Last year, the President of the U.S. recognized that occupational licensing takes 25% of the U.S. labor market (while other sources put the number at 29% in 2006, 10 years ago), and that it may result in unfair labor practices and in stifling the U.S. economy.
The U.S. Supreme Court recognized the stifling effect of occupational licensing by undertaking last year an extraordinary step of withdrawing the so-called "state immunity" from licensing boards where licensed private professionals, allegedly on behalf of the state, license and discipline their own competitors, without state statutory approval and without state neutral supervision of their anti-competitive activities.
I filed a complaint with the Federal Trade Commission in April of 2015 and in September of 2015 requesting enforcement of the U.S. Supreme Court decision against New York State attorney regulating authorities - while the Commission assured me that it will investigate, and, so far, failed to come back with any results. And that is, while FTC, in a joint letter with DOJ, publicly recognized this year, after my complaints to FTC were filed, that what constitutes the practice of law, is not clear - and thus that regulation of the practice of law is one big violation of the 5th and 14th Amendment, and a big sham.
I will, of course, follow up as to the investigation of the FTC against NYS attorney regulating authorities with a FOIA request and report on the outcome.
Yet, despite the lip service attempting to control its stifling effect from the U.S. President, from the U.S. Supreme Court, and from the FTC, occupational regulation in the U.S. continues to stifle the economy and hurt, rather than help consumers.
People are punished and even jailed for feeding the poor and homeless, like it happened in Florida this year, on the pretext that those poor and homeless need protection from bad food - while what they need is food. Police was destroying good food distributed to homeless people by religious organizations under the guise of enforcing occupational regulation laws.
As a parallel example, Russia is slammed with criticism - from outside and within the country alike - for destroying good food as some kind of weird self-punishment (and, in reality, punishment of its own low-income and disabled citizens) as a response to Western sanctions against the Putin government for their actions in the annexation of the Crimea and for the war in the Ukraine.
Yet, at the same time, in Florida, police destroys good food in front of hungry people - and claiming to enforce laws seeking, allegedly, to protect those same people.
While in Russia the bizarre and criminal destruction of food instead of giving or selling it to people is openly made on political grounds, in Florida and other states of the U.S., occupational licensing and "protecting consumers" (protecting the hungry homeless people from food) is used as a pretext.
Occupational licensing is used not only as a pretext to destroy good food in front of hungry people, it is also used to create hungry people - by denial or revocation of occupational licensing for reasons that have nothing to do with protection of consumers.
Licenses are revoked or denied for reasons having nothing to do with protection of consumers, like criticism of authorities.
Licenses are required for occupations like hair-braiders, with ridiculous educational requirements that have nothing to do with the practice of the profession, thus driving providers out of states with such regulations and raising prices for services of the remaining practitioners.
Licenses are required for occupations like fortune tellers, where one must wonder how "protection of consumers" and "quality services" are assured. Regulation of fortune tellers is seriously claimed by the government to be done to protect consumers from fraud.
Fraud from what? When the government claims that there is "good faith fortune telling" and "bad faith (fraudulent) fortune telling", we are hitting the rock bottom of stupidity.
Regulation of the legal profession is no better than regulation of tarot readers or fortune tellers.
First of all, none of the U.S. jurisdictions have a clear statutory definition of what the practice of law (PL) is. It is like obscenity - you are supposed to know it when you see it - and the Federal Trade Commission, together with the U.S. Department of Justice, recently recognized just that - that what constitutes the practice of law, is not clear.
Yet, for purposes of governmental regulation of people's fundamental right to earn a living, guessing what PL is and relying on definitions by courts (themselves market players and licensed attorneys) made on an ad-hoc, in-arrears way, is not enough for a constitutionally sufficient notice to the public as to what is being regulated, under the 5th and 14th Amendment of the U.S. Constitution.
Nor is it enough for purposes of criminal prosecution for unauthorized practice of law (UPL) where what is UPL cannot be clearly defined when what is PL is not clearly defined.
When there is no clear statutory notice as to what PL and UPL is, criminal prosecution of UPL laws across the country is patently unconstitutional and is done, same as regulation of law, on an ad hoc, in-arrears judicial definitions as to what UPL is.
The conceptual mess in occupational regulation in general and attorney regulation in particular results in bizarre decisions.
Several states claimed that it is not ineffective representation in criminal court for purposes of reversing convictions, to have the criminal defendant being represented by a suspended or disbarred attorney.
While suspension or disbarment is claimed to be not a criminal punishment, but a "civil" measure of "protection of the public", apparently, when a criminal conviction is at stake, the courts reversed course and claimed that that measure of protection is meaningless and has nothing to do with effective representation of criminal defendants.
