THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:

"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 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, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"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.

“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.

Sunday, January 24, 2016

The elite of New York lawyers is very afraid of increasing availability of information about the law and lawyers to the public

As I mentioned in the previous blog, New York State Bar association is to handle its annual meeting January 25 to January 30, 2016 in Hilton Hotel in New York City.

 The Chief Administrative Judge of NYS courts, Judge Markes, already addressed that upcoming meeting and expressed his happiness for judicial pay raises.

 The pay raises that NYSBA lobbied for.

 Just on January 21, 2016, New York got a new Chief Judge - Janet DiFiore, a person with a reported history of corruption and criminal misconduct.

 DiFiore's advancement was similarly lobbied by NYSBA.

 Yet, will NYSBA be able to collect on those favors from the judiciary in stalling or preventing the big change that is coming to the legal profession, the continuous un-bundling of the "advice" portion from the "information" portion of services of NYSBA members, where paying customers increasingly prefer to buy cheaper information online rather than expensive advice from licensed attorneys?

NYSBA obviously feels the death-breath of un-bundling deflating its sails - and called attorneys to arms in an unprecedented and grossly uncivilized assault on competitor information services by its president, David Miranda in his address to the to the annual meeting of NYSBA:


 




 




Attorney licensing, as any other form of occupational regulation - is a form of help offered by the government to consumers of legal services in providing, through requirement of certain education and through availability of disciplinary process, a type of guarantee of quality of services by licensed attorneys.

Of course, a license of any professional does not guarantee quality of services.

Of course, customers have a right to do their own marketing to educate themselves as to the law and as to the skills of particular lawyers.

And, increased availability of such consumer-friendly information is regarded as a threat by Mr. Miranda, a practicing attorney and the head of New York State Bar Association.

First of all, Mr. Miranda acknowledges that "change is coming to the legal profession".

Not "changes", but "change".  A big change. THE change.  It is very clear that Mr. Miranda is afraid to call Woldermort by his name and to even name The Change for fear that it would materialize quicker.

The name of the change is, very clearly, deregulation of the legal profession, where licensing of attorneys becomes unnecessary due to:

(1) increased information services about laws and lawyers provided to the public for free or at a reduced cost, via the Internet, including, but not limited to:

  • attorney ranking services (such as AVVO and others);
  • form and "how to represent yourself" book-selling authors and businesses such as NOLO, LegalZoom and others

(2) unbundling cheap non-legal services from costly legal services and providing such unbundled non-legal services to the public at a greatly reduced cost - as compared to the cost of the same services when they were bundled into a fee of an attorney.

It is very clear that not only NYSBA is aware that The Change in the legal profession is imminent - NYSBA knows where the change is coming from, and New York legal elite (as well as legal elites around the country) are not happy.

Look at how Mr. Miranda throws thinly veiled barbs at Nolo, LegalZoom and similar services and authors:

"Under the guise of providing access to 'legal services', we see profiteering entrepreneurs, unencumbered by rules of ethical conduct and responsibility, are offering low-cost "legal services".

Well, Mr. Miranda was not very much encumbered by rules of ethics and responsibility when his organization succeeded through lobbying to put a criminal, Janet DiFiore, on top of the NYS Court system.

Nor did it feel encumbered by rules of ethics or responsibility when it shamelessly lobbied to raise the already high salaries of its own regulators.

Nor does Mr. Miranda encumber himself much by rules of ethics and responsibility by irresponsibly bad-mouthing competitors and claiming that they are providing "low-cost 'legal services'", or, in other words, that those businesses who sell forms or provide attorney rankings, are engaged in the crime of unauthorized practice of law.

Selling a form is not the practice of law - and Mr. Miranda knows that many courts so far ruled in favor of Nolo and LegalZoom on this issue.

What does Mr. Miranda suggest after he nevertheless spews the lie that selling a form is the equivalent of committing a crime of unauthorized practice of law?

Here:

"The organized bar needs to prepare and adjust to - and influence - the new legal marketplace".

And just how should the legal elite, in Mr. Miranda's view, influence the "new legal marketplace"?

Here are Mr. Miranda's "methodological" suggestions:

  • "We must encourage a thoughtful focus on the future of our profession".

Whose thoughtful focus?

Authorities?  Which authorities?

Naturally, authorities regulating attorney licensing?

