"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
case illustrates to me the serious consequences to the Bar itself of not
affording the full protections of the First Amendment to its applicants for admission.
For this record shows that [the rejected attorney candidate] has many of the
qualities that are needed in the American Bar. It shows not only that [the
rejected attorney candidate] has followed a high moral, ethical and patriotic
course in all of the activities of his life, but also that he combines
these more common virtues with the uncommon virtue of courage to stand by his
principles at any cost.
It is such men as these who have most greatly honored the profession of the
law. The legal profession will lose much of its nobility and its glory if it is
not constantly replenished with lawyers like these. To force the Bar to become a
group of thoroughly orthodox, time-serving, government-fearing individuals is to
humiliate and degrade it.” In
Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429
(1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong
dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan,
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
Wednesday, October 7, 2015
Pennsylvania leads the way in deregulation of the legal profession
The Commonwealth Court of the State of Pennsylvania, Judge P. Kevin Brobson, God bless his wisdom, has ruled that a person by the name of Gary H. Powell, was denied "representation of his choice" when the board refused to allow him to be represented by two men with suspended attorney licenses, Don Bailey and Andy Ostrowski.
Of course, Judge Brobson has ruled that representation in front of the board in challenging, on behalf of a client, of denial of unemployment benefits, is not the practice of law.
The ruling that Mr. Powell has a right to "representation of his choice" by non-attorneys raises clear equal protection issues as to litigants before other forums, like courts, because denying litigants in court "representation of their choice", without any restrictions, while allowing litigants before "a referee" the very same thing does not make any sense.
So, deregulation of the legal profession has already started, even though in a clumsy way, I will talk about it in a separate blog post.
The case of Mr. Powell clearly shows how accomplishment of the two tasks:
1) deregulation of the legal profession and undermining the basis of power and corruption for an entire class of American "nobility"; and
2) closing the so-called "justice gap" where the staggering 80% of Americans cannot afford court representation,
can be PRACTICALLY approached.
The vehicle of change should be a petition or lawsuit BY A LITIGANT who wants to be REPRESENTED BY A PERSON OF HIS CHOICE.
Since such an act may be charged as aiding and abetting unauthorized practice of law, the challenge should be first brought in court, as a challenge to constitutionality of state and federal statutes and rules restricting even a criminal defendant's 6th Amendment right to counsel (in a broad sense, as in "advisor", "representative") "of their choice" to only counsel from a list approved (licensed) by the state.
That is especially true when the state restricting the right to counsel is the state prosecuting the criminal defendant.
This is called in civil rights law a "pre-enforcement action". Whether it will succeed - I don't know, there are no guarantees.
But the wording of the Pennsylvania case that Mr. Powell has a right to "representative of his choice" clearly may be used to support an equal protection challenge - such as why my 1st Amendment Petitions Clause right is less worthy of a right for a "representative of my choice" than Mr. Powell's?
The 5th Amendment does not say "the right to a licensed counsel of your own choice", and attorney licensing did not exist at the time the 5th Amendment was enacted.
The doomsday of the licensed legal profession is near. It is only a matter of time who, out of the 80% of Americans who cannot afford representation by licensed attorneys, will file such a lawsuit out of pure despair, opening the floodgates of such lawsuits.
The ruling was in favor of the litigant's right to "representation of his choice".
Whether such a choice will mean punishment for the suspended or disbarred attorneys representing such a litigant before an unemployment benefits panel, is another story. I will continue to analyze this amazing decision in the next blog post.