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Would Your Lawyer Tell You If . . .

Posted by NOTLEGALROADKILLYET on Sunday, August 27, 2006 3:20:58 PM
OK, READERS, its time for another thought experiment about the interrelationship of attorneys and judges.  A reminder:  A major premise of this blog is that Lawyers protect Judges, Judges protect Lawyers, and no one protects the public.

For the purposes of this thought experiment, lets assume that at some time in the future, the legislature takes notice of the epidemic of long term failures of judges to rule on motions and decides to make it possible for them to be fined.

Suppose also, that the fine the legislature authorized the state supreme court to levy was three months' pay, or something in excess of $25,000.

Just to make it more interesting, suppose the legislature decided to insert a provision that the state supreme court could not fine a judge at all unless the damaged litigant specifically requested that a fine be imposed. 

The first issue in this thought experiment that should be considered is whether any attorney would believe he could continue to practice law in the state if his clients began making requests that the judges in his area of practice be fined? 

If the answer is no, as it appears to me to be, the second issue is:  "Would your lawyer even tell you that such a provision existed if by doing so he might be ostracized by judges and lawyers in his community?  As you think about this, keep in mind that a litigant wouldn't need an attorney to assist in making this kind of request in this scenario.

I like fun thought experiments, and to make this even more fun, assume that the state supreme court were authorized to keep secret the amount of the fines actually made, and even whether the judge was fined at all.

In this scenario, assuming a litigant discovered the law on his own and made the complaint, would the state supreme court have any incentive to issue any fine at all, let alone the maximum fine?

THANKS FOR PARTICIPATING IN THIS THOUGHT EXPERIMENT

It turns out that the law exists, exactly as described in this thought experiment (CRS 13-5-135 which sets the time limit of 90 days, and CRS 13-5-136, which sets the terms.  It hasn't and will never correct the problem.  Lawyers just don't tell their clients about it, even when they have to hire retired judges to make decisions.

The corollary of my "Lawyers protect Judges . . ." is that if lawyers don't protect judges, they can't expect to be lawyers all that long.
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Notes
1.  I found this law all by myself.  When someone gets motivated to learn the law involving his particular problem, they do lots of research.  It would be a mistake for a judge to blame my attorney for this post.
2.  I plan a series of thought experiments on how seriously the state supreme court takes its responsibility to discipline judges, but that is many posts away.
3.  While I knew about this law when I gave the retention commission their input, I didn't mention it out of fear it would be interpreted as a threat and thus a way to discredit me.
4.  I'd like to link the two laws, but the legislature is using frames, making it hard to figure out how to make that happen.  Go to the Colorado Legislature's site and look for the statutes.
Are we having fun, yet?
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This Has Got to Stop

Posted by NOTLEGALROADKILLYET on Sunday, August 27, 2006 12:37:51 PM
This morning, the G-T published a fawning column by Jacob Sullum on Judge Taylor's decision. 

I have been a G-T suscriber for more than two decades now, and I am likely to be one for the remainder of my life.  I love the paper. 

That said, it tends to be uncritical of judicial excesses.  A few months ago, it didn't bother to mention the inconvenient fact that Congress has the Constitutional power to limit the jurisdiction of the courts and had done so in the Hamden case.  The five liberal justices who wrote and voted for that decision had exactly zero Constitutional authority to do so, and one of the dissenting justices said as much.

The G-T was so in love with the decision that it published a fawning liberal column and then piled on with with its own editorial in support of the "decision."

When courts act outside the clear limits the Constitution has placed on them, their "decisions" only have more weight than an ordinary editorial IF the press and the people are unwilling to challenge them.  So far, the G-T has been weak kneed in that regard.

Sorry Guys
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Note: The G-T published the editorial under the title "Ruling on surveillance program a civics lesson for President" on August 27, 2005.

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If You Are New to This Blog-Cliff's Notes

Posted by NOTLEGALROADKILLYET on Sunday, August 27, 2006 12:01:05 AM
You will probably want to start at the beginning.  I am designing it like a book, trying to exhaust one area of legal ethics before moving on to the next. 

When I filed my lawsuit almost seven years ago, I had no idea how effectively even a marginally unethical attorney and/or a marginally ineffective judge could mess up one's life.  It appears that there was nothing marginal about either the opposing counsel or the judge. 

