Fraternity: Lawyers and Judges in Collusion Law loses its
By Chief Justice John F. Molloy
(Author Miranda Decision, AZ.)
When I began
practicing law in 1946, justice was much simpler. I joined a small Tucson
practice at a salary of $250 a month, excellent compensation for a beginning
lawyer. There was no paralegal staff or
expensive artwork on the
In those days, the judicial system was straightforward and
efficient. Decisions were handed down by judges who applied the law as
outlined by the Constitution and state legislatures. Cases went to trial in
or two, not years. In the courtroom, the focus was on
uncovering and determining truth and fact.
I charged clients by what
I was able to accomplish for them. The clock did not start ticking the minute
they walked through the door.
The legal profession has evolved dramatically during
my 87 years. I am a second-generation lawyer from an Irish immigrant family
that settled in Yuma. My father, who passed the Bar with a fifth-grade
education, ended up arguing a case before the U.S. Supreme Court during
The law changed dramatically during my years in the
profession. For example, when I accepted my first appointment as a Pima
County judge in 1957, I saw that lawyers expected me to act more as a
referee than a judge. The county court I presided over resembled a gladiator
arena, with dueling lawyers jockeying for points and one-upping each
other with calculated and ingenuous briefs.
That was just the beginning.
By the time I ended
my 50-year career as a trial attorney, judge and president of southern
Arizona's largest law firm, I no longer had confidence in the legal
fraternity I had participated in and, yes,
I was the
ultimate insider, but as I looked back, I felt I had to write a book about
serious issues in the legal profession and the implications for clients and
society as a whole. The Fraternity: Lawyers and Judges in Collusion was 10
years in the making and has become my call to action for legal
Our Constitution intended that
only elected lawmakers be permitted to create law.
Yet judges create
their own law in the judicial system based on their own opinions and
rulings. It's called case law, and it is churned out daily through the
rulings of judges. When a judge hands down a ruling and that ruling survives
appeal with the next tier of judges, it then becomes case law, or legal
precedent. This now happens so consistently that we've become more subject
to the case rulings of judges rather than to laws made by the lawmaking
bodies outlined in our Constitution.
This case-law system is a
constitutional nightmare because it continuously modifies Constitutional
intent. For lawyers, however, it creates endless business opportunities.
That's because case law is technically complicated and requires a lawyer's
expertise to guide and move you through the system. The judicial system may
begin with enacted laws, but the variations that result from a judge's
application of case law all too often change the ultimate
When a lawyer puts on a robe and takes the
bench, he or she is called a judge. But in reality, when judges look down
from the bench they are lawyers looking upon fellow members of their
fraternity. In any other
area of the free-enterprise system, this would be
seen as a conflict of interest.
When a lawyer takes an oath as a judge,
it merely enhances the ruling class of lawyers and judges. First of all, in
Maricopa and Pima counties, judges are not elected but nominated by committees
of lawyers, along with concerned citizens.How can they be expected not to be
beholden to those who elevated them to the bench?
When they leave the
bench, many return to large and successful law firms that leverage their
names and relationships.
Business of law
The concept of "time" has been
converted into enormous revenue for lawyers. The profession has adopted
elaborate systems where clients are billed for a lawyer's time in six-minute
increments. The paralegal profession is another brainchild of the fraternity,
created as an additional tracking and revenue center. High powered firms have
departmentalized their services into separate profit centers for probate and
trusts, trial, commercial, and so forth.
The once-honorable profession of
law now fully functions as a bottom-line business, driven by greed and the
pursuit of power and wealth, even shaping the laws of the United States
outside the elected Congress and state legislatures.
Today the skill and gamesmanship of lawyers, not
the truth, often determine the outcome of a case. And we lawyers love it.
All the tools are there to obscure and confound. The system's process of
discovery and the exclusionary rule often work to keep vital information
off-limits to jurors and make cases so convoluted and complex that only lawyers
and judges understand them.
The net effect has been to increase our need
for lawyers, create more work for them, clog the courts and ensure that most
cases never go to trial and are, instead, plea-bargained and compromised.
All the while
the clock is ticking, and the monster is being fed.
sullying of American law has resulted in a fountain of money for law
professionals while the common people, who are increasingly affected by
lawyer-driven changes and an expensive, self-serving
bureaucracy, are left
confused and ill-served.
Today, it is estimated that 70 percent of low-
to middle-income citizens can no longer afford the cost of justice in America.
What would our Founding Fathers think?
This devolution of lawmaking by
the judiciary has been subtle, taking place incrementally over decades. But today, it's engrained in our legal system, and few even question it. But the
result is clear. Individuals can no longer participate in the legal
It has become too complex and too expensive, all the while
feeding our dependency on lawyers.
By complicating the law, lawyers have
achieved the ultimate job security. Gone are the days when American courts
functioned to serve justice simply and swiftly.
It is estimated that 95
million legal actions now pass through the courts annually, and the time and
expense for a plaintiff or defendant in our legal system can be absolutely
Surely it's time to question what has happened to our
justice system and to wonder if it is possible to return to a system that
truly does protect us from wrongs.
Molloy was elected to the Arizona Court of Appeals, where he served as chief
justice and authored more than 300 appellate opinions. Molloy wrote the final
Miranda decision for the Arizona Supreme Court.
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