WHERE ARE THE LAWYERS?

“In the 1960s many lawyers, including me, went to the South in droves to protect and have implemented by going to appropriate Court to get an injunction enforcing the oppressed Blacks right to vote. We hear from many the young generation is our hope. Why are the young lawyers not organizing to do this now for an election that will seriously impact the future of any American Democracy?”
Jonathan A. Weiss Esq.

The world and American democracy are in crisis. Lawyers have played, do play, and will play an important role in how the future develops. Required to represent their clients “zealously” in legal frameworks, the major ethical question presented is what class of clients do individuals chose to represent. The choice covers a large range of possibilities from bureaucracy to corporations to institutions based on principles, purposes, and causes. At this crucial moment, lawyers who could constitute a vanguard are missing in action.

The background helps us understand why. Within the last few decades law firms have grown in size more than exponentially. One firm has 10,000 lawyers. This growth has become international with big firms operating in Europe where a firm used to be a “studio.” (Heavy student debt has impelled many to join this legion,) The “public interest” legal institutions (now some reactionary which are not relevant to this analysis) appear no longer driven by the ideals of protection and enhancement of the basis of Constitutional American Democracy with equalities essential – there little evidence reported that they still bring impactful suits in these areas. The ACLU, after years of devotion to Free Speech (e.g. supporting the Nazis who demanded a parade permit to march in Skokie, Illinois where many holocaust survivors had settled, with the motive of marching in Chicago) issued condemnation of the hateful chants, shouts, and rhetoric of the racist fascist demonstrators in Charlottesville, and now operate with guidelines for representation including the “content” of he speech. The justly legendary NAACP, Inc. Fund (once led by Thurgood Marshall who became an outstanding Judge in the 2nd Circuit and Supreme Court) has yet to file suits against the large range of voter suppression and gerrymandering (violative of principle of “one man one vote”) enacted with clear racist motivation, nature, and effect. Other organizations based on its model for Mexicans, Puerto Ricans, Asians, etc. have not filled the void.. Legal Services which served millions or poor people and brought many important law suits is no longer attractive, hog tied by legislation (declared proper by the Supreme Court) became stultified bureaucracies (with many meaningless. or worse, meetings) servicing some in need but not attacking root problems, or even approaching them. If these institutions had persisted properly, joining them would have enabled pursuit of just causes for the interests of the class of clients selected.

The current Supreme Court, although it keeps reducing its case load (while deciding some issues secretly in a shadow docket) casts an appalling pall over hopes of protection against reactionary movements and laws, elevating corporations to people with freedoms to spend money on politics, etc. Justifying with dubious arguments, their political decisions no longer have even the veneer of reasoning to a conclusion. It is important, however, to recognize their current condition is an extremist culmination of bad decisions, clearly violative of a reasonable implementation of the Constitution, Bill of Rights, Civil Rights Amendments (e.g. the creation and expansion of “qualified immunity” for police misconduct even cold blooded murders) Justice Deferred by Derfner and Burton (Harvard) thoroughly, precisely, and persuasively demonstrates that the Court has led racist agendas. (Brown v, Board just reversed Plessy v Ferguson which held you could be separated and kept “equal” in principle and fact – the final death knell to reconstruction, letting Jim Crow fly completely to desecrate the principles of freedom and equality, which some claim justifies the Civil War.) I have detailed how the Court radically has gone down the wrong road in “Criminal law” in The Road Not Taken (Seton Hall Legislative Journal 2000-2001). A green light of lawyer inaction (combined with Supreme Court hostility to elections not corrupted by money and racist laws) has spawned many new voting suppression laws, some more to come. But no legal challenges.

Gerrymandering has been extreme (Texas leads the way) but no law suits have been filed in spite of the clear meaning of the series of “one man one vote” cases. Polls are unreliable, but it is interesting that one out of three polled recently believed the Supreme Court should be abolished. With or without it, there are State Courts with State Constitutions, and some Federal Judges whose cases are not likely to be subjected to the reactionary dominated Bench..The time is now for many focused actions to empower the oppressed and segregated to vote, to oppose in public, courts, and legislatures the many repressive laws and actions. (Some stemmed from”wars on —drugs and terror. Dick Cheney is reported to have said after 9/11 “Good, we can now go to the dark side” and his administration did…twenty years later, the bad effects are prevalent, any good ones missing.).Bar organizations still can speak out.

