Former Democratic congressman and Auditor General Don Bailey, 68, had his law license suspended for five years by the Pennsylvania Supreme Court for allegations and criticism directed at judges in the state. Bailey denounced the ruling and said that he would challenge it in federal court while denouncing the state justices as corrupt and malicious. While some would agree with the case, there is a worrisome line of cases targeting lawyers who criticize judges.
Bailey has accused federal judges of malfeasance, charges found to be baseless. He said that he was targeted by several U.S. Middle District Court judges who set out to ruin his practice.
Bailey was a congressman from 1979 until 1983, when his Westmoreland County seat was eliminated through redistricting. He had a remarkable military career. He served with the 82nd and 101st Airborne Divisions in Vietnam and was awarded the Silver Star, three Bronze Stars, two with the Valor device, one for meritorious achievement, Army Commendation Medal, with “V” for Valor, Air Medal, and a second Army Commendation Medal for meritorious service.
I have previously expressed concern over cases of discipline for both lawyers and laypersons criticizing judges. One troubling case is unfolding in Indiana where the Indiana Disciplinary Commission is recommending a one year suspension for Indianapolis attorney and blogger Paul K. Ogden, who criticized a judge in emails and refused to apologize for what he considered an exercise of free speech.
Ogden sent emails to another attorney accusing Hendricks Superior Judge David Coleman of mishandling an estate case. One particular email sent to opposing counsel Steve Harris of Mooresville said that Coleman “should be turned in to the disciplinary commission for how he handled this case.” That email is part of the position of hearing officer Robert W. York who finds that he “cannot stress enough the conclusion that (Ogden) has a profound lack of both insight into his own conduct and lack or respect for those who disagree with him in any way.” The case is disturbing on a number of levels including the commission’s position that Odgen should be punished because he believes he is “superior to the courts and the law” and that his criticism of Coleman was “filled with inaccurate claims and slanderous innuendo.”
Ogden insists that it was his criticism of the disciplinary process that led to the charges:
I have long felt that one of our responsibilities as attorney is to speak out about the need for reform of our legal system. While I have broached many topics for reform in the legal system, many times on this blog, it was not until January of 2011 when I first decided to touch the third rail and publish an article on the disciplinary process. That story included my research that during the last three years when the Disciplinary Commission was headed by Donald Lundberg, 397 of the 400 published disciplinary cases had been against small firm attorneys and sole practitioners. It was just a few months after that story that the relatively new Executive Secretary of the Commission Michael Witte began filing grievances against me which ultimately resulted in the charges that were heard yesterday.
I tend to favor the free speech values in such cases. In the Indiana, I fail to see how emails criticizing judges should be the basis for discipline. This is a matter of professional opinion. What do you think?
Source (for Pennsylvania story):
Every couple of years I receive requests from the state bar asking me to evaluate specific judges I have litigated before. I know that it is the judges themselves who submit the names of the attorneys who have tried cases before them during the review period, and although the bar always assures me that they will keep my comments anonymous, I’m pretty sure the judges can figure out who’s saying what. I’ve also recently had a specific request from the state bar to comment on a judge that had complaints against her. I assume this judge had put my name down as an attorney reference because I had done a jury trial in front of her several years ago which resulted in a not guilty verdict ( it was strange that she had to go back several years to come up with my name) . I think she thought I would give her a good review based on this trial. Ironically this was such a good case that had it been in front of almost any other judge I would have waived the jury and done a bench trial. This judge is a hack but I was afraid to say as much as I knew it would get back to her. As far as I know she was not disciplined in any way and is still on the bench. She was doing some bat-shit crazy things that I heard about (e.g. raising bonds when defendants wanted continuances instead of excepting offers on arraignment dates on misdemeanor cases). Every year in the state I primarily practice in (Illinois) the state supreme court continues to ban cameras in the court room. I’m convinced the main reason is to shield judges from criticism for their hijinks. While it may not be beneficial to your clients to be openly critical of judges ( and this is the real reason I hold my tongue ) I really don’t see how such an opinion means an attorney puts himself above the law. If anything it may mean he’s concerned with the system remaining fair. The logic hear seems to mirror that where a person is branded as unpatriotic for criticizing the country/government/military etc.
