“Let’s kill all the lawyers!” Shakespeare was not so far off the point but for other reasons

"The first thing we do, let's kill all the lawyers," called for by Dick the Butcher in "Henry VI," Part II, act IV, Scene II, Line 73. Dick the Butcher was a follower of the rebel Jack Cade, who thought that if he disturbed law and order, he could become king. However, historians have insisted that Shakespeare meant it as a compliment to attorneys and judges who instill justice in society. (Debbie Vogel, Westbury, New York Times Archives).

The recent astounding disclosure of the unethical activities of disgraced and disbarred former California Bar member Tom Girardi (allegedly assisted by certain retired judges working privately), accused of "epic corruption" leading to unearned enrichment, has shaken the California legal profession both bench and bar.

Accomplished through advertising campaigns designed to attract customers rather than clients in the same mode as the derogatory reference to "used car" salespeople," the changing public perception of lawyers over the years has gotten worse.

This is even as the image of Lincoln, the revered country lawyer, has disintegrated into the persona of the modern attorney as "huckster."

When I entered law school in the mid-1950s, eagerly looking forward to membership in the legal profession, there is no way I would ever have imagined the concept of lawyer advertising and the degree to which it has captured the radio and especially television airwaves...nor the tawdry image of the lawyer as unethically recruiting judges for purposes of private benefit.

The same naivety would have prevented me from imagining the concept of "litigation" involving a private decider other than through the established processes of arbitration and mediation that I would later learn.

"Private judging"...What in the world would that have been?

This newly "shrouded legal specialty" - practiced mostly by retired judges and lawyers who are seeking a way out of the day-to-day practice of law - appears to have arrived as early as the beginning of the 21st Century [Muir v. Cuneo, 251 A.D.3d 638 (2d Dept. 1998)], and has been growing ever since.

It exhorts the public outcry that "aha, we knew it all along, lawyers are really out for themselves, preying on an unsuspecting public!"

Courts have acknowledged that the most ethical of lawyers will fail on occasion to notice relevant matters, inadvertently making mistakes that cost their clients, themselves, and adversely affecting the scales of justice. However, when lawyers deliberately sabotage the mechanism of the law in their own best personal interests, the entire system pays the price, resulting in a lack of trust towards the bench and the bar.

The obvious benefit of private judging is the ability of the contesting parties to have input into the selection of the decision maker. These privately-compensated individuals can hear and determine matters pursuant to provisions of civil procedure - or not.

There are those who freely employ the term private judges to describe all forms of dispute resolution alternatives to and outside the legally constructed court system, such as but not limited to arbitration and mediation.

Where cases are sent by a sitting judge for "hearing and report," the referring judge ordinarily would confirm the decision. In the current world of private judging disputes, this is no longer true.

As a result of a recent Los Angeles Times report revealing "shocking" conduct of certain retired judges, California's Chief Justice Tani Cantil-Sakauye has called for establishment of formalized oversight concerning the use of private judging.

The case in point "rocking the boat" is the role played by "judges for hire" (including a former California Supreme Court justice) involved with Girardi who is suspected of "swindling clients out of millions of dollars in settlement money."

Because the success of Girardi's unethical practices depended on private judges who "occupy a secretive corner of the legal world," fundamental questions have been raised concerning this largely unregulated industry to protect the public from "predatory attorneys."

So, there you have it, the cat is now out of the bag: What we are witnessing is an alleged collaboration between a phenomenally successful well-placed lawyer and certain formerly well-respected retired members of the bench that resulted in bilking the public.

Notwithstanding the failed attempts by certain of these private judges insisting that their social relationships with Girardi were separable from their professional connections with him, allegedly their relationships only served to provide him with an "aura of invincibility."

The record demonstrates Girardi's grip on his judicial friends held fast until finally they reluctantly testified as to what transpired. While it is not clear that all Girardi's converts knew the effect of what they were doing, others, aware of the allegations of misconduct, nevertheless assisted him in his scheme.

The most shocking aspect of all this is the disclosure of the wide power of private judges that exists in the legal system.

Unlike the activities of the California State Bar regarding the practice of law by licensed attorneys and the California Commission on Judicial Performance, responsibility for investigating complaints of private judicial misconduct, incapacity and disciplining of judges has been nonexistent. The absence of governmental provisions monitoring the conduct of private judging is a serious bottomless pit in the system.

Incredulity regarding the formerly high regard enjoyed by members of the bench ensnared is earthshaking, and the now tarnished reputations of several pillars of the California judiciary is staggering. Where have those historical judicial icons gone as they attempt to evade accountability?

While the overwhelming number of active and retired jurists are above reproach, I am sad to say it remains true that "one bad apple spoils the whole barrel."

As a "kicker" to all of this, it would not be surprising if the private judging organizations race to isolate or insulate themselves from the brewing storm of public outrage and indignation that's been gathering steam.

In addition to the retired judges - whom I know and respect - honorably presiding over cases outside the court system, currently sitting jurists may be reevaluating the potential rewards of private judging as a "cushy" retirement Plan.