Wednesday, June 24, 2009

Supreme Court nominee Judge Sonia Sotomayor seems to think different rules apply to her than to everyone else.

On Page 143 of her Senate Judiciary Committee questionnaire, she said she “practiced alone” in a side legal business from 1983 to 1986 “as a consultant to family and friends.” During that time, she also was serving as a prosecutor and then as a member of a larger law firm. Judge Sotomayor listed the name of the solo practice as Sotomayor and Associates.

Advertising a solo practice as if it has more than one lawyer is a problem. Judge Sotomayor appears to have violated this minor but clear rule of legal ethics for four years.

The American Bar Association has noted that “all state bar opinions are in agreement that a lawyer may not use the term, ‘and Associates’ if there are in fact no associates in the firm.” As reported by New York Personal Injury Law Blogger Eric Turkewitz, who first discovered this detail: “in New York, the conduct would fall under DR 2-102” of the New York Lawyer’s Code of Professional Responsibility, “which bars misleading advertising on a letterhead. If in fact Sotomayor had no associates at her firm, it would appear she overstepped the bounds of self-promotion by making her firm seem bigger than it was.”

Going back at least as far as 1973, the New York State Bar Association issued an opinion indicating that other lawyers must be present in order for the phrase “and Associates” to be used in the name of a practice.

By itself, the infraction should not derail her nomination to the Supreme Court. In the context of a series of worrisome statements and actions by Judge Sotomayor, the transgression ought to give pause to senators considering her confirmation. Just as context can sometimes excuse minor ethical infringements, context also can make minor violations a significant concern.

This violation could be considered irrelevant if it were not part of a pattern. However, this is a judge who has questioned whether she can even be impartial - in violation of the judicial oath of office. In addition, she has said that physiological factors of a judge’s ethnic identity can and probably ought to sway her opinions. She has argued that not only is the ideal that law should be predictable and understandable to the public a “myth,” but it is not even a worthy ideal.

Judge Sotomayor has tried to make - in the words of liberal columnist Michael Kinsley - “the preposterous argument that the Belizean Grove [to which she belongs] isn’t a women’s club,” even though membership in that ritzy club is open to women only. We don’t care that she belongs to such a club, or if gentlemen belong to clubs for men only, for that matter. But what Mr. Kinsley called her “brazen whopper” and “insult to the citizenry” is pertinent. That’s her practice of twisting rules and standards to fit her circumstances. This calls her veracity into question.

In that light, Judge Sotomayor’s misleading advertising back in the 1980s looks less like an oversight and more like a mark of questionable character.

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