"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.
Thursday, March 30, 2017
PA Supreme Court agreed to hear, in April of 2017, whether suspended or disbarred attorneys should be singled out into a special class for whom it will be UPL to do what people can do without any law license
On March 22, 2017, Supreme Court of the State of Pennsylvania denied reinstatement to civil rights attorney Andrew Ostrowski based on, among other things, his criticism of judges, the fact that he organized a "civil rights network", engaged in advocacy (not practice of law) for certain causes, the main cause being court reform and the fight against judicial corruption, because, having been deprived of opportunity to earn a living, attorney Ostrowski has debts that he cannot start to pay as he has no income, and based on claims that he practiced law during suspension period - even though his supposed "practice of law" was representing clients in front of the Pennsylvania State Unemployment Compensation Board, where representation, by state Statute, is not deemed the practice of law.
The legal community found nothing better than to laugh about it.
The self-righteous Unemployment Compensation Board, irate by being overruled by the Court of the Commonwealth because the court indicated that the UCB improperly deprived Andy Ostrowski's client of a "representative" (not attorney) of his choice despite clear law stating that representation before that board does not constitute the rule of law, the UCB now wants the Pennsylvania Supreme Court to single out suspended and disbarred attorneys into a "special class", and to prohibit to this class more than is prohibited to people who were never licensed to practice law.
Of course, where the statute is clear that representation in front of Unemployment Compensation Board is not practice of law, there is nothing to "mull over".
Rules of statutory construction are clear - a court does not have authority to "interpret", or, rather, change through interpretation, clear statutory text, it is the prerogative only of legislature.
What constitutes contempt of court, and unauthorized practice of law, are both criminal statutes and must also be clearly defined by the Legislature, not by courts on an "ad hoc" basis, specifically because two suspended civil rights attorneys dared not to just go broke, but to try to earn a living helping people by doing what was not the practice of law, by statute.
So, the corrupt Supreme Court of the State of Pennsylvania that refuses to discipline corrupt judges (including the Kids-for-Cash judge Marc Ciavarella, until the feds indicted him and had him convicted and sentenced to 28 years in prison), that allows judges who were former prosecutors on the same case to decide appeals, who allows judges who are subject of investigation to suspend attorney licenses of their own investigators, like it was with Judge Eakin to PA former AG Kathleen Kane - now refused reinstatement of yet another civil rights attorney, and is claiming that it is because he stood his ground in criticism of three judges, and because he provided legal services (which are not legal services in Pennsylvania by statutory law and the court's own precedent).
And, that court magnanimously "agreed to review" the question whether it will violate the statutory law of the State of Pennsylvania, after all (while the court had no right to do that, as it would constitute legislative amendment, for which the court has no authority), and single out suspended or disbarred attorneys into a class from which the public must be specifically protected - so, even certain ways to earn a living is allowed to everybody else (including to convicted felons, including to felons convicted for fraud or theft or any other crimes of "moral turpitude"), it would not be allowed to suspended or disbarred attorneys.
I raised this specific issue, of unequal treatment of suspended attorneys and never-licensed individuals in prohibitions for earning a living, in 2013 in the U.S. .District Court for the Northern District of New York, on behalf of my husband - the case name is Neroni v Zayas. The court rejected the equal protection challenge as baseless, claiming such discrimination does not exist.
In 2015, though, New York decided the case regarding attorney Joel Brandes, and recently the New York State Court of Appeals affirmed denial of reinstatement of a disbarred attorney because he allegedly engaged in the practice of law (paralegal services) while to anybody else in New York engaging in paralegal services is not the practice of law.
In January of 2017, the Appellate Division 3rd Judicial Department in New York eagerly jumped on the bandwagon, declaring, in response to a motion of suspended attorney Gaspar Castillo, that 21 activities (not all of them listed in the decision, but I have just sent in money for the records to obtain the full list) as practice of law if done by a suspended attorney, even though the same activities are not practice of law for unlicensed individuals.
South Carolina and many other states prohibit attorneys to work as paralegals or even legal secretaries or investigators, activities which are allowed to individuals who have no law licenses: "A lawyer who resigns for reasons of ethical misconduct or who is disbarred or suspended may not be employed by any member of the Bar as a "paralegal, investigator, or in any other capacity connected with the practice of law." Rule 34."
So, Pennsylvania is not unique in discriminating against suspended or disbarred attorneys and making sure they go broke and cannot maintain a living (by the way, being broke was also one of the reasons why attorney Ostrowski was denied reinstatement - because, being deprived of a right to earn a living, he, naturally, could not pay his debts).
Yet, one thing is very clear - the court system, the supposedly "honorable" court system where each and every judge took an oath of office to be faithful to the U.S. Constitution would rather break that oath, legislate from the bench as to the meaning of Unauthorized Practice of Law statute to be completely different depending on who the defendant is (which is a violation of due process, separation of powers principle, ex post facto laws and bill of attainder clause, to name a few), than allow a civil rights attorney who criticized judges back to practice law.
The system is not protecting the public from civil rights attorneys.
The system is protecting itself from criticism.