The Clubhouse and the Courthouse
By Henry J. Stern
July 30, 2003

 
    Yesterday's column, "The Origin of Judges", hyperlinked an editorial in the Daily News about judicial patronage in the borough of Queens, whose powerful Democratic county leader is Thomas J. Manton.  I suggest you print it out, and read it at your convenience.  This column will clarify what judicial patronage is and how it works.

    Under the laws of the State of New York (and other states) judges, at their discretion, may appoint lawyers in private practice to serve as administrators of estates (in cases where the person who died has not left a will, or if the will cannot be found), receivers for companies, guardians ad litem for children, criminal defense lawyers for defendants who cannot afford to hire a lawyer, and other cases where a person's rights are being adjudicated and he/she is not represented.

    Judges also have the authority to appoint referees to hear the details of cases where there are complex or time-consuming questions to investigate, or mathematical computations to be made. There are various situations where an independent lawyer has to be found to assure that the views of all those affected by a litigation will be considered, whether or not they are represented by privately hired counsel.  The fees that these appointees receive can vary from three to six or seven figures, depending on the complexity of the case or the size of the estate.
 
    In the interest of fairness and justice, the sitting judge should appoint the most qualified attorney who is willing to take the case at a modest fee.  In the real world, some judges rely on politicians to recommend lawyers to them for appointment.  These lawyers are recommended on the basis of political activity or contributions rather than legal ability or judgment. This practice can be expensive to estates, especially when the Judge orders the lawyer paid on a percentage basis.  There is also the possibility that the lawyer chosen will remit part of his fee to the clubhouse for getting him the appointment.  If this were done directly, it would be a crime.  But buying a table for dinner is much harder to relate to a specific legal recommendation.  Even more important, there is no assurance that a lawyer chosen through politics will be qualified or industrious, although some undoubtedly are.
 
    A number of suggestions have been made to improve this situation.  One is that lawyers seeking court appointments should apply to a panel, which would look into their specific abilities and fitness to serve.  Judges would only be allowed to appoint attorneys approved by this nonpolitical panel.  Another plan would be for the panel to select a number of nominees, from which the judge would appoint his choice.  Or the panel, monitored to assure that it followed objective standards, could choose the lawyer to be appointed.

    Let it be clear that political activity should be no barrier to judicial appointment.  It is desirable that lawyers be encouraged to participate in the process in which public officials are chosen.  (Not that many of them need much encouragement.)  But neither should political activity give a lawyer preference in receiving a judicial appointment.

    The devil may argue that if it is politics that will make them judges (as is usually the case), why shouldn't politics get them some minor league experience.  The answer to that cynical inquiry is that it best serves justice to have the finest attorneys to represent people who cannot choose their own lawyers.  The bottom line should be recruiting honest, competent and dedicated attorneys to do this important work.  We should not rely on lawyers appointed as a political reward, who may or may not be qualified, but whose allegiance is likely to run to the clubhouse rather than the courthouse.

Henry J. Stern is the director of NYCivic.