The U.S. Supreme Court allowed non-lawyers to represent people in court where the government cannot satisfy the need for legal representation of the indigent and the illiterate - in a "jailhouse lawyer" case.
Don't try though to bridge the "justice gap" that licensed attorneys/judges like to talk so much, offering services of non-lawyers in criminal court or in Family Court CPS proceedings, or in civil rights cases - the market players will quickly invoke UPL laws.
In Pennsylvania, market players/licensed attorneys, used attorney regulation to derail, convict, shame and shut up the elected public official, the Pennsylvania Attorney General Kathleen Kane, for doing her job and investigating and prosecuting misconduct among judges and prosecutors.
In the same Pennsylvania, the outrageous Kids for Cash scandal happened because market players were using attorney regulation to stifle reporters of judicial misconduct.
In the same Pennsylvania, market players actively seek to deny reinstatement of civil rights attorney Ostrowski who received an astounding public support recently when he ran for U.S. Congress on Judicial Reform platform, for what Pennsylvania admitted does not constitute the practice of law during suspension - representation of a client before an administrative board.
In New York, the New York State Court of Appeals, a panel of 7 market players, just several days ago, illegally usurped the power to legislate and criminalized as UPL paralegal activities for disbarred attorneys, but not for individuals who never had law licenses, and while NYS Court of Appeals does not have legislative power as to enacting or amending criminal laws in New York.
The bizarre due process violations in attorney regulation does not end with the lack of clarity as to what is being regulated.
It also concerns regulation by competitors, adjudication of discipline by competitors, appeals by competitors (licensed attorneys) - all deemed federal antitrust violations by the U.S. Supreme Court, the antitrust violations that continue to happen in regulation of attorneys in state courts, federal courts and the U.S. Supreme Court itself that regulates its own "bar", while every single judge of the Court is a licensed attorney.
Competitors regulating competitors create rules precluding effective remedies for attorneys for wrongful revocation of licenses.
A revocation of professional license means a destruction of reputation and livelihood for even the most accomplished and well-known legal experts.
Law professors are afraid to file amicus briefs in support of appeals of attorney discipline.
Joel Brandes, a recognized expert in law and an author of books in Family Law in New York, was arguing to the New York State Court of Appeals that he needed to have his law license reinstated because otherwise publishers would not publish his books - books of a well recognized expert, rejecting knowledge a wisdom because Joel Brandes has a brand of disapproval of the government upon him.
Unlike other countries where the legal community vigorously opposes judicial control over independence of court representation, the legal community in the U.S., in its majority, hands such control over to the judiciary without much challenge - and keeps silent as a means of self-preservation, even when being silent causes grave harm to vulnerable people, and the harm can be prevented by reporting it.
Bar associations distance themselves from suspended and disbarred attorneys and refuse to have them even as their so-called "lay members", without regard to the reasons of suspension or disbarment - so, even if the disbarment or suspension was unconstitutional, bar associations do not care and still shun attorneys in order to protect their own licenses and businesses, and the "good graces" of the regulating judiciary.
Unlike other regulated profession in the United States, where discipline and license revocation is handled by administrative boards which are, even if populated by supermajorities of market players, are later reviewed by courts where judges are not plumbers, doctors, insurance brokers, real estate agents reviewing discipline of their own competitors.
Attorneys are denied such an impartial judicial review where the "court disciplinary proceedings" are done by judges-attorneys, competitors of the disciplined attorneys.
Occupational licensees other than attorneys can file a federal lawsuit without the risk of running into the judicially created "Rooker-Feldman" "jurisdictional bar" to a civil rights actions, one of many judicially created bars to civil rights litigation, because license revocation in an administrative proceeding is not subject to the Rooker-Feldman doctrine.
Yet, since, attorney disciplinary proceedings are positioned as "court proceedings" instead of administrative proceedings, the same license revocation, as a "judicial proceeding", even though attorney disciplinary proceedings have the nature of an administrative proceeding, even though they are handled by courts. The courts are acting as licensing agencies, and thus acting in an administrative capacity.
Yet, courts deny challenges to the nature of attorney disciplinary proceedings as administrative, and that allows courts to bar attorneys from the equal opportunity to file a federal civil rights action complaining about their wrongful discipline.
As an example, federal courts recently ducked the equal protection challenge to such a disparate classification of attorney disciplinary proceedings when the 2nd Circuit affirmed dismissal of that challenge in Neroni v Zayas, Case No. 13-127, by the U.S. District Court for the Northern District of New York - thankfully, in a non-precedential summary order, so another equal protection challenge in another district can still be mounted.
