Decision of the Day reported on Committee on the Conduct of Attorneys v. Oliver, 07-4097 (10th Cir., Dec. 18, 2007). In this case, ex-Judge Cassell "filed a sealed complaint referring Oliver for professional disciplin because Oliver had missed deadlines and violated court orders in twenty-seven cases." For those of you that don't have first-hand knowledge of the inner workings of any court, many judges usually look down upon counsel, expecting them to not only comply with every order in the way they expect, but also expecting them to supply facts that they would expect. And those are the good judges. Truth be told, this is probably human. We all like to feel superior and lawyers are no exception. Lawyers bash for being "bad" each other like there is no tomorrow. Law clerks, the kind that have no experience, seem to delight in saying how they would do a better job than any lawyer regardless of the facts, law, resources, or clients. (Yes folks, sometimes there are bad facts, bad law, limited resources, and just plain uncooperative clients. Oh by the way, witnesses (including cops) lie, too.)
Now, please don't get me wrong. I think lawyers should perform to the highest possible standard. Lawyers owe a duty to their clients. But, to be clear, I think that most judges are incapable of assessing whether someone is really serving their client. If a judge is truly an umpire, he calls balls, strikes, and fouls. Most umpires do not coach the players on what kinds sort of game to play.
Anyway, I see a few problems with this opinion.
First, the lawyer did not hire a lawyer. Bad move. The judges are mocking him already. Any time he tries to defend himself, the hearing officer calls him belligerent. Remember kids: winners hire lawyers. A real American would never talk to a court or the cops without a lawyer that regularly practices in field. The jails are filled with people that were too poor to understand this basic concept of American citizenship.
Second, I am a little confused by the statement that "Panel determined
that a disciplinary
proceeding is not the proper forum for a declaration that a rule [Rule 83-1.5
of the Civil Rules of Practice of the United States District Court for the
District of Utah] is unconstitutional." But, later in the opinion I
see this "Mr. Oliver alludes to a substantive due process violation, but
he did not raise this issue before either the hearing examiner or the
Panel. Thus, he waived any argument premised on the right to substantive
due process." So, the panel says that it won't hear constitutional
arguments (which, itself, means that the panel will follow unconstitutional
rules), and then the 10th Circuit faults him for not raising the constitutional
issues, and then says that his argument is "muddled." (Read the
opinion for yourself. I can tell what the lawyer is saying –
because it sounds like something Seyla would write. Since I read everything that Selya writes I
have a lot of experience.)
Third, I am somewhat troubled by the Court's dismissal of the following argument:
For instance, Mr. Oliver testified that "it's okay not to respond" to orders to show cause because the order itself said "if you don't [respond] your case is going to be dismissed."
Id.
at 59. He felt that if the court thought a response necessary it "would say, 'You know, you need to respond to this, and failure to respond will result in sanctions.'"
I think he is actually correct. Orders to show cause are generally judicial creations, and are not issued pursuant to a rule. Usually the substance of them is the same some other motion (i.e. a motion for summary judgment). The result is that if someone “does not show cause why X should not happen” he is conceding that X should happen. Does the 10th Circuit really think that lawyers need to explain to their client 1) we are going to lose because the substantive law does not favor us; but 2) you must pay me for hours of my time to draft a futile motion. Obviously the 10th entire 10th Circuit never had to actually tell a client this.
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