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Attorney discipline in 1991

In 1991 prosecutor Elizabeth Holtzmann was publicly reprimanded as an attorney for accusing Judge Irving Levine of judicial misconduct. Usually, prosecutors are never subjected to attorney discipline. .

Specifically, Holtzmann was reported to have publicly released her letter stating the following:

"Judge Levine asked the Assistant District Attorney, defense counsel, defendant, court officer and court reporter to join him in the robing room, where the judge then asked the victim to get down on the floor and show the position she was in when she was being sexually assaulted. * * * The victim reluctantly got down on her hands and knees as everyone stood and watched. In making the victim assume the position she was forced to take when she was sexually assaulted, Judge Levine profoundly degraded, humiliated and demeaned her."

Holtzmann appealed discipline to the New York State Court of Appeals on 1st Amendment grounds, but lost.

One of the judges who supported the discipline against Holtzmann was Judge Joe Bellacosa. Later, Judge Bellacosa made a public appearance in front of prosecutors where he called judges, including himself, "ministers of justice" pointed out that it is wrong for attorneys and law professors to criticize judges and called upon prosecutors to out and pursue attorneys who do criticize judges.

At the same time, according to the former New York State Chief Judge Sol Wachtler, Judge Bellacosa wrote to federal prison where Sol Wachtler was held, telling his friend about sermons Bellacosa gives at his church condemning people to hell if they do not forgive prisoners (thinking about Wachtler).

Wachtler was convicted for extorting money from his former mistress in exchange for a promise not to kidnap her minor daughter.

After discipline of Elizabeth Holtzmann was affirmed by the New York State Court of Appeals, including Judge Bellacosa who can forgive a judge for extorting money from a woman for a promise not to kidnap her child, but cannot forgive a prosecutor for standing up for rape victim, legal scholars expressed concern that disciplining an attorney for criticizing a judge is antidemocratic, creates a chill on attorney speech and stifles public debate on efficient functioning of the justice system.

In the same year as Holtzmann was disciplined, the Supreme Court of the State of Missouri also disciplined a prosecutor for criticism of a judge, but there was a lengthy dissent challenging legitimacy and constitutionality of such discipline, including the "objective standard" used in disciplining the Missouri prosecutor - and Elizabeth Holtzmann in New York. .

Since prosecutor Holtzmann was disciplined in 1991, there was just one more reported case of prosecutor discipline in New York, of the Albany County District Attorney Paul David Soares, and also for criticism of a judge.

DA Paul David Soares was disciplined specifically for sending to the press his opinion about a judge's decision to disqualify his office from a criminal case after he was sued by the criminal defendant:

"Following the determination of Judge Herrick to replace respondent's office with a special district attorney and in response to various media inquiries regarding the matter, respondent's office, on November 15, 2010 sent an electronic message to a newspaper reporter, which stated the following: 'Judge Herrick's decision is a get-out-of-jail-free card for every criminal defendant in New York State. His message to defendants is: 'if your DA is being too tough on you, sue him, and you can get a new one.' The Court's decision undermines the criminal justice system and the DA's who represent the interest of the people they serve. We are seeking immediate relief from Judge [*2]Herrick's decision and to close this dangerous loophole that he created.' On November 16, 2010, respondent's office forwarded the same electronic message to a reporter with the Associated Press."

As a comparison, suing a judge is not considered in New York a basis for recusal of the judge from presiding over a case of the judge's opponent in litigation, the judge is allowed in such situations to be the "arbiter of his own recusal", and so, DA Soares, in protesting the decision of the judge to disqualify the prosecutor because he was sued by the defendant, was impliedly pointing out to a double standard established by the judiciary for itself, but not for other participants in judicial proceedings.

The judiciary is the regulator of the legal profession in New York, and in all other jurisdictions of the United States. There are over 1,100 regulated professions in the United States.

No other similar rules exist in the United States where the regulator of a profession issues rules prohibiting criticism of itself and punishing members of the regulated profession for criticism of itself.

As recently as in August of 2015, a witness testified to the New York Statewide Commission on Attorney Discipline describing how the District Attorney's Association resisted efforts of New York Senator DeFrancisco to establish a separate Commission for prosecutor discipline, while disciplinary committees refuse to prosecute prosecutors whose actions led to wrongful convictions.

The rule of attorney discipline for prosecutors in New York remains that prosecutors are only disciplined when they criticize a judge.

Court proceedings in New York are still not audiotaped or videotaped, under the threat of criminal prosecution, even though Elizabeth Holtzmann's case shows that videotaping and audiotaping court proceedings may be the only way to prove judicial misconduct in such proceedings.

Elizabeth Holtzmann's case remains a reminder of why victims of rape are reluctant to come forward - they run the risk of being humiliated during judicial process, and cannot obtain protection even from public prosecutors.