371. "I just violated that sealing order." - Details

The manuscript of For the Sake of Argument was sent off to the publisher earlier this month and came back copy-edited a little over a week later - a bit more quickly than in the old hand-set letterpress era of the 1990s. Back then, we mailed paper to each other, if you can imagine that.

Not only was the new ms. transmitted electronically, but the copy editor worked directly on the Word files I had created, rather than by hand on page proofs. The famous "track changes" feature, so potentially catastrophic for lawyers, turns out to be very handy for editors.

(Incidentally, you can already preorder the book on Amazon. Be the first in your office! You might notice, though, that the subtitle on the cover is different from the subtitle on the book description. And if anyone can explain precisely what the broken gavel symbolizes, Id appreciate hearing from you. Not that I mind the graphic - given the limited repertoire of standard images signifying the legal profession, the image is surprisingly surprising, isnt it? Besides, broken two-pan scales would just look like fossilized spaghetti.)

Much of one chapter is devoted to the hidden conflicts of interest built into the profession. The Model Rules of Professional Conduct dont begin to address the really significant ones. For instance, the biggest beneficiaries of punitive drug laws, and especially forfeiture laws that exempt legal fees, are criminal defense lawyers: "You can either give it to me, your last friend, or you can let the cops take it." (Check out footnote 5 of this.)

Similarly, the biggest beneficiaries of expanding tort liability (after the insurance companies, who sell more insurance) are the insurance defense lawyers, who see their caseloads increase in steady and predictable ways.

But the most pervasive conflict of interest is even more camouflaged than those. Thats the need to stay on the good side of judges. It requires lawyers to weigh their duty to their own careers against their duty to their clients.

In a small community, kissing ass is an absolute imperative - you cant function if the local judge is going to rule against you out of spite. Appellate attorneys spend their days trying to appeal to the 5 or 7 members of the state supreme court, or to the three members of an intermediate courts panel. A bad personal relationship with any one of them can make you a hazard to your own clients.

I always figured thats why they call it a "court" - because the lawyers act like courtiers. They pay court to judges. Judges who are sufficiently ruthless about holding clients hostage can even turn lawyers into courtesans.

But then, as with that supremely satisfying moment in A Christmas Story when Farkus gets his, sometimes lawyers will stand up to a judicial bully. One of my colleagues tried it here in New Mexico, only to be told - off the record, on the Q-T, and very hush-hush - that the super-secret Judicial Standards Commission didnt act against appellate judges. After all, the top appellate judges ran the agency.

Is it different in New Jersey? We may find out:

A Hunterdon County assistant prosecutor has filed a complaint against Supreme Court Justice Roberto Rivera-Soto, charging him with violating a court order sealing the identity of an investigator who used a racial slur while discussing former NBA star Jayson Williams.

In the complaint filed to the Advisory Committee on Judicial Conduct, Assistant Prosecutor Bennett Barlyn accuses Rivera-Soto of "inappropriate, contemptuous and injudicious conduct" that constituted a "willful and deliberate violation of the courts sealing order."

The justices name might sound familiar. Rivera-Soto has made this blog before, for using his position to bully a school administrator. (See post 287.) (And no, he still doesnt have sufficient self-respect to admit in his official biography the name of the governor who appointed him - a man whose sexuality is the least interesting thing about his public career, but the only thing hell be remembered for - pretty effective spin, really.)

As to why the investigators use of what the paper so discreetly calls "a racial slur" - apparently, "the N-word" is too loaded to be effective as a circumlocution - is even remotely relevant to the prosecution of the person who owned the 30,000 square foot building (I dont think "home" is quite the right word for anything the size of a grocery store) in which a working-class person was shotgunned to death ...

Unless McGreeveys boy on the bench merely wanted to make the point that our legal system is always prepared to offer an O.J. defense to anyone who can put up a star athletes money - which, truth be told, most Americans already know - I dont see why he wanted to talk about the investigator with the racist vocabulary.  But he did.  He said: "I just violated that sealing order. Lets talk about [the cop]."

Ever since I first heard about the episode Ive wondered if Justice Rivera-Soto was trying to encourage someone to kill the cop. That might seem extreme if you havent listened to sports radio recently. Telling obsessives how to track down someone responsible for injuring the object of their obsession seems, at a minimum, negligent. 

But to impute bad motives to the justice, a "veteran casino lawyer" described in the papers as "pompous," would imply a greater level of self-awareness than he seems to possess.  (More about the justices pre-judicial career here.)

So lets ignore his motives and just look at what he said: "I just violated that sealing order." His readiness to admit that can only mean that he considered himself privileged to violate it, and further privileged to require a lawyer appearing in front of him to violate it, as well - which he did by demanding, point-blank, that Barlyn confirm the investigators identity.

In short, whatever his subjective reasons might have been, Rivera-Sotos point was that members of the Supreme Court arent bound by the same law that applies to less-exalted personages.

Richard Nixon, we were reminded this past Christmas movie season, once expressed the same view: "When the President does it, that means that it is not illegal." Another, more recent (but distinctly Nixonian) politician said something similar, too, but only "as a general proposition." Its interesting that Rivera-Soto would bracket himself with that pair - but, once again, it might be giving him too much credit to suggest hes capable of perceiving that hes doing any self-bracketing.

As for the complaint, well, I hate to be pessimistic about things like the rule of law, but, you know, the doctrine of rex non potest peccare is pretty well-established in America. (See post 208.) My guess is that if anything happens to Justice Rivera-Soto, it will be because his colleagues on the New Jersey Supreme Court are tired of having him around.

But if anything happens to Bennett Barlyn ... what with Jersey being Joisey, at least on HBO... I know a place much favored by the witness protection program, according to the writers of In Plain Sight.

(Supposedly you can watch a video of the argument here, though for whatever reason I couldnt get it to play.)