Law schools are apparently not helpful. The word police oppose the reactionary Federalist Organization (a major path for appointments to the Judiciary) creating furors over who said what rather than engagement jursiprudentially. Clinics are now serving corporations, destruction of the Religious Establishment clause, etc.; some do continue to do outstanding work.

Bar Associations and Prosecutors have failed even to attempt sanction the blatant corruption, propagandistic lies, and conflicts of interest of the last Presidential administration.  (Anti-trust law enforcement by government and lawyers is also missing in action). Frivolous law suits galore were filed to set aside the Presidential election results but no actions yet (although threatened abstractly) with no concern about lawyers returning to lucrative law firms after their participation in the outrageous breaking of norms and laws. Thus far, the most that has happened is a “suspension” of Rudy Giuliani. Prosecutors accepted. without reason, that a dictum in an internal FBI footnote about impeaching Spiro Agnew prevented any prosecution of a sitting President which was stated without any justification. (Mueller used this proposition to claim it would be “unfair” to the President to declare his obvious grievous guilt because. since he could not be prosecuted, he couldn’t defend himself!).

Many prosecutors made continuous public noise about what they would do when there was a new President. Thus far they have done nothing. Even the mass media has noted Trump’s violation of the emoluments clause of the Constitution, clear tax and other frauds also involving his family, illegal diversion of funds, inciting riots, etc. – so many outrageously illegal acts that a cottage industry of books about them is flourishing. Yet no prosecutions. (It has been reported that the New York City General Counsel was about to prosecute Trump, but did not at the behest of his largest campaign contributor…years ago). At least, there is a Congressional committee investigating a treasonous violent attack to perpetuate a coup on January 6. Trump ordered his aides not to testify so Steve Brannon refused to do so. The case has been referred to the Justice Department. as I write. so we shall see if there are any legal consequences – recalling when HUAC and McCarthy ruined so many lives, imprisoned people for not “naming names” with any association with Communism, using threats and use of contempt powers.

Two recent manifestations of the malaise of inactivity by lawyers who should have acted:
( 1) The Supreme Court (“no evidence” of “racism” per Chief Justice Roberts) stripped the Congressionally created “pre clearance” required by the Voting Rights Act by the Justice Department of law affecting voting. Immediately, many States passed laws clearly designed to suppress voting, particularly by racial minorities. These laws still violated the Voting Rights Act (so would not have been precleared.). They were vulnerable to suits after their passage under that Act but none were brought…inexplicably.
(2) Joe Arapaio, in New Mexico selected (often innocent)“Mexicans” for prosecution and torture by placement in blazing heat to receive national attention for many years, even the honor of a New Yorker article. Finally, he was convicted of contempt of Court for continuing these practices against a court order in time for a Trump pardon.

On the other hand. we are presented with the spectacle of Chevron using the Federal Courts implementing Chevron’s campaign to punish the lawyer Donziger for successful pursuit of Chevron to keep their promise to restore land ruined by their drilling in Ecuador. Chevron’s success so far (let us see how quickly the Second Circuit acts and hopefully remedies) was accomplished by Judicial maneuvering to get a Judge in charge who had been a board member of the Federalist Society. After refusal by the government to prosecute him for refusal to turn over his computer and phones on the exalted Legal Ethical principle of client confidentiality, she appointed a private prosecutor – a law firm. Seward and Kissel, that had Chevron as a client. She imposed unheard penalties from long time home confinement to prison. Not the State Bar Association, County Bar Association, or City Bar association have taken any interest or filed briefs or even statements about retaliation, confidentiality, extraordinary unjustified punitive actions against a lawyer’s “error: in litigating for indigenous people’s fight to for their habitat, and implicitly, a healthy environment in a this time of dangerous global warming.

