Hugh for giving me the freedom to say so.
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OK, Hugh, Which Advice do We Take?

Medved's blog alerted me to take a good look at Hugh's column.

Here is Hugh's latest advice, which I find very sound:  "Every vote for any Congressional Democrat is a vote against victory and a vote for vulnerability."

However, just a few hours earlier, he said:  "The Rhode Island GOP voters who voted for Steve Laffey would be well advised to vote for the Democratic nominee in November." 

I didn't put this up to embarrass Hugh.  Rather, I put it up to try to illustrate that the stakes of insisting on conservative purity are much higher than we will ever care to bear.

Because I am a Beauprez volunteer (though if I used the same standards that Hugh insists on-of only voting or working for someone I agree with completely-I wouldn't be), I am holding my tongue until after the election.  

I am spending about $2,000 in gas money this summer and fall, and hundreds of hours to make literally thousands of phone calls.  I know first hand the kind of damage Hugh and others with their "my way or the highway" attitude are doing to the Colorado Republican electorate, both conservatives and moderates.  Hugh's attitude is so damaging, so destructive, so disrespectful of my efforts that I find it hard to express myself in the calm civil tone that I have tried to establish for this blog. 

I said in a post that "We Republicans are training voters that it is ok to go to the polls and not vote races because this party leader or that party leader is unhappy with the outcome of a primary.  Eventually we will teach them not to vote at all."

What I didn't say was that that has already happened.  Let me say it now.  That has already happened!
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So You Want to Avoid Political Calls?

For the life of me, I can't imagine why people would try to avoid talking to someone like me on the phone.  I am providing a valuable service, an opportunity to go around the liberal Denver newspapers, and around the the 527 ads that are only loosely based on the truth, and perhaps not that.

I find that at least half of the folks who will talk to me and initially tell me they won't vote for my candidate totally misunderstand his position on their hot button issue.  Most recently, someone had bought into clear peak's assertion that Bob had voted for a pay raise for himself, when the raise wouldn't take effect until 2010*, and also that he had voted against a "small bonus" for soldiers that would have stripped funds from Iraq operations.  That bill was so defective that even Murtha, the most vocal Democratic war opponent voted against it.

Even so, if you are determined to walk into the voting booth as ignorant as a stone because you don't want to trouble yourself to risk learning the truth about the issues, then here is how to do it:

Even though the phone laws allow politicians to ignore no-call lists, many campaigns, including mine, won't intentionally call around a no-call message.  It costs you a little money, but go to the phone company and have their service installed.
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*Since the most recent Amendment to the US Constitution prohibits Congress from raising its own pay before an intervening election, it would have been Unconstitutional for Beauprez to do what Clear Peak accused him of doing.  Doubtless some attorney reviewed and approved a commercial that was intended to mislead voters and misdirect votes.  As far as I am concerned, that is highly unethical behavior, which should earn disbarment.  Of course, the state supreme court disagrees.  Maybe we can change that.
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Quote of the Night

From the wanna-be Democratic Senate Majority Leader to Jim Lerher:  "If Chafee had lost, it would have been all over," and he wasn't talking about the risk that there would be a Conservative RI Senator.

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I Had Hoped

Tonight I had hoped to be writing both Part 4 of "a low risk attorney scam" and Part 1 of "designed to fail."  I am just too tired to do it, and may not get to it for several days.   Here is a thumbnail, though:

Part 4 of LRAS will examine the RPC (Rules of Professional Conduct) rule prohibiting dilatory practices.  That rule has been in RPC for more than a decade, and yet the state supreme court has yet to define the term.  Since the supreme court requires complaints involving this rule to go through the trial judge, for reasons that totally escape me, it apparently has never had a case on the rule presented to it.  I will likely make this post and Part 3 a part of the "designed to fail" series, and deservedly so.

Part 1 of DTF will compare the Colorado Code of Judicial Conduct with the ABA model code and determine if the fact that the state supreme court has withheld an immunity from lawsuit for judges who report unethical attorney and judicial conduct to is intended to discourage those kinds of reports.
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