Legal Ethics and Other Oxymorons

True law, wrote Sir William Blackstone, is fixed, uniform and universal. That is, it is not dependent on time, the person to whom it is being applied, nor the place in which it is being applied. It applies at all times, to all persons, and in all places. Today, what passes for law is none of those. It ebbs and flows depending on who is involved, where it is raised, and who sits on the Supreme Court. Who sits on the Court in turn depends in large measure on which political party holds the White House when a vacancy occurs on the Court.

In these days leading up to the hearings over the nomination of Judge John Roberts to the High Court, it comes as no surprise that the airwaves are abuzz with talk of the what makes one an activist judge or a respecter of judicial restraint, and how the courts should operate. One aspect of our judicial system that has not received much attention during these debates is the area of legal ethics.

Sadly, “legal ethics,” like “working vacation,” “tax return,” or even “uniform law,” has become just another oxymoron. It was not always like that. The portrayal of Atticus Finch in “To Kill a Mockingbird” was no doubt fictional, but it nonetheless suggested a day when lawyers were respected, and the profession held in high esteem. Today, when a stand-up comic bombs and needs a sure-fire laugh, he pulls out a lawyer joke.

The legal profession, and the courts, are self-governing. That is, they police themselves. When rules are respected and morality prevails, this system works fairly well. When, however, the people have become largely irreligious, and morality is deemed a dispensable commodity, leaving the courts to govern themselves is a bit like leaving the foxes in charge of the henhouse. It is, in a word, a disaster.

Consider the following true story: a group of peaceful pro-life protesters were the targets of a new city ordinance calculated to shut down their protest outside a local abortion clinic. After the ordinance was enacted, the protesters were cited and tried criminally. Two protesters not present on the day the citations were issued sued in federal court to challenge the constitutionality of the ordinance. The federal judge assigned the case, having never met the protesters or even seen their attorneys, entered a judgment in favor of the city.

In addition to the drier legal analysis, the judge took it upon himself to pepper his opinion with gratuitous comments mocking the religious beliefs of the protesters. Though admittedly colorful, his language ridiculing the beliefs of these sincere citizens engaged in the time-honored practice of civil disobedience was wholly inappropriate and unnecessary to his decision.

The case was appealed, and a formal complaint was filed against the judge alleging ethical impropriety. The judge then wrote a letter to the appeals court secretly asking that the case be returned to him so he could “correct errors” in the original opinion. This ex parte letter constituted another violation of the ethical rules governing the courts. But rather than chastising the judge for his obvious attempt to improperly influence the proceedings on appeal, the appeals court acceded to his request and sent the case back to him. The appellate court also put a hold on the original ethics inquiry.

The lower court judge, seizing the opportunity, hastily entered an amended order removing the offensive language but otherwise identical to his original opinion.

How do I know this story is true, you may ask? Simple: The protesters are our clients.

This apparent cover up of the judge’s religious discrimination raises many questions. Would the ethics complaint have been taken more seriously had the judge insulted African-Americans, or homosexuals, instead of Christians? Do rules against discrimination apply to federal judges the same as to other citizens? Could a federal judge escape punishment for robbing a bank so long as he returns the money upon someone exposing his wrongdoing? Should the courts be left to police themselves? Is our system hopelessly broken?

We did not reach this point of ethical incoherency overnight, of course. It has taken years for our gradual erosion of basic morality to degenerate to this level. But reach it we have. Few who find themselves embroiled in litigation today view the process with hopes of perfect justice prevailing. The media is quick to suggest that a particular judicial decision was influenced by the politics of the president who appointed the judge.

The intense scrutiny of Judge Roberts’ personal and political views bespeaks a nation wary of the lack of fixedness in the law. It is the tragic but not surprising result of a history of judicial activism and disrespect for the rule of law. It is the inevitable byproduct of a Supreme Court that tramples on the authority of Congress and the state legislatures to regulate in the realm of morals and that reverses even its own decisions with impunity. We reap what we sow.

A return to a proper respect for law might begin with appointment to the Supreme Court of a man who practices judicial restraint, like Judge Roberts. Judicial restraint, after all, is nothing but a short hand way of describing a judge who himself respects the rule of law. And whatever else may be said about Judge Roberts, his opinions resound with respect for the law.

Who knows? In time, we may even reach the point where religion is again treated with respect rather than ridicule.

The fact is that as long as the judges ARE lawyers the system is broken. How are you to sanction the guy who you eat lunch with or plan on working for after you retire? And as long as we're electing lawyers to the legislatures we're shooting ourselves in both feet.

There needs to be in each county a committee of folks who AREN'T on the bar that review complaints of ethics violations. Preferably really bitter Helen Thomas type hags.

What we need to do is ban lawyers from holding public office.

They can hold office. Just give up their license to practice law forever and they are on the ballot.

Regarding respect for religion. It gets about as much as it deserves. Religion is a very mixed bag.

See, I don't have as much of a problem with them legislating--heck, quite a few of the folks that wrote the Constitution and the Declaration of Independence (more than half of the latter) were trained in the law. But if they're doing the interpreting, that's a bad thing, because they read terms of art into regular language, which is not something that a regular person would do. Additionally, the horse sense of your average joe doesn't apply to lawyers bent on getting to a specific end, which means they'll come up with penumbras and all sorts of bullshit to work around the fact that they ain't got jack in the way of law to support their opinions.

Anyway, that's why I don't mind them writing it, but letting them interpret it has gotten to be silly.

Nope. Don't let them write the laws. In fact start repealing laws with a 1/3 vote.

Lawyers are unique. Two unemployed lawyers can put each other to work. When a third one starts writing laws Lawyer full employment is the natural consequence.

Try that with any other profession.

"...In fact start repealing laws with a 1/3 vote."

As I remember, the Vulcan Legislature in Star Trek had 3 houses - two to pass laws, and one which could repeal one with only a 1/3 vote for repeal. Hmmmm.

And in "Star Ship Troopers", by Heinlein, only veterans could hold office or vote. Anyone could join the armed services, and you could quit at any time, but only those who fulfilled their service could vote or hold office. This ended up with voters who had a committment to the government, had some degree of self discipline, and knew what it meant when a govenment sent off soldiers to fight and die. And it was stable - anyone with military training who wanted to change the government structure was already a veteran and could vote. Hmmmmm.

And it was stable - anyone with military training who wanted to change the government structure was already a veteran and could vote. Hmmmmm.>>>>>>>>>

Obviously you have NO understanding of the requirements for good government, the values of societal diversity, complexity, etc. are best served when the broad electorate is composed mainly of those who are qualified by their suffering at the hands of the corporate elitists, to allow people who actually know from whence the nation originated would place in jeopardy all of the hard won benefits our generosity now bestows upon the uneducated and unwilling. This could force some of our greatest career bureaucrats to demean themselves by searching for a real job. Horrors!

I agree we should put a federal sunshine amendment into place that requires all laws enacted be re-voted up every five years and re-signed by the President.

We should also put into the Constitution the line item veto. Ditto the flat tax or fair tax, and a tax cap, and a balanced budget amendment.

Meanwhile, where is the GOP on this? All of a sudden, none of that is important to the GOP any more.

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