And, I also wrote on this blog about decisions in three states ruling, in criminal cases no less, that representation by an unlicensed individual has nothing to do with ineffective assistance of counsel.
And, I wrote a lot on this blog about the fact that all 168 jurisdictions regulating law licenses in the United States:
1) The U.S. Supreme Court acting as a regulatory agency for lawyers appearing in that court;
2) 13 federal appellate court separately regulating attorneys appearing in front of them;
3) 94 U.S. district courts, separately regulating attorneys appearing in front of them, and
4) 50 states separately regulating attorneys appearing in front of them
ALL 168 of courts acting as regulatory agencies and populated by people highly educated in the law, so far have not defined what exactly constitutes the practice of law - and since the practice of law is not clearly defined, criminal prosecution for unauthorized practice of "nobody-knows-what-it-is" is not legal.
Nevertheless, the blessed state of Kentucky now found resources to obtain a grand jury indictment against a woman (with a law degree) for unauthorized practice of law - while it cannot find resources to provide more legal services for the poor.
The individual in Kentucky, #AlmaRosaBonilla, also known as #AlmaRosaOlmedo, was charged with unauthorized practice of law, theft-by-deception and other crimes after she accepted $1,000 from an undercover officer for representation on immigration issues.
Representation in immigration proceedings, which are administrative proceedings, is first, not practicing law in state courts, and, second, does no require a law license.
All that an individual has to have to represent individuals on immigration issues is a Federal Board accreditation, and that can be given to unlicensed "reputable individuals".
So, the charges are illegal to begin with - because representation on immigration issues is not a state practice of law, but a federal issue - where a state law license is not required.
But, there are more issues in the Kentucky criminal charges.
Here is the Kentucky unauthorized practice of law (UPL) statute:
What is problematic with this statute?
Problem # 1. Judge-legislator problem, denial of impartial judicial review
There is a reason for separation of powers, why a legislator may not adjudicate or enforce the laws - because that creates an issue with impartiality.
If the court created a rule that it is then enforcing, the court may not be receptive to claims that the court-created rule is unconstitutional, and the court may not be impartial in enforcing its own rule.
Here we are dealing with the main material element of a criminal statute, what constitutes the practice of law.
First of all, the Kentucky UPL statute does not actually define what constitutes prohibited conduct, the practice of law, but instead, the legislature delegates that definition to a "rule of the Supreme Court" - making courts both legislators and adjudicators on the issue of UPL, which is an impermissible violation of separation of powers doctrine destroying criminal defendants' fundamental constitutional right to impartial judicial review.
If the Supreme Court of Kentucky both issues the law upon which criminal charges are brought, courts cannot then adjudicate such charges.
Well, in Kentucky, they do adjudicate such charges - and thus UPL defendants in the State of Kentucky, as in all other states where the definition of the "practice of law" is delegated to courts, are deprived of their right to impartial judicial review.
Problem # 2. No rigorous legislative procedure
Since the statute is based on a "rule" of the state Supreme Court, and rule-making is not subject to as rigorous a procedure as legislative acts, in Kentucky, as in all other states, definition of the practice of law is done at a whim.
Problem # 3. Delegating legislative authority to a special interest group
I doubt that the Kentucky State Legislature has authority to delegate its legislative authority to special interest groups.
That the Supreme Court of the State of Kentucky is a special interest group in regards of what does or does not constitute unauthorized practice of law, is unquestionable, because it is also a licensing agency regulating state law licensing, and consists in its entirety of licensed attorneys.
Thus, the State Legislature of the State of Kentucky entrusted foxes to guard the chicken coop, and to legislate in a way to punish their own competitors.
Legislating on subjects of personal interest is misconduct for any public official - as is delegating such legislating to a special interest group.
So, UPL statutes - across the nation - in states that allow the definition of what constitutes the "practice of law" to be governed by a court rule and not a legislative provision, may be invalid as based on the definition of the practice of law invented by a special interest group in its own favor, to punish competitors.
Problem # 4. Definition of the practice of law is vague and overbroad
Here is the actual rule of the Kentucky Supreme Court defining "the practice of law":
So, the Kentucky Supreme Court defines the practice of law as:
- any service rendered
- that involves legal knowledge or legal advice,
- whether of representation, counsel or advocacy in or out of court,
- rendered in respect to
- liabilities, or
- business relations of one requiring the services
- one member collectively represents three law schools in Kentucky,
- one member represents the Kentucky Sheriff's Association - which has absolutely no relevance or connection to access to justice for the poor and illiterate;
- one member represents the Administrative Office of court,
- one member represents the Kentucky Justice Association, and
- one member represents the Kentucky Defense Counsel.
And imagine - the representative of the Sheriff's association meets behind closed doors, as part of the "Access to Justice Commission" for the poor and illiterate, no less, and discusses court cases with judges - members of the same association.
Potential for corruption is poetic.