“This judge is a hack but I was afraid to say as much as I knew it would get back to her.”
Seamus,
Thank you for your honesty. It is something I’d suspect, but given that you are a practicing lawyer it lends more credibility to the notion that there is little to restrain bad Judges.
I was prepared to go somewhat against the flow here as to the possible justification for the order. An attorney who has lost his way in conspiracy theories can do real damage to clients by providing legal advice and services affected by those theories. While the attorney is chasing unicorns, he can fail to take the action necessary to preserve those claims with actual legal merit or leave clients liable to others However, a fair reading of the order suggests that the concern was really with the criticism rather than the effect of his views on his clients-so never mind.
http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/11DB2011-Bailey.pdf
” … Your only fear is that someone will hear what my clients and I said and might pay attention to it. …” (from ap’s post at 12:07pm)
Thanks … looks like that fear was realized … 😉
http://pennsylvaniacivilrightslawnetwork.com/2011/08/09/civil-rights-lawyer-don-bailey-under-attack-and-he-and-clients-to-sue-for-corruption/
http://pennsylvaniacivilrightslawnetwork.com/2011/08/11/the-opening-statement-at-todays-inquisition-of-don-bailey-and-civil-rights/
Opening Statement of Respondent Don Bailey: August 11, 2011
Mr. Chairman, Mr. Fulton, and Attendees,
I very much appreciate the opportunity to defend myself, to the extent I can under the limitations I must endure, against charges that I wrote in a pleading that certain federal judges were misbehaving. I confess that I did so. Because objectively speaking, they were. And I also confess that I still believe every word that I said.
The Federal judicial system, at least in the Middle District of Pennsylvania, has been corrupted by certain errant and dishonest judges. There is no need to address what we have suffered, as of late, in our state judicial system. And even greater than the injustices that I am suffering right here are the deprivations of American citizens who deserve, but have been denied, their day in court. Political and personal misconduct by judicial officers continues in our system. The evidence is overwhelming. Favoritism, selective law firm influence, cronyism and political retribution are common place. Corruption in Pennsylvania has become a pervasive way of life. There isn’t a lawyer, nor is there a functionary in this system, who is not aware of these facts. And just because there’s always been some wrongdoing doesn’t mean this is okay. There are two generic classes of victims in this orchestration. The unfortunate spill off reflects on the large maturity of our judges, the decent and honest judges whose service we are privileged to enjoy, countless citizens are required to depend upon a class of dishonest and corrupt public officials to try and seek redress of their grievances. There is no greater example of the corruption which exists in Pennsylvania today than this very proceeding. Pennsylvania’s so-called Lawyer’s Disciplinary System is a fraud. If a lawyer dares to complain then his or her profession and livelihood are threatened and destroyed. Furthermore, as Paul Killian’s behavior demonstrates, in one place you apply standards, in the next place you don’t, it all depends on who the favor is being done for.
…
Please allow me to finish with a brief personal story.
… We found the disjointed chopped skeletons of over 200 people who had been marched out of Nam Hoa in 1968. Their names had been on a list because they had said things critical of the Communists. That’s all they did. They had criticized the political structure. Now the story, which is true, is certainly an exaggeration to press the point here. But how far removed is this so-called hearing or process? Perhaps not as far as some of you would like to think? You would take my right to earn a living, but more important my right to represent people that not one of you has the courage to stand up and fight for. That I voiced substantive criticisms is not important. You haven’t the slightest interest in the accuracy or efficacy of what I said about these judges’ and their misbehavior. Your only fear is that someone will hear what my clients and I said and might pay attention to it. You see what you seek to stop is any attorney saying anything critical of any judge at any time. The judicial system charged with the responsibility for protecting American citizens from First Amendment intrusions by the government is the greatest abuser of all.
