the archives of f/k/a . . .

  New York Law Journal has a bit of background on the decision of the New York State Bar Association to call for fitness certification of Court of Appeals judges after they reach 70 years of age.  “N.Y. Bar Delegates Approve of Certification for Judges,” by Joel Stashenko, April 4, 2007.   As we discussed two days ago (prior post), the NYSBA Task Force on the Mandatory Retirement of Judges had called for raising the mandatory retirement age of all NYS judges to 76, with fitness certification every two years after age 70, for all judges, except those on the highest court.  The NYSBA House of Delegates disagreed on the exemption for Court of Appeals judges. The NYLJ article notes that former chief state administrative judge E. Leo Milonas, who chaired the judicial retirement committee argued:

“that recertification is not necessary for Court of Appeals judges because they are the most scrutinized and ’self-monitoring’ in the sense that fellow judges would insist their colleagues step down if they are no longer able to handle the work.”

The article continues, however, that “Roger B. Adler of Manhattan was among several delegates questioning why the court’s members should get a special ‘carve-out’ while other state court judges would not.” Adler said the exemption would suggest “elitism” to the public.  That’s right, but Adler argued further:

    “It is a court and not a club.  It is inappropriate for members of the court, a closed, collegial body, to informally police sensitive issues amongst its membership.”

While I strongly agree, for reasons stated in the prior post, that there should not be an exception for the Court of Appeals judges (e.g., see the dismal record of hanging-on long past dotage on the U.S. Supreme Court described in Leaving the Bench: Supreme Court Justices at the End, by David N. Atkinson (2002), Adler’s notion that it is not the business of other judges to urge unfit brethren to leave the bench is ridiculous.  As discussed at length in my ethics and the Graying of the Bar essay (March 20, 2007), lawyers and judges have an ethical obligation to assure that their colleagues on the bench and at the bar are fit to perform competently and diligently — no matter how awkward or sensitive the task may be.  The most likely and appropriate people to offer thoughtful, compassionate, first-line intervention are those who work with a judge or lawyer.  

  Yes, we need biennial fitness certification of aged judges — even (and especially) the most powerful judges on the highest courts.  But, it is irresponsible and unethical to delegate total responsibility for “quality assurance” in the judiciary to the bureaucratic process.  One good reason, if we need one beyond our responsibility to clients, parties, profession, and the public, is the fact noted in the Retirement Task Force report: “Since 1997, over 150 [Justices of the Supreme Court] have been certificated or re-certificated; only nine have been denied certification in this time period.”   We cannot build a certification process that is free of politics and personal favoritism (and fear). Collegiality

As the NYLJ article notes, and we reported in full two days ago (decrying the lack of attention to competence issues and ethical responsibilities), the House of Delegates also approved a report by the Special Committee on Age Discrimination in the Profession (Jan. 2007, 44-pp pdf.) which calls on law firms to end the practice of mandatory retirement for older lawyers, and to instead “show flexibility in hours and work assignments for older lawyers who want to keep practicing.”