By Mark David Blum, Esq.
The Chairman of the New York State Commission on Judicial Conduct was stripped of his right to speak and sign letters for the Commission and was the target of an “unprecedented vote of no confidence.” Attorney Raoul Felder who Chairs the Commission which oversees and punishes the behavior of Judges in New York, finds himself being adjudged of insufficient morality to continue to serve in the position he holds. Though they have not yet thrown him off, the Commission is has effectively removed him from any position of power.
What was attorney Felder’s sin? He did not steal from clients, lie under oath, misapply the law, abuse his office, misappropriate funds, or molest a child. Instead, the act which brought about the wrath of the Commission was Felder’s co-authorship of a book with comic Jackie Mason titled, "Schmucks!". Offending the Commission was how the book which "skewers our favorite fakes, frauds, lowlifes, liars, the armed and dangerous, and good guys gone bad" - contained racial and ethnic invective, ridiculed the legal presumption of innocence, and attacked affirmative action.”
Attorney Felder has a healthy attitude toward the Commission’s behavior and response; calling them ‘hysterical children’. At one level, the Commission’s actions are indeed childish and impudent. But at another level, they are more dangerous and threatening to me and other Americans and pose a significant chilling effect on our cherished First Amendment rights.
When I step into a Courtroom or affix my name to a legal document or act somehow in my role as “attorney” and Officer of the Court, I am subject to the constraints and rules of the attorney’s Code of Professional Responsibility. Specifically, I am bound as a practicing attorney by the commentaries and statements I can make about a judge in Court or in papers. (DR 8-102B).
But, when I am not acting as an attorney, as I do when I publish here, the same rules do not apply. In these pages, you read what I as a private citizen who also happens to be a lawyer, thinks and opines about particular subjects. Nothing I say here is as an “attorney” or officer of the Court, but rather as a concerned citizen exercising his Constitutional right to speak up about matters of public concern. The controlling case law on the subject in New York is found if found at Matters of the Justices of the Appellate Division v. Erdman, 33 N.Y.2d 559 (1973). There, New York’s highest Court said that the right of an attorney to make out of court statements accusing the judiciary of “buying their way into office”, “ rarely rule on questions of law”, and who were “whores who became madams” was constitutionally protected speech and not subject to disciplinary rules.
This then begs the question why attorney Felder is himself targeted for sanction for his writings in the public marketplace. There is only one answer and that is that Felder’s writings create a dissonant state in the minds of his fellow Commission members because while he is supposed to be upholding the highest standards of law and judicial morality; he is also writing humor. Felder’s writings are not about law or civilization or the history of the world, part XIXIV. Instead, Felder chooses another route for his expression and has fun doing so.
Just from what I know in my life experience, the lawyers who are selected to give input and who have the ears of those in power in government, tend to come from large firms, “respectable” firms, politically involved firms. These are people who already have made their bones, established their place, and have their worlds all neatly organized. To them, the image of the obnoxious lawyer offends their sanitized sensibilities. Their blood is just too true blue to participate in common society.
Therein lays the fundamental problem. I am of the opinion, that at its heart, the campaign against Felder, like the campaign against attorney advertising has nothing to do with the image of attorneys in the public. Rather, I tend to believe that the decisions that are being made are based moreso on a personal prejudice against those attorneys who choose not or are not allowed to be part of the Country Club set.
It is patently unfair for a government entity to decide whether the content of speech or the manner of its presentation, meets some esoteric image of “LAWYER” and then take action against the speaker. To quote Thomas Jefferson, “some men look at constitutions with sanctimonious reverence, and deem them like the ark of the Covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment… laws and institutions must go hand in hand with the progress of the human mind… as that becomes more developed, more enlightened, as new discoveries are made, institutions must advance also, to keep pace with the times… We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain forever under the regimen of their barbarous ancestors." I should not be required to fit the Court’s image of lawyer as it exists in literature though I should always be required to perform at the highest levels of professional competence.
The Commission’s attitude and position toward Felder for his writing puts me and my writing at risk. How long will it before I get a letter from some Committee or Commission somewhere or be the target of government action because of what I write here. Is my license to be taken from me because I write this article?
Someone has to step up for attorney Felder. While the entire issue itself is a joke, the tentacles of censorship are creeping their way into the law and the judiciary. If the Commission that oversees judicial behavior condones official State action against a lawyer for his personal opinions and writings, then what brakes are in place to prevent a judge from doing the same thing? Am I the only lawyer who saw the movie, Judgment at Nuremburg and understood its’ message?