I guess it is now timely to refer to a long article I wrote about ten years ago, particularly in the section about how attorneys working under the judges have no ability to criticize them:
Statement of Grievance on Government & Judiciary
http://www.nolanchart.com/article6249-american-statement-of-grievance-on-government-judiciary-part-i-of-4.html
No need for me to comment, everyone said it all.
I was required to take a legal course during my graduate school work. One was taught by a retired judge who was brilliant and “down to earth.” As the course was 35 years ago the one comment I distinctly remember was his explanation of the judge’s dictatorial control of the court. He said someday you may be in court and be on the stand and want to elaborate on an answer to a question asked of you and the judge will allow elaboration. You will think but I need to fully explain myself and he will not allow me. You will then get steamed and want to look directly at that judge sitting pompously high above everyone else and say (but you better not), Why you “black robed son-of-a bitch.” I’ll never forget that verbatim, eloquent, succinct description. It sort of sums up the judges in the above article.
There used to be a chancery court judge in Rankin County, Mississippi. He only served one term before being voted out of office. It is a good thing he was unable to read the minds of most of the lawyers in the county. The entire lot of them would have been jailed for contempt in extremis. And although not a lawyer myself, I was of a like mind. The entire bar in central Mississippi breathed a sigh of relief when he went down in flames at the ballot box.
I knew a judge who had an argument with a local citizen over who got to the service station gas pump first. He wrote out a contempt citation right there in the parking lot. That judge got his little citation slapped down and a reprimand from the judicial oversight committee.
One of my friends, who is both a physician and lawyer, has a wicked sense of humor. After being in court one day with a judge who was really full of his own self-importance, my friend observed that when they put on those black robes they take on aspects of the Deity.
The way attorneys take care of themselves it is usually a serious offense to have your law license suspended or revoked. The attorneys I know[~7] who had their licenses suspend or revoked were real shitbirds. Based on the info provided, it doesn’t look @ all warranted. It’s the same w/ docs, if you have an action taken against you then you really screwed the pooch.
It is bad enough that judge have absolute immunity from legal suit for the actions they do, and it makes no difference how bad it is, see my article
http://www.nolanchart.com/article9741-the-horrifying-extent-of-absolute-judicial-immunity.html
But now, not content with legal protections under the law, they seek to chill and punish purely speech based criticisms. These punishments are violations of free speech, association, petition of grievance and due process.
But when the alcoholics are in charge of the liquor store, and the owners do nothing to curb their behavior, this is inevitable.
There is a disconnect between practical policy and legal theory, and the distance between the two is becoming larger every month.
People in general are comfortable enough, and busy enough with their own lives to just not care about what appears to be obscure peccadillos in hidden parts of our jurisprudence. People of course do not and cannot understand that the violations in obscure places act as precedents, and grow and metastasize into other areas of our civil life, and by then it is too late to do anything about them.
Bailey’s “problem” seems clear:
http://donbaileylaw.com/ : “Demonstrated commitment to fair and equal justice for all Americans.”
“Don Bailey – Civil Rights Attorney, Harrisburg Pennsylvania
Don Bailey practices law in Harrisburg, PA and is well known for taking on the high-profile and controversial cases many attorneys fear.
Don adamantly defends the United States Constitution and the rights that it was intended to provide for us.”
Sad to say, upon this issue, yours truly has become sort of an expert.
It has become systemic & incestuous protocol of bad faith justices, via Civil Rights violations by “Color of Law” to engage in tyranny, cronyism & corruption – nefariously.
We are either a nation of the Code & Rule of Law;
or one of power, money & might makes right.
Judges are human beings entrusted with great power and given “carte blanche” protection of immunity for their adjudication upon the merits – even if they are clear error and/or biased.
Therefore, the thick skin of protection should go hand in hand with tolerance of those who criticize (even ridicule).
