J.A.I.L. News Journal
Los Angeles, California January 21, 2002
by Henry NicolleFor several years, I have worked on a project in Ventura county California, to prepare for recall of the county's 26 superior court judges and other county officials. Of the 26 judges, 18 or more had been appointed from the offices of the District Attorney. Sixteen of the 26 had never faced the voters on a ballot, their "re-election" actually a legal sham. Since it was important to me that the statutory requirement of personal service of our intent to file a recall petition to each judge be made "face-to-face" by their physical constituents, (not by an impersonal letter in the mail), I consulted with the judges and with the Administrator for the Superior Courts, asking for suggestions which would allow a civil, non-interfering method of this face-to-face service, individually, on each judge.
You would think that I had just set a fire in the black-robe back-room! In each and every conversation, the first reaction was a wide-eyed look of astonishment, then the surprised declaration, "You can't serve a JUDGE!" When I would ask, "Why not? It's the law that I have to serve each judge." the universal response was "It just isn't done! It's NEVER been done." (Remember, we are talking about "face-to-face" personal service by a physical constituent to a physical judge.)
The deputy Counsel for the Superior courts was summoned and she responded by saying "It's the law, that you can't serve a judge." Being somewhat familiar with the statutes on this subject, I said simply, "Show me what law." Deputy Counsel for the Superior Courts said, "That's what the Law Library is for. You should get professional assistance."
So, right here we have a premonition of what "professional courtesy" really means. It means that the law is unimportant in the question of legal service on a judge and if the relevance of law with respect to judges is to be questioned, it must be via the (fee-based) professional services of a member of the BAR. If the law can be discarded in one area by the "professionals", then surely the law means very little in any other "professional" sense and in any case, only fee-based and "professional" discussion of the subject is permitted.
This observation explains the lack of comment by California judges and attorneys on the criminal behavior and spurious qualifications of judicial officers such as Orange county Superior Court Judge Ronald Kline, (currently under administrative suspension while he faces charges of child molestation).
The contemporary perversion of "judicial ethics" and "professional courtesy" by law and by practice demands that disreputable, criminal and unlawful behavior be tolerated in our courts and its perpetrators protected under "professional courtesy" by innocent and diligent practitioners, so as to not endanger the careers and livelihood of the corrupted and the inevitably corrupt institutions in which they operate.
Why don't other judges speak out to defend our governing institutions, and especially the judiciary, from corrupt, inept, incompetent or criminal officials and judges?
That's easy, it's more "professional courtesy". To point out and remove the corrupt players is to admit to the People that there are corrupt and evil judicial officers and prosecutors. That would be an admission that our judicial institutions are as corrupt as their corrupt actors behind and before the bench. It is not "professional" to clean house.
Why doesn't anyone ever run against these guys?
Again, the reason is "professional courtesy". The incumbent can, and is well tempted, to exercise the power of judicial discretion to embarrass your clients before the bench and in so doing, ruin your career, your family, your life. It is not wise, and therefore, not "professional" to put your clients' interest at risk by "tempting" the "court".
If you challenge the incumbent at the ballot box for his job, you are a very brave attorney. It is not considered "professional" (or a pragmatic career move) to threaten to take a judge's job for your own, or to suggest that the incumbent is not fit for office. Therefore, you must demonstrate "professional courtesy" by refraining from criticizing your judges and wait until a bench is open by attrition before your throw your hat in the judicial ballot ring.
"Professional Courtesy" as it is practiced today is more akin to "honor among thieves". Judges (and attorneys) don't speak out on judicial behavior because it is a statutory crime in California for a judge or candidate for judge to criticize a judge or another candidate for judge. The California Code of Judicial Ethics applies to judges and to candidates for judge. The BAR Association's code of ethics that attorneys are intended to abide by has similar provisions, but is dependent upon voluntary compliance.
Since the early 1990's the California Code of Judicial Ethics has been statutorily enforceable, not simply voluntary. We found out over many years of experience that our judges simply will not comply with a voluntary code of ethics. Unfortunately, now that the rules for Ethical conduct are mandatory, the record shows that enforcement is more rare and lenient than when Ethical behavior was merely voluntary.
The problem, again, is "professional courtesy".In California, only attorneys can be candidates for judgeship. Only attorneys may be District Attorney or deputy district attorney. This is almost a mandate for the establishment of "professional courtesy"
Many, if not most judges reach their office initially by appointment, not by election. The more prominent "team players" rise to the top of the list of "qualified" candidates.
Many, if not most judicial appointments are made from the rolls of the county Deputy District Attorneys and from the District Attorney's Office of the Public Defender. It is with this convention that the power of modern "professional courtesy" becomes enforceable upon the CLIENTS of the profession.
Candidates for judge must be residents of their county, or if candidate for higher courts, of their district.
Local attorneys generally practice in front of local judges and oppose local prosecutors.
It is extremely rare to find a practicing local attorney who will run against a local sitting judge. Almost universally, only open judgeships may attract contention in an election.
In California, a sitting judge, even if appointed but never elected, when his term is complete and if he or she is unopposed, may request the Clerk to omit his name from the ballot that the voters see. This request has never been denied, to my knowledge. The incumbent judge is then officially elected by unanimous ballot, a fictitious ballot that the voters could never exercise.
Any candidate for the seat of a sitting judge is a threat to that judicial incumbent's professional career and future career aspirations. It is, arguably, a clear invitation for discrete and often not so discrete retaliation from the bench or District Attorney's office against a challenger and the challenger's clients. It is in this venue that "professional courtesy" is enforced within our modern judicial institutions.
It seems to me that our courts are filled with local attorneys who must carefully practice their professions without offending the offices and careers of their judges or their District Attorneys. To challenge a judge or district attorney too vigorously in court, or more seriously, for their office, a local attorney places both his local professional career and the fate of his clients at serious risk.
It is a criminal violation of the Code of Judicial Ethics for a judicial candidate to criticize a judge or his opinions.
Any of the legal, judicial and prosecutorial brethren who have courage to speak out against child molesters, frauds, crooks and criminals wearing black robes do so at the real risk of judicial assassination of their careers and clients or find themselves accused of violation of their respective codes of ethics.
As one of Ventura's prominent criminal defense attorneys once said to me, "Henry, you're right. But, if my name is ever associated with your politics, all my clients will go to jail." He was not kidding around.
Summing up, it is not possible for "professional" to provide effective self-discipline for their fellow "professionals". A "professional" will never hold himself to the same high standard as he would beheld to in the eyes of an outsider or client. The "professional" will hold his fellow professionals to an even lesser standard, because... you never know when your professional conduct might be called to question by an outsider and you will face your fellow "professionals" for their opinion on the question of what is ethical and "professional".
There, my friends, is the core meaning of "professional courtesy". If you are to practice your profession, you must not criticize your fellow professionals in public, you must not publicly challenge your fellow professionals' jobs or careers and if called upon to judge your fellow professionals, judge not, lest you be judged. Personal accountability, obedience to law and ethics is not currently deemed "professional" behavior and attracts a palpable risk of retaliation by judicial and prosecutorial "professional" racketeers.
I guess if I were an attorney or judge in today's government purgatory, I would be tempted to say the hell with the law, my clients and the rest of outsider society, too... otherwise, I would have no "professional" practice at all.
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