Over that period, the two of them taught me a great deal about the subject of legal ethics. 

The standing joke in the military was that the term "military intelligence" was an oxymoron.   The last two wars, at least the active combat part of them, has likely put that joke to rest.  Now, having been exposed to the legal ethics system, I can say with a straight face that the term "legal ethics" is the real oxymoron. 

While I am definitely not attempting to give out legal advice, folks who have lawsuits going might profit from reading this blog, if only to alert them to the stunts they may face from both the attorney and the judge.  I have yet to figure out how to stop this nonsense, so I would be the last to ask for advice, anyway.

If you insist on starting in the middle, I am discussing the 200 page input I gave to the local retention commission.  Nice folks that they were, they decided the judge was such an "asset to the community" (their words) that they didn't need to tell the public that the judge ignored unethical attorney conduct, couldn't make decisions, failed to rule on a motion for two years, and more.  Much of the judges conduct appears to squarely fit the definitions of unethical behavior for a judge, not to mention damaging me extensively.  At the moment, I am about half way through my input.

In an effort to be fair, I have alerted the chairman of the local retention commission and invited comments if it was felt I was being inaccurate in describing either the judge's conduct or the information I provided the retention commission.  I don't expect to get any.

While it may appear that I am attempting to impact the retention election of this judge, I am not.  I am trying to demonstrate that the whole legal ethics system is designed to protect lawyers and judges from the public, and that there is not the slightest interest in protecting the public.  This judge just happens to be the perfect foil.

Good reading!
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Taylor & Stone #3

Posted by NOTLEGALROADKILLYET on Saturday, August 26, 2006 6:53:18 PM
I love the folks at Powerline.  They are lawyers and can tear a bogus legal argument apart in a heartbeat.  I particularly liked their last sentence:

"Professor Stone is ducking his own responsibility as a prominent teacher of constitutional law in disseminating such misleading instruction."
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Geoffrey R. Stone # 2

Posted by NOTLEGALROADKILLYET on Saturday, August 26, 2006 6:31:28 PM
 It will be the practice of this blog to highlight morally or legally unethical conduct or comments by attorneys or judges found in other articles and give the post a number with a title.

In this article, Professor Stone claims that the ACLU could simply go to a court and assert that it, or its clients had standing without the need to prove it, indeed, without any way to prove it given secrecy laws.  Their lawsuit was pure speculation. 

I wonder if Stone would be making this argument if a few Colorado citizens decided to sue the New York Times for disclosing the NSA program on the speculation that they had or would soon be damaged by its revelation.  Of course, these hypothetical plaintiffs would have every right, under Stone's logic, to demand the identity of the codefendants, the leakers, before moving to a trial on the merits.

I find it disturbing that the legal profession's code of ethics allows, nay, encourages this kind of argument.  This professor is simply trying to use the courts to change the Constitution's requirement for a true controversy when the Government is a defendant.

Stone's judgment on the proprietary of Judge Taylor's conflict of interest is wrong.
The legal profession cannot be trusted to make and enforce its own ethics rules.
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I Wish This Would go Away

Posted by NOTLEGALROADKILLYET on Saturday, August 26, 2006 4:49:13 PM
Despite the predictions of many of my friends, it seems we will have an election in D-11.
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So, What's New?

Posted by NOTLEGALROADKILLYET on Saturday, August 26, 2006 3:40:44 PM
Gee, a couple of Springs councilmen have just discovered that the Police Department was ignoring the intent of council.

If you folks aren't quick enough to figure out that the police have been operating without supervision for years and will do exactly what they want, you aren't quick enough to be on the council.

Let's see, six months ago it was the evidence destruction scandal, and the public discovered, at the same time the council discovered that the police sold the council on building a million dollar plus evidence building, but never planned to use more than half of it for evidence.  When the police start throwing evidence out on unsolved murders, things are out of control.

I wonder if the "band of brothers" speed traps are directed by council?  We would be better off if half of those cops were out looking for criminals.  I guess the 1/4th per cent sales tax was necessary so that the city could fund speed traps to make more money!  Maybe we could get another evidence building built and use half of it to house motorcycles.

