"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.

Monday, March 6, 2017

The welcome erosion of "mandatory state bars" and the future of the legal profession

It has been a tough couple of years for the "mandatory state bars" after the U.S. Supreme Court has ruled in 2015 in North Carolina Board of Dental Examiners v FTC that members of professional disciplinary boards run by "market players" (and that would be all attorney disciplinary boards in all states) are not entitled to the so-called "state immunity" (an illegal court-invented concept, a gift given by the U.S. Supreme Court to states if they "decide", for which they have no legal authority whatsoever, to violate federal antitrust laws).

While the whole idea is very interesting of
  • giving the big foxes (legal establishment) 
  • authority to "discipline" the small foxes (solo and small-firm attorneys nearly exclusively targeted for discipline), and
  • for both big and small foxes to be charged with the authority
  • to protect the rights of the chickens (the consumers)
  • without asking the chickens' opinions
  • whether they want their rights to be guarded by foxes, or
  • how well chickens think foxes are guarding their rights, 
and, it was very interesting for the U.S. Supreme Court to devise a "test" somehow allowing the states to "opt out" of the reach of clear federal antitrust laws (for which the U.S. Supreme Court, of course, does not have an authority - but when did such a trifle bother that court?), outside market forces started to drive changes into the happily fossilized structure of attorney regulation across the country.

On the one hand, none of the states complied so far with North Carolina Dental.

On the other hand, things did start happening to attorney regulation, and especially to regulation by the so-called "mandatory state bars" - where state bars, trade organizations for attorneys, with an interest to maximize its members' profit and minimize competition against its members, is given to regulate itself for the purposes of protecting its own clients - from themselves.

First, in California, after an audit of the California State Bar and the resulting scandal, the State Legislature refused to renew the State Bar's mandate to collect membership fees.  Of course, the California State Supreme Court overruled that, but that was a scare.

Second, in Arizona, after attorneys got pissed for licensing/"voluntary" membership fees being upped to much and filed a petition, the Arizona Legislature has introduced a new House Bill (that has now passed the Arizona House) to split mandatory (regulatory, disciplinary) functions of Arizona State Bar and the voluntary (trade association, advocacy) functions of the State Bar.

So, now the Arizona State Bar has one pocket and collecting there donations for both "advocacy" for its members before the government and prosecutions of its own members on behalf of the government.

If the bill passes, Arizona State Bar will have two pockets for two streams of cash - one for "disciplinary" purposes, a mandatory stream, and one for "advocacy" purposes, a "voluntary stream".

Of course, there emerges a problem of prosecutorial corruption which the new "separate the prosecutor's pockets" bill creates, where prosecutors are "voluntarily" "incentivized" by members of the State Bar - which in normal language is called a bribe.

One does not need a crystal ball to predict that those who "voluntarily" "contribute" the membership fees of the Arizona State bar, will not be prosecuted, while the "greedy ones" who would not grease the prosecutor's pockets by giving them "voluntarily" anything (and those, likely, will be solo attorneys and small firms), will be targeted for discipline even more than they are now.

Third, in the State of Washington the fee functions were not split by the Legislature into "mandatory" and "trade" functions - so the Washington State Bar keeps a single pocket and is "commingling" "prosecution" and "advocacy" funds from its involuntary members.

In the State of Washington, members of the mandatory State Bar, similarly, as in Arizona, were pissed with the upping of the licensing fee, but  - and voted the measure down by referendum under its bylaws.

Yet, the measure - same as the Legislative refusal to allow the State Bar to collect membership fees because of fraud, misuse and waste revealed by the audit - was overruled by the State Supreme Court.

And, there came to light a legislative bill, lobbied by attorneys, and not consumers for whose alleged protection attorney regulation is declared to exist.

In that bill, the State of Washington was decidedly confused as to who has authority to regulate the legal profession, and what is the nature of that authority.

In one short bill, the Legislature of the State of Washington, managed to offer THREE version of the source of power for regulation of the legal profession:

1) that the State of Washington has authority to regulate the legal profession, and delegated that authority to the State Supreme Court through the State Bar Act of 1933;

2) that the State Supreme Court of the State of Washington has an "inherent" authority to regulate, of all profession, only the legal profession (while regulation of other profession is handled by the executive b ranch); and

3) that the State Legislature and the State Supreme Court have joint authority to regulate the legal profession.

So, 2 branches - Legislative and Judicial - confuse each other and the public as to their right to exercise the function of the third branch, Executive, to regulate just one profession out of many - attorneys.

How the public, the consumers will benefit from all of this mess, is anybody's guess, but it is apparent that the legal profession is further "rearranging the chairs on Titanic's deck".

Not that this under-the-rug struggle will help in the large scheme of things.

According to some insiders in the artificial intelligence industry, the future of the legal profession does not lie in mandatory state bars.

Not even in deregulation.

It lies in robots - according to AI predictions, within short 10 years (maybe shorter, with the way technology develops now), the majority of lawyers will be replaced by robots.

Where will the "liberated" - from their jobs - hordes of lawyers will go then?

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