But, of course, review in federal court is also a review by market players and competitors, because federal judges have, as a pre-requisite of remaining on the bench, to maintain their state attorney licenses, so the federal civil rights lawsuit, and judicial rules set for such lawsuits, are also decided by market players and competitors.
In the rigged system of attorney regulation, where market players permeate every level of review in all courts, state or federal, it is important to have some forum where a wrongfully disciplined attorney can raise the claim of violation of due process before a panel of non-attorneys, non-competitors.
I will cover in this blog article applications to 4 bodies:
- The U.S. Federal Trade Commission;
- The United Nations Commission on Human Rights;
- The U.S. National Labor Review Board, and
- The Florida State Treasury
As I mentioned above, I tried to submit the claim of wrongful attorney discipline to the Federal Trade Commission - and am still waiting for an answer from the Commission, even though the claim is procedural, straightforward, and is based on irrefutable documentary evidence:
- there is no statute in New York authorizing even the existence, much less the anticompetitive activities of the so-called "Attorney Grievance Committees", thus violating the "clear statutory articulation" prong of North Carolina Board of Dental Examiners v FTC (NC Dental);
- all Attorney Grievance Committees in New York are populated by 21 members, where only 3 out of 21 members are not attorneys, which results in a super-majority of market players (competitors) on such boards regulating their own competitors
- There is no active state supervision over the anti-competitive activities of such Attorney Grievance Committees by a neutral state body not populated and governed by attorneys. Attorney Grievance Committees are deemed an "arm of the court", a body populated and governed by licensed attorneys, and a body that, by virtue of legislating, investigating and prosecuting (through its "arm") and adjudicating the disciplinary proceeding, defy the claim that attorney disciplinary proceedings are "judicial" in nature - because there is no neutral adjucator present and no true adversarial process present.
In Florida, a wrongfully disciplined attorney, Erwin Rosenberg, tried two possible remedies for wrongful denial of livelihood, by addressing a wrongful disbarment to the U.S. National Labor Review Board and the Florida State Treasury.
Erwin Rosenberg went to NRLB and Florida State Treasury after a federal court, populated and run by judges who are all attorneys, licensed by the Florida State Bar, defendant in civil rights litigation that disbarred Erwin Rosenberg, denied his claim against the Florida State bar, the regulator of federal judges.
The federal court decision was based on an astonishingly dishonest claim that federal courts do not have power to expand their own jurisdiction for Erwin Rosenberg's benefit, while
- the truth is that the prohibition is much broader - Article I gives the exclusive power to expand OR RESTRICT jurisdiction of federal courts only to U.S. Congress, not to federal courts, and
- federal courts happily restrict without any scruples their own jurisdiction for the benefit of governmental defendants in civil rights, RICO and other actions based on violation of Federal Constitution and of federal rules and regulations;
- Before the National Labor Review Board, and - quite recently
- Before the Florida State Treasury.
In his NLRB challenge, Attorney Rosenberg pointed out the following:
Attorney Rosenberg referenced in the complaint that both the U.S. Supreme Court and the U.S. Court of Appeals for the 11th Circuit recognized that bar associations are similar to labor unions and to employers in regulating conditions of employment of regulated attorneys - and, thus, wrongful revocation of an attorney's license is challengeable before the NLRB.
NLRB, as far as I know, did not decide attorney Rosenberg's complaint yet.
The Treasury Challenge
Smith v. US, 709 F. 3d 1114, 1116-1117 (Fed. Cir. 2013): "Assuming arguendo that Mr. Smith's licenses to practice law qualify as property for purposes of the Fifth Amendment, the government actions depriving Mr. Smith of his property included the disbarment orders by the Tenth Circuit, the Colorado federal district court , and the Supreme Court of Colorado, entered respectively on February 13, 1996, April 29, 1996 and October 14, 1999. . . . Therefore, Mr. Smith's taking claim . . . became 'complete and present' no later than each court's final disbarment order, and the period of limitations started to accuse on those dates."
- it cannot decide 5th Amendment claims on the merits as to violations of due process of law, but
- can decide 5th Amendment claims on the merits of takings clause violations.
- by saying that , and
- by saying that a wrongfully disbarred attorney never had a "cognizable property interest" in his law license.
So, Florida attorneys, be very afraid - your government just stated that you have no cognizable interest in the law license into which you invested a lifetime of time, money and effort.
- how the occupational licensee voted in elections, or
- whether the licensee's connected competitor wants to oust the licensee because he draws clients from the connected competitor; or
- because the occupational licensee criticized the government or any government official, or a friend, a relative, a colleague, anybody connected with the government, for any kind of wrongdoing.