It is obvious to me that when we replace our recently retired Chief, we should find new blood outside our current force.  If we don't, in six months to a year, we will have someone on council expressing surprise once again that the department was circumventing or ignoring the will of council.
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It is so much fun to have one's own blog.  I'll never send a letter to the editor again.

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An Epidemic in Colorado

Posted by NOTLEGALROADKILLYET on Saturday, August 26, 2006 1:03:38 AM
 This last Spring, the Denver Post had an article describing how litigants were hiring retired judges and justices to make decisions in cases where the assigned judge would not make a decision and finalize the litigation.

One of the issues I brought to the attention of the retention commission was that my judge had failed to rule on a 2003 motion, and that, in May, 2005, I specifically reminded him that he had not ruled and told him the defense was using his failure to rule as a shield.  He still did not rule, and in its January 2006 motion to reverse the default judgment, the defense admitted that it had been using the judges by then 28 month failure to rule as a rationale for withholding discovery.

In an earlier post, I described the judge's reluctance to rule on our motion for a default judgment.  It took him more than three months to rule after the first 15 day time limit for the defense to answer ran out.

Of course, the retention commission thought that information too unimportant to bring to the public's attention because the judge was "an asset to the community."

I did not realize how epidemic this failure to make timely rulings was until I examined the judicial retention commission's statistics for all Colorado judges.  On average, 20% of the attorneys who responded to a questionnaire about a judge, any judge, stated that the judge was slow to make decisions.  For some, it was 40%!

Despite the fact that it is unethical (Canon 3(B)(1) states in part: "A judge should diligently discharge his or her administrative responsibilities..."), retention commissions across the state turned a blind eye to this performance.

This is a tax, and a heavy tax on litigants.  I believe that 80% of my litigation expenses can be traced to either the judge's failure to make timely rulings or his failure to make any rulings at all.  You will not hear the CBA complain or advocate change because this tax is paid directly to its members.

If the citizens of Colorado want Tort Reform, want to cut their litigation burden, the very most effective way is to take ethics rule making and enforcement away from the supreme court.




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Judge Taylor #1

Posted by NOTLEGALROADKILLYET on Friday, August 25, 2006 10:34:07 PM
I don't just have to focus on a local judge to find unethical conduct.  Thanks to Powerline, my favorite blog.

Of course, neither the ABA or the CBA believes that judge shopping is immoral.  That is why the legal community cannot be trusted to make and enforce its own ethics rules.
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Black on Blue

Posted by NOTLEGALROADKILLYET on Friday, August 25, 2006 8:44:38 PM
They are looking for the bug that does this.  I plan to be patient with them, please be patient with me.
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Comments Are Turned On

Posted by NOTLEGALROADKILLYET on Friday, August 25, 2006 5:26:47 PM
The problem with starting a new blog on a contentious subject, and this will be a contentious subject, is that the blogger needs to get a bit of a head start before allowing the wolves a chance at him.  I initially did not notify anyone that the blog existed, although I did tell some that it would exist.

I am trying to change the legal system.  An important part of this blog is education.  I am not a lawyer, and there may be aspects of the law that I don't understand or flat out misunderstand.  If I make a mistake, I want people to feel free to hammer me, though preferably not with a lawsuit.

If I make a factual error, I will be quick to admit it, apologize, and move the subject on.  I consider myself a very ethical person, which is why what I see going on in the legal profession is so disgusting.  I will try very hard not to make factual errors.

I have been critical of the local retention commission's judgment, but tried to praise their willingness to serve.  Tonight I will be sending the chairperson an email asking that the members be alerted to the blog.  I sent them an enormous amount of material.  I tried to organize it so that it was understandable, but I may have failed.  If they find that I am stating that they got something, and they think they didn't, or they didn't understand what they got, I want them to say so.  I am probably a third of the way through the issues involving this judge's management of my litigation that the commission should have resolved before issuing a recommendation, but they will know that.

Unfortunately, I cannot, and will not extend the same courtesy to the judge.

If anyone with knowledge of my identity makes a post, I ask them to honor my request not to divulge it.  I am having enough problems getting my lawsuit to trial that I don't want anyone trying to claim that I am trying to poison the jury pool.

As to the elections I would like to influence, the most important to me is Beauprez'.  I have no interest in influencing the judge's retention election.  The retention commission gave the judge high marks, and the public should act on them.

