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Legal Myths vs Reality

By Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.
MYTH: The U.S. Constitution and Bill of Rights were the result of purely imaginative thinking by the Founders.

REALITY: Every Clause in the U.S. Constitution and Bill of Rights was the result of the Founders’ knowledge and fear of human nature and British and European leaders in history going back over 3000 years, along with huge doses of compromise. The Founders intended to address and correct policies that various governments actually perpetrated against their citizens that robbed the citizens’ liberty. In reading the Bill of Rights, which are the first ten Amendments to the Constitution, one clearly sees powers that the Founders did not want to give to the new U.S. government. In studying each one carefully, one sees exactly the acts that European countries did, especially Britain, that offended the colonists and Founders.

For instance, and vastly simplified, Amendment 1 says that the government shall make no law regarding the establishment of religion. In other words, there will be no government-sponsored religion. This grows directly out of England’s history of imprisonment, torture, death and taking of property owned by citizens. Usually, the property was given to the government, i.e., the King or Queen. The government would then, in turn, give the property to their favored supporters (the Founders knew that good and fair rule of law applies equally to all citizens, not to the favored few, or depending on who in power you know).

This Amendment reflects the history of religious wars as a result of various periods of state-authorized and imposed religions. In pre-American Revolution times, British Catholic governments would torture and burn the Protestants to death because they believed that the Catholic faith was the only true faith, and must be supported by the government to the exclusion of all other religions. Then the Protestants would seize power and promote their religion as the only true religion and would torture and burn the Catholics to death for the same reasons.

This was followed by the religious coup that held that only Puritanism (a form of Protestantism) was the true religion, which led to the beheading of the non-Puritan English king. The Puritans then took over the government and permitted only their religious practices, resulting in further religious persecution. The Founders remembered the religious wars that led to terrible deaths of Scots Catholics by English Protestants, and many other acts of persecution in the name of one religion or another across the world. (And continuing all over the world today.)

Some of these persecutions led directly to English fleeing to some pre-American colonies (for example, States now called Rhode Island, Connecticut, New Jersey and Pennsylvania). The Founders wanted to avoid such persecution in this new country that they were founding by declaring that the U.S. will not have a state supported religion, in other words, citizens are free to worship as they please, or not at all if they chose. Usually the Federal government will not interfere in religious practices, except in very narrow circumstances such as child immunization from diseases, which can affect the entire community.

The reader is invited to review the Bill of Rights to see that every right guaranteed to us is there because some European or British government had taken over that right and not permitted the citizens to enjoy it. The existence of each and every guarantee to us, and part of the basis of why 13 individual colonies agreed to join together into one country, was the result of vast experience of the Founders, either learned or personally experienced. None of it should be taken lightly, or without some knowledge of the history that created the guarantees. The Founders knew that if one does not know history, one is doomed to repeat the errors.

MYTH: Lawyers are not subject to rules governing their conduct, either in and out of a courtroom.
REALITY: Lawyers actually are subject to many rules of conduct. Attorneys must follow each and every law that governs us all. In addition, lawyers must follow each and every one of the Rules of Professional Conduct (these rules govern attorney behavior and sets out penalties for violations). Lawyers also must follow the Standards of Civility. Civility is defined by Webster’s Dictionary as courtesy and politeness. (Trial lawyers know intuitively and by training that juries do not like lawyers who are not civil in the jurors’ presence, notwithstanding television portrayals!).

Revisions to these rules were adopted in January, 2020, after almost four years of work to revise them. The goal of the Civility Standards is to remind lawyers how much civility matters, despite whatever they may see on television, in the news or in films. These standards apply whether in a courtroom or not. The standards apply to the modern era, including email and other social media. The standards not only must be complied with, but the revisions encourage lawyers to go further than required. Violation of these standards can be used in disciplinary hearings of lawyers. The lawyers who worked on the revisions hope that attorneys can lead instead of follow in civility.

MYTH: Once an elected New York State employee retires, (s)he is off the State payroll and only on the pension roll.
REALITY: An elected official in New York State can retire from the elected job and begin to collect a pension. Then the official can go back to the elected job, if re-elected, and collect that salary as well. The retirement need be no more than one day to collect both pension and salary. And throw in Social Security at a certain age, and the income is rather nice!

A current example comes from Onondaga County. William Fitzpatrick, Esq., 67 years old, has served as the Onondaga County District Attorney for about three decades. He retired from that job for one day, December 31, 2019. On January 1, 2020 he took the position that he had been elected to in November, 2019.

Yes, you’re quite right-Onondaga County District Attorney! So, he now receives his full D.A. salary AND his retirement pension. Since he was retired one day, his wife on his death will receive a full death benefit as a result of his service, as well as her own retirement as a State Judge. This retirement scheme is not available to the Judge since she was not elected, but was appointed. However, she can certainly run for election to another position if she otherwise qualifies, and then “double dip”, that is, receive income from two sources at the same time.

Giving attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.


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