Thursday, February 28, 2008

12. How to Read the News about Lawyers and Judges

The newspapers have been replete with stories, reports and accusations back and forth about judges, attorneys and clients. The “Malite estate” is practically a household term. It gets confusing. What do you believe? How do you figure out the “truth”?

It helps to keep some basic information at hand.

About judges: We have an “adversarial” system for our justice system. This means that litigants oppose each other and have the burden of proving their allegations. Judges do not act as witnesses or investigators, only as neutral arbitrators of information presented to them. No litigant gets a “perfect trial.” In fact, such a thing does not exist. Somewhere along the line, one of the many people involved in the judicial process (judge, attorney, litigant, witness, juror, or even court clerk) will make a mistake, as all humans do. What we strive for is not a perfect trial, but a fair one, before a judge or justice who, in the case at hand (regardless of other cases), has not made up his or her mind before the evidence or appeal is presented.

About attorneys: The first and highest duty an attorney owes is to the constitution and laws of the U.S. and CNMI. Whenever an attorney signs a document that is filed in court, the attorney is certifying that he or she believes it is true and legally supported, after a reasonable inquiry. If the allegations turn out to be false or the claim or appeal not legally supportable, and the attorney was not diligent before filing the pleading, the court can punish the attorney. This first duty also means that a lawyer must sometimes tell a client that what the client wants is unattainable, illegal or unsupportable. Clients do not like to hear this, but honorable attorneys will do their duty anyway.

The second duty of an attorney is to his or her client. Because our system is adversarial, the duty to the client necessarily pits the attorney against the other side. This does not mean the attorney must be rude or hostile to the opposing side. For the attorney, the client’s interests are paramount; the client’s interests—not the interests of the family, not the interests of the community, not the interests of some moral or religious point of view, and not any other interest. It also means that what a lawyer does is done in the name of the client, and it is in reality the client who is acting through the attorney. I’ve seen families maintain good social contacts despite litigation between themselves and they sometimes do this by blaming the lawyers. But in reality, the lawyer does not do anything without his or her client’s authorization.

The least of an attorney’s duties is to the opposing party, the media and the public. Basically an attorney must be fair. This essentially means “due process,” which is giving notice of claims and recognizing the opponent’s right to be heard.

About probate cases: Probate cases involve disposing of all of the assets and debts a person who died had, as of the time of his or her death. These assets and debts are called the “estate.” Anyone can file to probate an estate. One unusual feature of our rules is that even a creditor who claims the estate owes him money can file the case and ask to be appointed as the administrator.

The court appoints an executor, if there was a will, or an administrator, if not, to handle the probate procedure and move the case through court. This executor or administrator usually hires an attorney. And in these probate cases, the executor or administrator, as well as his or her attorney, owes a special “fiduciary” duty to the heirs of the estate and must look after their interests. Obviously, if the administrator is a creditor as allowed by our rules, there appears to be a conflict of interest between the creditor’s own interest and the duty to look after the heirs’ interest. For this reason, the court usually works hard to find an heir or other family member to step into the role of administrator rather than have a creditor do this, but the probate rules do allow a creditor to act as an administrator.

One aspect of the special duty of an executor or administrator concerns handling the estate’s assets. Executors, administrators and their attorneys need a court order to dispose of any of the estate’s assets. Court orders typically first require notice and an opportunity to be heard by all. The alleged violation of the rules mandating orders from the probate court before disposing of estate assets has been at the heart of many of the problems with probate matters.

Because of past problems, distrust, or even for information, one or more of the heirs or other family members may hire their own attorneys. Such an attorney owes a general lawyer’s duty (not an administrator’s duty) as outlined above—to the law, to the client, and minimally to the world. Heirs generally have a right to be heard.

About the legal profession: When any litigant has problems with an attorney there may be remedies available. The litigant may raise the problem to the judge in the court case where the problem arises and then on appeal. Another place to lodge complaints about attorneys is with the CNMI Bar Association, which has a disciplinary committee that investigates such complaints and makes recommendations for prosecution if warranted. If a litigant has a complaint about a judge, the litigant can ask to have the judge removed from the case in the pending court proceedings, or file a complaint against the judge for violation of the judicial canons of conduct.

About media reports: When complaints against lawyers and judges are taken directly to the media, the justice system becomes distorted. Some media reports are made based on one person’s opinion, usually a person involved in the proceedings and not a neutral decision-maker of investigative journalist. The statements to the media are sometimes libelous, declaring as fact what has not been proven, and depriving the “accused” lawyer or judge of having due process—a chance to have notice of the charges and an opportunity to defend against them.

Statements made directly to the media, through interviews and letters, are different than statements made in pleadings filed in court, and then reported by journalists. The court pleadings are made under the attorney’s certification of diligent investigation and truthfulness, with the threat of sanction if carelessly wrong. And a journalist tries to report accurately what can be verified. In contrast, the lure of quick access to newsprint and television, with their wide audiences, can encourage the individual who is interviewed or who writes a letter to make rash and vindictive statements without any facing test for reliability or truthfulness.

Judges and lawyers, the same as all people in our justice system, are innocent until proven guilty. Allegations and statements about fact made by individuals directly to the media are not proved. All we really know is that so-and-so makes the allegation.

So when analyzing a news report about a judge or attorney (or anyone, for that matter), start by asking these simple questions:

1. Has there already been a finding by a court? If yes and the finding supports the statement, that would make the statement more believable. However, it may be important to read the court’s opinion yourself. Sometimes people twist what the court has actually said to serve their own ends. If the court decision is against what the person is saying, there’s less reason to believe the person’s statement. If there’s been no court decision, you may want to withhold your judgment on the truth of the statement or allegation, recognizing that the statement is just a bunch of words without proof.

2. Does the person making the report have a stake in the outcome? If yes, recognize that they are not neutral and unbiased, and remember that bias and prejudice can make reports unreliable. Ask yourself whether the person making the statements may be using the media to push their hype when they cannot win legally. Or are they merely responding to attacks unjustly made against them in the media, when they haven’t yet had an opportunity to present their case?

3. Do you personally know the speaker, the person making the statements or allegations? If yes, you have a better insight into credibility. If not, you may have little to no ability to assess the truthfulness of the statements made. Be smart about what you do know and what you don’t.

We need less character assassination in the newspapers, whether the topic is political or legal. Principles, not personalities, should be the focus of discussion and rational debate. So when you read letters to the editor or stories in the media where someone is claiming that another has acted unethically or based on prejudice, be cautious. Don’t believe everything you read. Use what you know. Ask questions. And withhold judgment until you’re convinced, not by cheap shots and lots of talk, but by real evidence, tested through cross-examination in a court of law, and unbiased review.


Mike said...

An attorney's first (primary) duty is to his client.

Saipan Writer said...

I disagre, Mike.

When we're sworn in, we swear to uphold the constitution and laws. Our duty to our client can not pre-empt this obligation, even though it's extremely important.

In any given case, it always seems that the duty to the client is the most important duty, because we so automatically take care of the duty to the constitution and laws. But that overriding duty is there.

Owing a duty to the constitution and laws does not ratting out clients. Fortunately we're granted a confidentiality privilege, so our clients can tell us their situation and we can advise them. It does mean, though, that the client's wishes are not supreme. We can't help a client violate the law. No matter how much of a duty we owe that client to aid his interests.

Mike said...

Mike E. here. (I wasn't the above mike).

I agree with Jane. Law first, client second, though I would take minor issue with her contention that we have some third duty to the rest of society. Our benefit to society occurs when we do our duties to the law and our clients.