EVOLUTION OF JUDICIAL TYRANNY:

"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).

“This
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 cos
t.



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,
dissenting.



“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.

Monday, October 5, 2015

States do not have a legitimate interest to protect reputation of a private group and of a branch of the government through occupational licensing

As a law student and then a lawyer, I kept hearing about the legal profession to be "self-regulated", and about the goal of attorney licensing as "protection public confidence in reputation of the bar and the judiciary".

As of February 25, 2015, self-regulation of professionals by themselves without state oversight was declared by the U.S. Supreme Court to be a violation of federal antitrust laws.

Occupational licensing is done under the so-called police power, which is exercised (allegedly) in order to protect:

  • health;
  • safety;
  • well-being
  • of persons and property
That's all.

Health, safety and well-being of persons and property.

Not reputation of the regulated professionals.

Yet, the regulation of lawyers apparently has two additional goals, which override the goal of consumer protection:

  • preserving public confidence in reputation of the bar;
  • preserving public confidence in reputation of the judiciary

Now, the overwhelming majority of judges in all states are licensed attorneys, so regulation of attorneys and of judges is practically the same, no judge can remain on the bench if his license is pulled.

Occupational regulation of lawyers is, therefore, declared to have conflicting goals:

  • protecting legal consumers;
  • protecting lawyers and judges FROM legal consumers, because protection of reputation of the bar is carried out by rules that impose gags on attorney speech as insiders criticizing judicial misconduct

Now, maintaining public confidence through public ignorance, by quashing legitimate criticism of the judiciary through the means of attorney discipline has nothing to do with the MAIN declared goal of occupational licensing, consumer protection.

And, especially after the U.S. Supreme Court's ruling in North Carolina Board of Dental Examiners v. FTC that occupational regulation by supermajorities of members of the regulated profession may constitute a violation of federal antitrust laws, the crookishness of quashing attorney speech under the guise of attorney regulation became even more visible.

The crookishness of quashing of attorney speech on matters of public concern grows to epic proportions when, obviously to address personal concerns of disciplinary boards for antitrust violations, commissions are established that put smoke screens before the public that something is done by such committees to make attorney discipline "uniform, fair and efficient", while deliberately ignoring the core of the problem:

the use of attorney regulation against civil rights attorneys BECAUSE of their activity as civil rights attorneys and BECAUSE they try to do their duty and present to the public, taxpayers and voters, information about judicial misconduct, an issue of grave public concern.

What is especially bad that members of the Commission "advocate" for change for purposes of protection of consumers, while adamantly fighting against the same causes they advocate in federal civil rights lawsuits.

The Final Report of the New York State Commission for Attorney Discipline does not say a word about restructuring attorney discipline to stop it from being an ongoing federal antitrust crime (North Carolina State Board of Dental Examiners), but instead says a lot of preservation of reputation of the bar and the "legal system":


Which brings me back to my original question - does a state have a legitimate interest, when exercising its POLICE POWER that is given to the states ONLY AND EXCLUSIVELY to protect health, safety and well-being of people and property, to engage in efforts of protecting reputation of:

  • a class of private professionals; 
  • the "legal system"

In other words, New York State Judiciary (because the Commission was formed by Chief Judge Lippman and consists of a lot of judges as its members) claimed in the Report that one of the legitimate goals of occupational licensing - BY the judiciary - is to protect reputation of the branch of the government that regulates attorneys' livelihood.

The government does not have a legitimate interest in protecting ITS OWN REPUTATION by regulating any given profession, such regulation has obvious due process and free speech implications.

Yet, the government in New York does just that, by repeatedly disciplining attorneys for criticizing judges:

  • through attorney discipline;
  • through court-created "rules of frivolous conduct", arbitrarily applied only to civil rights attorneys;
  • through arbitrary application of fraud upon the court statutes exclusively against civil rights attorneys and attorneys who criticize judicial misconduct.
At that background, the case out of a Kentucky federal court decided 6 days after the New York State Commission's report came out, which refused to infringe upon free speech under the guise of occupational regulation,  is so refreshing.

Yet, here am I, an attorney and part of a long-existing and ever growing class of attorneys who are sanctioned for criticizing judicial misconduct.

I am waiting when the fresh winds from Kentucky and U.S. Supreme Court will get through the heads of New York state judges.

And I hope against hope that I will see invalidation of sanctions upon attorneys for criticizing judges during my lifetime.

After all, the "legal system" is already effectively protecting its reputation, by giving to itself a gift of absolute judicial immunity for malicious and corrupt acts and judicial disciplinary commissions consisting of judges and lawyers regulated by judges who will never pursue a judge for fear of their own livelihood, which is applied in the following way:

“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.

And, after all, it's time to remove attorneys from the grip of free speech-quashing regulation that was condemned by a Pennsylvania judge 135 years ago, before it was even born:  

“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).

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