Those same authorities who just got two boons - a corrupt top judge known to work through connections rather than to uphold the law, and increased judicial salaries, both lobbied by Mr. Miranda's trade organizations, NYSBA?

 And just what Mr. Miranda suggests to be the object of that "thoughtful focus"?

Competition, of course:

  • "online services that promise to find clients using questionable methodologies" - meaning, of course, not the usual way to find large and rich clients - through connections, favors to connected businesses and public officials - but straightforward merit-based ranking of attorneys.  The horror!
  •  "or worse, standing by while websites promise to do all legal work for consumers, without sharing the credentials of their so-called legal practitioners".
Trust a well-connected lawyer to say much without revealing any specifics, so that, while badmouthing competitors providing non-legal services, to avoid a defamation lawsuit from individuals accused of "standing by" etc.

 The hint about "websites" that "promise to do all legal work for consumers" appear to be a reference to computer software using which a customer can fill in a form and produce a legal document (contract, deed, a certain form of pleading) without paying an attorney.

 And, concealing the names of "legal practitioners" is obviously a barb aimed at such organizations as LegalZoom and Nolo that may not necessarily reveal who authored their form - because they do not provide a legal service, providing a form is not practicing law, there is no attorney-client relationship formed, and no need to reveal the names of "legal practitioners".

 Mr. Miranda also seems to be unhappy about independent lawyer-ranking services that are not in the pocket of legal elite and may undermine the perfect scored the legal elite is given by entrenched ranking systems that do not consider consumer complaints if they are not acted upon by disciplinary authorities (when disciplinary authorities are private connected attorneys acted as "state disciplinary boards").

There is also clear envy in Mr. Miranda's lamenting that venture capital is going not to legal firms, but to consumer information and lawyer ranking businesses:

"Venture capital is going to these companies, seeking to make money on the backs of lawyers desperate for work and a public starving for easy answers".

I bet it took a lot of time to craft this masterpiece of double-speak.

So, we have 3 culprits in why the bad changes are coming to the legal profession:

1) the greedy venture capitalists who want to make a buck;
2) the desperate-for-work lawyers;
3) the public starving for easy answers.

But, wait a second, why lawyers would be desperate for work?  The market of paid legal services is shrinking?  So, lawyers agree to work as non-lawyers, as ghost-writers of forms for Nolo and LegalZoom?  Indeed.com is full of such job offers, by the way.

So, Mr. Miranda acknowledges that there are actually lawyers out there who are "desperate for work".  So, something needs to be changed in the market of legal services?  Maybe, there is an overproduction of lawyers?  Or, maybe, services of lawyers are overpriced?  Or, maybe, the public needs sometimes not advice, but just a form to fill?  Or, maybe, lawyers do not use enough innovation to promote their non-legal additional services (like form-selling) - as Nolo and LegalZoom are doing?

So, to address all of issues in the market of legal services, the only solution is to direct "a thoughtful focus" on those culprits?  And to do what?  Fight Nolo, LegalZoom, ghost-writing lawyers and the public that is "starved for easy answers"?

Note how Mr. Miranda bad-mouthes the very consumers of legal services, the public, that attorney regulation is declared to be protecting.

For Mr. Miranda, anybody who does not bring a hefty fee to him, but who instead pays Nolo or LegalZoom for a form, are people with primitive thinking who are "starved for easy answers".  What a disdain to people who may not be able to afford Mr. Miranda's fee and resort to self-representation and forms precisely as a result of Mr. Miranda's lobbying!

At the same time, Mr. Miranda laments the fate of those clueless consumers who are allegedly duped by the new attorney ranking systems (which are suspicious to Mr. Miranda only because they are not under control of the legal elite).

Look how Mr. Miranda addresses innovation in providing information to consumers (that may very well lead to deregulation of the legal profession):

"While these services refer to themselves as innovators, they may be subverting the very premise of the profession they claim to be promoting".

First, form-selling, "how-to" book-selling and attorney-ranking services are not promoting the legal profession, they are separate consumer-information businesses.

Second, Mr. Miranda once again engages in his "say a lot, but say nothing" technique and does not disclose what exactly is the "very premise of the profession" that the culprits "may be subverting".

Then comes the moment of truth.

It appears that being on top of attorneys TRADE association went to Mr. Miranda's head and gave rise to a mania of grandeur:

"For our system of law to maintain its integrity, and its authority, the organized bar must be a part of the solution".

