I’m Not Running for Office

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by James Ostrowski by James Ostrowski

One of my specialties is suing politicians. Oops, I just violated the code of ethics by referring to myself as a specialist. Strike that, call it a niche. I am not a specialist. I am not a specialist. . . To call yourself a specialist, you have to be certified by somebody who is certified by somebody who is not certified by anybody (a bureaucrat).

Beyond civil service protection, the courts have placed certain constitutional restrictions on what would normally be allowable political firings. Basically, you can’t fire a non-policymaker for political speech or action and you can’t fire people for their spouse’s political activities.

Oddly enough, I have become the favored lawyer for a certain faction of the Democratic Party in Buffalo to sue the other faction for their Machiavellian machinations. Apparently, they trust me because my politics are so far out they know I will not cut deals with the other side or the Republicans. Also, the machine has never given me anything but grief and they do not have anything I want. Many lawyers are bought off with promises of judgeships or other offices. I, myself, am not running for office; I am running from office. I saw what it was like for my father to be a hard-working, honest judge in a corrupt town. Not pleasant. He was always an outsider, a threat, because they couldn’t count on him to play ball.

Many public officials are absolutely immune from suit. The President cannot be sued for money damages for official acts committed while in office. And this guy acts like it too. (Clinton was sued for prior bad acts.) Prosecutors are generally immune from suit as are judges and legislators performing official acts. There is also the problem of "standing" when you sue a prosecutor. Here’s my attempt to find a loophole. Most other officials can be sued but benefit from the complex doctrine of qualified immunity. If the law was not "clearly established" or their acts were "reasonable," they are off the hook.

It gets better. Even when they can be sued, the government indemnifies them and pays for their lawyers. Often, they are entitled to outside, private counsel due to conflicts of interest. The politicians shamelessly use this opportunity as a form of political patronage. Defending these complex cases for years at generous hourly rates can add up to huge legal fees for politically-connected firms. These firms, usually the large, corporate-type firms, then wear you down with paperwork, document demands, depositions that last for days and voluminous pretrial motions and appeals. Maybe you beat them like a gong, but they have the last laugh. You are on a contingency fee; they are getting rich billing by the hour while "losing" these pretrial battles. They have unlimited expense accounts while your clients are taking bottles back to the store to pay for expensive transcripts, investigators and economists.

In one case, the defendants hired four outside firms, including four of the five largest firms in town. They also had in-house counsel and long-term outhouse counsel. I swear at one deposition they had nearly ten lawyers or paralegals bumping into each other. I divided my forces (left brain/right brain) in the face of a superior enemy with the usual result.

Digging deeper into this morass, we find additional ramifications. By spreading the legal work around, the politicians guarantee these high-priced lawyers will never be hired to sue them. That would be a conflict of interest. Further, this practice politicizes most of the large firms in town. This keeps the lawyers in line. In days of yore, lawyers were critical to the fight for liberty, justice and individual rights. Twenty-four signers of the Declaration of Independence were lawyers. Now, many lawyers, who would otherwise have the savvy to expose and battle the corrupt machine, have been bought off with large retainers.

In the end, the use of the courts to hold politicians accountable for their behavior is not a promising option. The politicians make the taxpayers pay for their misdeeds and they even manipulate the system to supply political patronage to favored lawyers. The politicians are not responsible by reason of the taxpayers’ insanity.

September 15, 2003

James Ostrowski is an attorney practicing in Buffalo, New York. See his website at http://jimostrowski.com.

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