Thursday, December 06, 2007


Totally courting the pervs with that title.

I had an oral argument today that meant a lot, and, as par for the course, I am kind of beating myself up for every little thing I didn't say and should have said.

I have mentioned this client before -- 22 year veteran of a police department (not a cop) with not just an unblemished record of public service, but fucking stellar. Long story short, her boss (Chief of Police) got wind of the fact that my client -- a records technician -- was inputting the data then contained on fucking post-it notes onto an electronic (excel) spreadsheet, such that anyone who reviewed it could see departmental inefficiencies. He freaked, placed her on paid administrative leave, pending an INTERNAL INVESTIGATION, and, when he realized he couldn't discipline a records specialist for keeping goddamn records, trumped up a bunch of assorted bullshit against her in the form of "discourteous conduct."

I know this is going to sound female bashing, but goddamn if women aren't fucking catty at work. One of the persons interviewed ("did you ever have any problems with [redacted]") recounted a story from twenty years ago at a goddamn Tupperware party. And, I should add, the City used this little story ("[redacted] was abrasive") as evidence of her discourteous conduct.

Anyway, I can't say much more, but wanted to throw this out there. One of the bases for our appeal was a conflict of interest. To be concise, the City's Police Department placed her on admin leave and ultimately suspended and demoted her (for remarkably bullshit reasons that I won't get into). When such an event happens to a public servant, they have the recourse of appealing to a Civil Service Commission. The statute says that the Civil Service Commission has the right to retain independent counsel. Guess who the Civil Service Commission retained? An attorney for the City!

Again, can't say a whole lot, but the standard of review for the Superior Court is whether a disinterested party would perceive that the proceedings were not fair to the accused. Here, the attorney representing the Civil Service Commission, which was charged with independently reviewing the City's decision, was also an attorney of record for the goddamn City. That, my non-legal friends, is textbook conflict of interest. Want it to get worse? Her colleague (at a private law firm), represented the City in the proceedings. To be clear - the same law firm represented both the adjudicating body and the prosecuting body, and the attorney who represented the adjudicating body was also an attorney of record for the prosecuting body. The attorney advising the Commission was therefore advising the Commission as to the propriety of the advice given by her colleague at her law firm.

Holy fuck, right? There is no way this passes the smell test. Yet our judge, whom I admired greatly, got a little lost. She had absolutely NO QUALMS expressing her disgust and disapproval with the situation and the law firm at issue, deeming it a clear conflict of interest. Yet she drilled me, for a while, as to why WE didn't make the conflict more abundantly clear during the hearing. The hell? We are to be faulted for not drawing the diagram to the Commission that - hello, independent counsel generally means not hiring counsel for an arguing party?

I am pissy and drained and this probably makes no sense to the lay person, but honestly, I am so burned out at judges who don't do the fucking work. This, more than anything, makes me hate practicing law - judges who don't do the work. Yes, overworked, heavy case loads, all of that. I get it. But this is bright line territory. You cannot have an attorney represent an adjudicating, quasi-judicial entity who is SIMULTANEOUSLY counsel for one of the parties before that judicial entity. Textbook, first year law school shit. Fuck, right now, I just hate everything about the legal system (not justice system, by a long shot) and I have to wait to see if my judge can get a very basic concept:

If there was a conflict of interest, which the judge fully articulated DID exist at the time of the Commission hearing, then the whole process was bunk and tainted. Instead, because of the fucked up standards of review, my judge is bogged down in the issue of whether we fully articulated our objection to the dual representation. No competent judge would get bogged down in that. The issue is not whether she satisfactorily raised, the issue is whether there was a goddamn conflict of interest that tainted the process.

Yes. Wine. I know.


Talix said...

The judge already stated that yes, the process was tainted? But may penalize your client because you didn't jump up and down with big arrows pointing at said taint at the right time?

That sort of thing makes me stabby. Kudos to you for not winding up in contempt of court. Me? We'd be collecting my bail.

Norm said...

Ok, I'm laughing rather a lot at "said taint" and this is the first time I've laughed all day.