By the way, in New York, NYSBA is a voluntary non-profit, is not the official part of attorney regulation system, and does not have to be a "part of the solution".  

Mr. Miranda provides no grounds whatsoever for his claims that the whole system of law in New York, established by its sovereign, the People, has no chance to:

1) maintain its integrity, or even
2) to maintain its authority - 

if it does not involve as "part of the solution" a non-profit trade organization.  

This "me and my clan as center of universe" argument is quite morbid, and, probably, more than anything, shows that the "organized bar" needs to be surgically removed, as a financially interested party, from participation in discussing or providing "solutions" to a regulatory scheme that exists (as it is declared) only and exclusively for the benefit of consumers of legal services.

Mr. Miranda carries on, like a runaway train, that 

"we [I understand - the NYSBA, T.N.] cannot leave the job of informing the public and addressing its legal problems
to companies, staffed and funded by nonlawyers, that have only a financial stake in the transaction".

Ok, ok, Mr. Miranda, when we are talking about "jobs", you first need to be hired for a job, isn't it true?

 When a customer does not need your services consisting of ADVICE, and instead prefers to buy services of a non-lawyer consisting of INFORMATION - about the law, and about your skills as a lawyer - you have no control how that customer spends his own money.  Right?

 And since those culprit "companies, staffed and funded by nonlawyers" (the horror!) and that have "only" a financial stake in the transaction - sell only information, and not legal ADVICE, their actions are quite lawful.  Right?  And you have absolutely no grounds to interfere.  Right?  And having "only" a financial stake in doing your work right is not such a bad thing.  After all, you, Mr. Miranda, buy a lot of goods and services from people who "only" have financial stakes in doing their work right.

 Also, what about such an intangible thing as conscience, Mr. Miranda?

 You do not believe in it?  

 You only believe that services will be of high quality if done under the axe of disciplinary rules?

 That belief is based on your knowledge of your brethren in the legal profession?

 Well, there are professionals out there who take pride in what they do, Mr. Miranda, and also there is word-of-mouth, through social media, too - that will quickly eliminate the bad apples from any profession.  Isn't that exactly what you are afraid of when you are calling you brethren to "address through thoughful focus" independent attorney-ranking services?

 Mr. Miranda outdid himself in the last chord of his "squash them before they squash us" speech.

He claims that it is the public, the consumers of legal services who lose the most by "reducing the law to an easy download with no guidance".   Nothing like a sales puff of a provider of a more expensive service to get to the pocket of a customer by badmouthing a cheaper service.

And, a sales puff made based on decades of self-indoctrinated belief that a customer cannot inform himself and cannot get INFORMATION from anybody but from those who also provides ADVICE based on that information.

 Mr. Miranda, information and advice have been unbundled and went their different ways - information about the law, book-selling and form-selling went into the market of information, legal advice belongs in a separate and distinct market of legal services.

It is the market of legal advice that encroached upon and fed off the market of information about the law, and not vice versa - by bundling information into the fees for legal advice, at the much-higher cost of legal advice, while information can be sold separately from advice, and at a much lower price.

There is no monopoly on INFORMATION in this country, Mr. Miranda, especially in regards to such PUBLIC INFORMATION as the law.  The right to dispense public information is guaranteed by the 1st Amendment, and that right exists whether that information is distributed freely or for a fee.  As an attorney sworn to protect the U.S. Constitution, Mr. Miranda is bound to remember that.  Of course, self-interest can cloud anybody's judgment, but why would anybody so openly be making a fool of himself...

Claiming that information must necessarily be bundled with - and sold together with - "guidance" (legal advice, at a higher price, by providers with a monopoly for such advice) - puts Mr. Miranda and NYSBA that Mr. Miranda leads - in the same company as Louisiana funeral directors found themselves when they fought unbundled sales of simple coffins by monks, without additional cemetery plots, embalming or funeral services.

And that company, Mr. Miranda, is the company of losers. 

 The Change is coming to the legal profession - in this Mr. Miranda is right.

That change cannot be diverted or filibustered by forcing people to bring money to Mr. Miranda and NYSBA members when they only want cheap infomation and not expensive "guidance".

And, whoever continues to try to prevent that market-induced change by insisting to sit on two chairs that shift in two opposite directions, and to hold those two chairs together with his rear end - will eventually find himself sitting on the floor.




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