Thanks for visiting!
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Is There a Blog God???

Posted by NOTLEGALROADKILLYET on Friday, August 25, 2006 2:42:47 PM
While the posts that are marked in black over blue are posts that I suspect might have wide interest if the readers understood the context, to my knowledge, I am not doing the marking.

I find that format difficult to read and probably impossible to print.  I'd sure like to understand how it is happening.
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I Can Get My Parole Officer to Write a Recommendation

Posted by NOTLEGALROADKILLYET on Friday, August 25, 2006 12:36:46 PM
Last evening, as I was stumbling around the internet to find links for the last post, I happened onto an article about the Civil Rules Committee and the Rules of Criminal Procedure Committee.

Those two committees propose court rules to the state supreme court.  As I guessed, its members are all lawyers and judges.  I was surprised to see the following comment "Members of the public also may submit an application to serve on the Committee, although no one ever has."

The words "although no one ever has" were almost like waving a red flag in front of me.  If I really do want to reform the legal system in small and big ways, and I really do, I have an obligation to apply.

Here is a copy of the body of the letter to the Chief Justice that I am dispatching today:
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Your Honor:

I wish to apply to serve as a public member of the Civil Rules Committee and the Rules of Criminal Procedure Committee.  I note that those committees have never had a public member but that members of the public can apply, though none have.

I have unique qualifications, as you will discover.  You may consider them disqualifications, and if so, so be it.

I have a blog, which I sign off as "notlegalroadkillyet."  It is at collandp.townhall.com.  It is new enough that the legal community most likely hasn't discovered it, which is fine for now.

While my blog is probably as critical of the legal ethics system as any public discussion you may ever see, I hope that you will come to agree that it is a reasonably accurate assessment of the current state of Colorado ethics law.  Because your Court administers all aspects of ethics rule making and enforcement, it can not and will not escape criticism.  I also intend to be critical of certain of your Court's rulings and actions, some of which I view as morally unethical.  Since you make the rules, they are not legally unethical, of course.

I have an active lawsuit, nearly seven years old.  I have received an extensive and expensive education from a judge and an attorney as to how impotent the court and ethics rules can be.  At this point, I am just going through the motions.  If the public records are any indication, the Defendant has successfully put his assets out of the court's reach, so even if I could get disclosure and proceed to trial, a judgment of any size would be meaningless, and attempts to collect just another drain on my assets.  As my blog already states, I have lost hope that the judge will treat me fairly and any fear of the consequences of making him angry.

It is my belief that the court rules are partially to blame for what has happened to me.  Neither the judge nor the attorney seem to have any fear of violating them, which means they are not self enforcing, or at least not effectively self enforcing.  Further, I have discovered that they prevent a litigant from protecting himself from obviously unethical conduct by an attorney.  You have no safety valve in your system.

This experience might make me a valuable member of your Committees.

You might choose not to select me because I hope eventually to submit an initiative to amend the state constitution to strip your Court of much of its rule making and enforcement powers, leaving your Court to do only judicial review.  It is a conflict of interest, in my opinion, to have members of the legal profession able to make rules that protect lawyers while leaving the public unprotected, and that is exactly what you have done, intentionally or not.

I also will be writing a post promoting term limits for judges.  I hadn't intended to do so, or even vote for them, but the local retention commission decided that since my judge is "an asset to the community," they didn't need to inform the public of the events or the implications of the events in my lawsuit.  Your entire profession is out of control and no mechanism exists to protect the public, not even retention commissions.

This is a serious application.  I will be most happy to provide a short resume and references, as well as submitting to an interview, if you decide not to disqualify me based on this letter or my blog.  I probably should tell you that I am far more laid back in person than my writing might indicate.

/signed/
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Court and Ethics Rules Can be so Inconvenient

Posted by NOTLEGALROADKILLYET on Friday, August 25, 2006 11:38:12 AM
Colorado Rules of Civil Procedure (CRCP) Rule 251.4:

"A judge has a duty to report unprofessional conduct by an attorney to Regulation Counsel pursuant to Canon 3(B)(3) of the Colorado Code of Judicial Conduct.  No action taken by any judge pursuant to Canon 3(B)(3) shall in any way limit the power of the reporting judge to exercise the power of contempt against an attorney, nor should the reporting of such matters to the Regulation Counsel be used in lieu of contempt proceedings."