Civil procedure, full of complex, ambiguous rules, operate in conjunction with delays to favor corporations. Insurance companies rarely pay until the day litigation may go forward, perhaps with enough time so the injured or damaged claimant will die. Big law firms employ many motions on procedural grounds. They grind through pre trial “discovery” until they have accumulated large fees then settle at an amount that could have most like been reached at the beginning. A survey of “litigation” departments of these big firms would disclose how few trials ever occurred. In speciality Courts, landlord-tenant (perhaps better labeled landlord), cab inflicted injuries, “regular players” – lawyers there every day – are treated preferentially with irritation at new theories presented by opponents. In Family Court, the docket is used to penalize aggressive lawyers by placing their cases at the end of the day. “Incompetency” proceedings, with no right to counsel, often run through a mill. (In New York City, a report on these problems was issued including psychiatrists who had been used by the counsel who did represent them.) There has recently been a lot of coverage of Brittany Spear’s treatment by her father “conservator” which is common, not unusual. The corresponding prosecutorial preference is well known for criminal matters while overturning a conviction requires overcoming heavy burdens, including evidentiary. Some prosecutorial abuse is spectacular but there appear to be about one disciplinary action a year in the United States against them. The Innocence Project (with some of their cases documented and available on line) has apparently done splendid work to overcome the obstacles for few of the many unjustly convicted, some facing State murder. In this connection, the present system of incarceration ranges from forced cheap labor (inmates in California were extensively employed to fight fires but are precluded on release from joining the fire department) to trauma purposely induced solitary confinement (with an apogee of “maximum security” isolation from almost everything from the outside) to horrible conditions, and danger from guards and other inmates (the Attica slaughter under Rockefeller’s direction was originally reported as dangerous unhinged prisoners causing harm and brutalizing captured guards). Those instead convicted of “white collar” crimes are sequestered in communities with amenities. I have published in Verdict about the right of ex-felons to vote which is now in the political process. Bar associations and their publications do not concern themselves with these matters although they now applaud “diversity” constantly. Whether appointed or elected, most Judges and Prosecutors owe supporters favors. Conflicts of interest are obvious, sometimes noted but not acted upon. (Again, knowledgeable people has described a prosecution nipped in the bud against Trump because the prosecutor’s main donor asked that it be dropped.)

On January 6, an organized and incited mob (with official and even congressional complicity and details still being revealed) committed violent treason, destruction of Federal property (its protection used to justify police violence against protestors), to try to perpetuate a coup.

Treason is so important that it is grounds for Impeachment. People were killed (six and eleven suicides) and injured while Federal property was destroyed and elected officials forced to run and hide for their very lives. Yet, these dangerous people are rarely imprisoned or forced to pay high bail (a cause for so many incarcerated – Riker’s Island is now famous for harm inflicted). They are only charged (with one exception) with misdemeanors (almost all pleading guilty to “misdemeanors” -entailing much less jail time than those in prison for missing parole appointments or using drugs.) Why are the Bar Associations, lawyers with articles and editorials, not raising the roof over this “mollycoddling”? Where is that comparison to people in jail for missing parole appointments and minor infractions, or comparison to treatment of peaceful protestors, etc.? Where is the outrage?

Some journalists, some scholars, some researchers have documented and published about these matters. There are some courageous able lawyers representing those unfairly treated. They do tend, however, to be those that started in the 1960s when it was fashionable – with a galvanized civil rights movement with many accomplishments. Nixon and Runsfeld ended the successful “War on Poverty” initiating the enforced deterioration of Legal Services, culminating in a law, backed by some claiming to speak for legal services, upheld by the Supreme Court abolishing attorney fees, class actions, raising Constitutional claims, etc.

All we have presented indicates a public record that there is a sea of injustice where few lawyers even dip a toe (lip service “Pro bono”) while the Bar at large and its associations remain silent and inactive – not accepting the challenges to the law’s integrity and purpose or its essential role in a Democracy with genuine equality, dignity, and freedom nourished justice. supported by a properly functioning legal system’s depending on lawyers concerned with Justice and fair legal implementation, . Without layers guiding the blinded Justice, without real attention from lawyers institutions and organizations, Justice will remain blinded to all the serious deficiencies, now increasing, in the legal system.

The Progressive caucus is Congress’s largest. Many citizens now participate in local governance (school boards). Following the Civil Rights movement then Occupy Wall Street through public demonstrations. rights once trampled on are being asserted with degrees of success and recognition. Environmental activists, featuring Native Americans, have been admirably active and appear often in the news. (Donziger’s treatment serves as a warning to lawyers.). New organization are galvanized to help prevent an apocalypse from overpopulation, climate change, and plagues…and the end of Democracy in 2022.. There should be a widespread urgency – “hurry up, it is time.” But. .The Legal System’s organizations and leaders seem unaffected, unmoved, and inactive.

Where are the lawyers?