The Sanctity of Robes

Martin Erdmann looks like anything but a rebel lawyer. His hair is close-cut, his collar white and button-down, his tie narrow, his suit oldfashioned. Handling documents with nicotine-stained fingers and chain-smoking Lucky Strikes, Erdmann, 57, could pass for a run-of-the-mill judicial factotum behind his small, cluttered desk in Manhattan's Criminal Courts Building. Actually, Erdmann is an independently wealthy bachelor who has devoted his career to New York City's Legal Aid Society. He directly supervised 50 lawyers and did trial work before a recent switch to administrative duties. After being involved in the defense of tens of thousands of indigent clients over the past 25 years, Erdmann now must defend himself from possible disbarment.

The case is significant because it points up the insulation from attack enjoyed by judges, particularly when the criticism comes from those who know the courts best--practicing lawyers. An ordinary citizen can usually say what he will about judges, at least if he is not in front of one. A lawyer, who is technically an officer of the court, can find such criticism dangerous indeed. Erdmann, regarded as one of the best criminal lawyers in the country, is especially well qualified to speak about the shortcomings of criminal justice.

Whores and Madams. Speak he has. In a March 12 LIFE article, Writer James Mills told of Erdmann's great distress with the criminal court system in the U.S. Mills noted that Erdmann's "disrespect for judges . . . is so strong and all-inclusive that it amounts at times to class hatred." Referring to what he considers judges' unprofessional bias. Erdmann was quoted as saying: "There are so few trial judges who just judge, who rule on questions of law, and leave guilt or innocence to the jury. And Appellate Division judges aren't any better. They're the whores who became madams." Would he like to be a judge himself? "I would like to, just to see if I could be the kind of judge I think a judge should be. But the only way you can get it is to be in politics or buy it--and I don't even know the going price."

The article, in fact, spent only a few paragraphs on Erdmann's views on the judiciary. Much more space was devoted to a frightening portrayal of the creaky criminal justice system as Erdmann sees it every clay. He is not naive about his clients. About 98% of them are guilty, he says, but his duty as their lawyer is to do his best--including bargaining with prosecutors--to get defendants acquitted or secure the lightest possible sentences.

His comments about the judiciary infuriated the justices of New York's Appellate Division, First Department (Manhattan and The Bronx). They petitioned the grievance committee of the Association of the Bar of the City of New York to consider whether Erdmann had violated those canons of ethics that require lawyers to show respect for the bench. Though the Appellate Division has authority over an attorney's qualifications, initiation of formal disciplinary proceedings is normally left to the Bar Association. After some quiet, inconclusive discussions, the Bar Association decided to do nothing more than give Erdmann a private rebuke.

In an unprecedented move, the First Department decided to go further, overriding the Bar Association and bringing charges under its own authority. The case, decided the justices, would be moved to another geographical department of the Appellate Division, satisfying the technical requirement that the First Department, which lodged the complaint, would not also act as judge. The upshot is that justices of one department of the Appellate Division will be the complainant, while their colleagues from another department serve as judge and jury. Erdmann, of course, had spoken of all Appellate Division justices, not just those of the First Department.

Chilling Effect. The dubious affair came to light only when Erdmann's lawyer, William Leibovitz, together with the American Civil Liberties Union, went to federal district court to argue that the First Department's justices were violating Erdmann's civil rights. Federal Judge Sylvester J. Ryan said that the issue was out of his jurisdiction, and Erdmann has taken the case to the U.S. court of appeals.

Leibovitz contends in his brief that the incident already has had a "chilling effect" on other lawyers who might criticize the courts. Few attorneys, in fact, would comment publicly on the case, though some have filed affidavits in Erdmann's defense. They may disagree with his salty language, but they object strenuously to the notion that judicial robes entitle their wearers to sanctity.

Two Harvard Law School professors, James Vorenberg and Alan Dershowitz, say in their affidavits that they are considering using Mills' article in their criminal law classes. If the case goes forward, Dershowitz contends, "it will significantly deter important scholarly and journalistic criticism of the judiciary by attorneys." Disciplining Erdmann, says Vorenberg, "would lead students and young lawyers to believe that it is dangerous to speak out on controversial issues."

Former U.S. Attorney General Ramsey Clark contends that the Sixth Amendment guarantee of the right to counsel gives lawyers full freedom to criticize the judiciary; James Shellow of Milwaukee, secretary of the National Association of Criminal Defense Lawyers, asserts that the Erdmann affair "will further support those in the judiciary who feel that they are immune from criticism." Adds Robert H. Levy, a Legal Aid lawyer: "We all now feel forced to choose between abject silence and loss of our profession. One may, it appears, elect to exercise one's own right of free speech or forsake it in order to continue to protect the rights of one's clients."

There is some evidence that the First Department itself is split on the issue, and that some of the ten justices feel that the court's reputation would be better served if the case were dropped. It is also possible that the proceeding will result in some mild admonition rather than the maximum penalty of disbarment. The irony is that the court acted, ostensibly, to protect its dignity but actually impaired it by seeming to suffer a bad case of the sulks. Whatever happens, Erdmann is likely to emerge either a hero or a martyr--or both.

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