If these words have any meaning, a judge who discovers unethical conduct has no choice but to both start contempt proceedings AND report the issue to Attorney Regulation.

Canon 3(B)(3) of the Colorado Code of Judicial Conduct:

"A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware."

Over the past three years, as I have become more and more disgusted with opposing counsel's conduct, I have researched ways to stop it.  I have discovered that, while I might prove in a court that the attorney had intentionally attempted to damage me using unethical tactics, I will never be able to take him to court, thanks to the protection ethics rules offer attorneys.  I have also discovered that if I were to try to complain to Attorney Regulation, they would tell me that they had no jurisdiction-that only the trial judge has jurisdiction.

It seems that the only way a litigant can seek and get protection from unethical conduct is through the trial judge. 

I tried.  In May, 2005, I asked, among other things, that the judge in my case  "Direct the defense attorney to review the Colorado Code of Professional Conduct and provide the court a written promise not to violate either their spirit or letter again in the matter before the Court."

The trial judge couldn't bring himself to do that, and the misconduct continued.

I would love to tell you that, when I provided the retention commission this information, including my observation that if a trial judge refused to protect a litigant from unethical conduct, the litigant was totally without protection, they felt obligated to inform the public that the judge had a three year record of refusing to protect me.

Nah!!!  This judge is "an asset to the community."

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It may be beginning to sound like I am campaigning against this judge.  I am not.  I want to expose the way the system works to the public, and the events I am describing are very familiar to me.  I know the documentation exists to back it up, most of it in the public record.  Courts have ways to bury their mistakes, so finding another example to use to make my points isn't that easy.  Both the trial judge and the defense attorney will doubtless be anxious to have this record sealed.
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A Debate

Posted by NOTLEGALROADKILLYET on Thursday, August 24, 2006 9:05:02 PM
I was lucky enough to see the debate that followed the sign waving.  It occurred in a small auditorium on the 6th floor of Children's Hospital.

It is hard to call what I saw this morning a "debate."  Rather it was a dual question and answer period long on answers with few questions

The audience was equally friendly to and appreciative of both candidates.  It was mostly professionals. 

If the moderator had an agenda, it was to try to get both candidates to commit to spend more money on "children."  The nature of the questions made the cynic in me suspect that he would not have been displeased to turn the whole thing into a bidding war between the candidates.

Bill Ritter was more than willing to play that game.  My guess is that he spoke between 20 and 30 minutes total-I didn't time them.  In that period, he gave the Democratic code word for spending, "investment" no less than 28 times.  I wish I had counted the number of times he mentioned C & D.  I voted for C & D, and I don't yet regret that vote, but if Ritter keeps talking tax and spend like he did today, including multiple mentions of "Colorado Promise," it won't take long.  (I also voted for Amendment 1, and don't regret that vote, either.)

Ritter's biggest mistake, in my opinion, was that he tried to hammer home the difference in the tax and spending policies he would employ and Beauprez' by stating that Beauprez had a zero rating from the Children's Defense Fund, as if that were bad.  Beauprez was more of a gentleman about that than I would be.   If there is one single bit of information that could get me to vote for a candidate, sight unseen, it would be a low rating from CDF.  Anyone criticizing a candidate for a low CDF rating is telling the world that he plans to be a big spender. 

The biggest surprise to me was that someone must have told Ritter how distracting his little pasted on grin had been on the KBDI debate.  It was totally gone, which allowed me to listen to the questions and answers rather than watch that grin.

The best speech of the morning was Beauprez' closing speech.  Nothing Ritter did equaled it
 
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For those outside Colorado, Amendment 1 was Doug Bruce's 1992 quite successful attempt to curb the growth of government.  Some thought it a bit too successful, and a year ago, the voters narrowly passed Amendment C, which is a 5 year vacation from Amendment 1.  D Didn't pass.  Governor Owens was supporting passage, which divided the Republicans.
It was a gut wrenching vote for me and my wife, so difficult that we agonized over it for weeks before deciding to support it.  My guess is that the same happened in many Republican households, though with different outcomes. 
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