Richard Fine was thrown in jail for being right. Crystal Cox has been burdened with $2 million in lost litigation; for being a blogger who told the truth. (Fortunately, in Crystal Cox’s case – UCLA Law Prof Volokh came to the rescue; because that judge seeks to obliterate free speech under perverse logic of who can be one to criticize).
Attorney Mark Adams of Florida always chants “No Justice – No Peace”. For him it has dual meanings. He refuses to be silent – even though they took his BAR card away – due to his criticism. Mark Adams also has found NO (honorable) Justice – and therefore refuses to grant the judiciary any peace of his quiet.
These parties, as Don Bailey, are true Red White & Blue American patriots who put it on the line; because they give a damn about the Code & Rule of Law.
They are all American Heroes.
As was one of their true to form predecessors – Israel Weinstock. He spoke out about judicial bad faith and fought until his bitter life’s end – to stop judicial tyranny, cronyism & corruption. A Bill was presented before Congress in Israel Weinstock’s name.
KUDOs to you Don Bailey – I applaud you. It is rare that we find people like Justice Richard B Sanders of Washington State Supreme Court, Judge Tom Tucker of Michigan, Her Honor Elizabeth Weaver (who now champions – as a former justice – the cause to stop abuse of power as a judge). They, along with 11th Circuit Justice Kravitch who told a trustee the axiomatic fact “Lies under oath are Lying Under Oath. Just like all of them and his Honor Judge Rakoff = it is absolutely wonderful to be able to say YOUR HONOR
and it have some meaning worthwhile!
The sovereign immunity doctrine has grown perverted in several areas, and it is spreading.
“The king can do no wrong” type of thinking taken to irresponsible levels chills free speech while it heats up oppression –no matter what branch of government becomes infected with it:
Bertrand v. Board of County Com’rs, 872 P.2d 223 (1994), emphasis added.
Prosser was mystified about how it could make its way back into American Jurisprudence through a half-witted concept that forgets that the Declaration of Independence was a long list of unacceptable wrongs done by the king.
The Bill of Rights followed which counsel that, left to his own, the king will do very little that is not wrong.
It should be understood that “the king” is a metaphor for government power.
“Experience has shown that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.” – Thomas Jefferson
If there is a mechanism for removing judges from that state then this attack on this person is grounds. Mike, Justice Holmes and Mike Spindell hit the nail on the head regarding the right to petition the government for redress of grievances and (I add) to exercise free speech and to assemble (on the blog) in order to speak and petition the government. Here is a guy who went to Nam to fight for our Constitution getting rear ended by a bunch of snakes in the courts.
Start with Mike’s opening comment and add Justice Holmes comment and you have a concise picture of the problem. Judges should not be immune from criticism and one would assume that if they are Judges they should understand that on Constitutional grounds.
We in the US are seeing the birth and growth of a new ruling class including judges, prosecutors, police officers, congress members, presidents and other who feel that criticism or disclosure of behavior that is wrong, inappropriate or criminal in the opinion of the speaker should be treated as a crime or at least an offense with sanctions. When did our “leaders” become infallible or appointed by god? We had an entire revolution to disengage our country from “god and my right” government. I would say that we have a serious problem.
There’s a remedy for slander. I really don’t understand this, at all.
What Mike said….
And Gene…. Black robe fever…. To the tune of cat scratch fever….
What Mike said without reservation.
The Black Robe neither makes you an untouchable God nor a paragon of perfection.
From the PennLive article:
“The system is corrupt. The Supreme Court in Pennsylvania is corrupt and everybody knows it,” Bailey said. “Lawyers do not have the courage to speak up.”
True or false?
As a retired Texas trial judge I think that criticism is protected as a form of “redress of grievances” protected by the first amendment and similar free speech protections in state constitutions. Judges simply have to have thick skins. If there is a criminal accusation then it should be made to prosecutors or the judicial commission or both. If unfounded the false accuser can be sued or, in the case of a lawyer, disciplined. But criticism, even disdain just goes with the territory.