EVOLUTION OF JUDICIAL TYRANNY:

"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 cos
t.



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.



“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.

Wednesday, May 31, 2017

Irresponsible journalism by NBC: celebrating judicial misconduct as heroism

NBC has recently published an article about the concurring opinion of the 86-year-old federal appellate judge from the U.S. Court of Appeals for the 9th Circuit Stephen Reinhardt - where, after reporting that the judge has supposedly condemned "inhumanity" of a court decision (of the same court) supporting the government's decision to deport a farmer who has been in the country for 28 years.

The decision, according to NBC, clearly criticizes, by name, President Trump's administration's decision to deport the farmer.

And, of course, the focus of the article is the judge's condemnation of the decision and criticism of President Trump.

Only at the end of the article did NBC actually mention that judge Reinhardt "concurred" (agreed) with the court decision to AGREE with President Trump's administration to DEPORT the farmer and protested only as a "citizen".

Since Judge Reinhardt agreed with the rest of the court that the man should be deported, his opinion as a citizen not only does not matter, but it is judicial misconduct for a judge to even put his personal political opinion into his official judicial order.

Does Judge Reinhardt have a 1st Amendment right to express his opinions about the Trump administration and its immigration policy?

Sure, Judge Reinhardt, "as a citizen", has such a right.

But, "as a citizen", Judge Reinhardt is required to express his political opinions "as a citizen" in other forums - and not to use his judicial position to engage in personal political protests.

Because doing that is judicial misconduct subjecting Judge Reinhardt to impeachment.

But, to NBC, that conduct is somehow to be celebrated.

Because, had NBC started its article with the end phrase - that Judge Reinhardt actually AGREED to deport the man, while grumbling "as a citizen", it will be non-news.



Here is what Judge Reinhardt and Judge Nguyen said in their JOINT concurring opinion:





There were only TWO judges on the appellate panel where there usually are three judges, which is already an unusual and messy situation, INVITING the result that followed - because even if one of the judges would be for granting the emergency stay motion and the other is for denying it (if Reinhardt would be consistent in his opposition to deportation and voted against it), that would only have resulted in a "tie", and the decision of the lower court, denying the stay of deportation, would still be carried out.

But, Reinhardt did not do even that.

Instead, he AGREED to DENY the emergency stay of deportation - and only then grumbled, for publicity no less, about unfairness of HIS OWN decision.


Then go 5 pages of lamentations about the "good man" ripped out of the arms of his family and deported to Mexico after 28 years illegally spent within the U.S. (interspersed with a footnote regarding his DUI convictions, so the man WAS a jeopardy to the public).


Those who say he isn't should look in the eye of families of people who were killed by drunk drivers.

I cannot verify what Judge Reinhardt said that the lower court record does not support the idea that the deportation was based on the drunk driving record - because the federal court locked up information about that supposedly open case (without an indication that Dkt. 11, the memorandum of law by the government, was sealed).


Since it was not sealed, it should be open to the public, yet I get this message from Pacer.gov when I am trying to reach it:



So, Judge Reinhardt is engaged in just a little bit of playing with the public opinion here - where he asserts that something is incorrect while knowing that public access to court records to verify his words is - illegally - blocked.

Any opposition by the government - the memorandum of law and the letter of the Assistant U.S. Attorney General, are blocked from viewing on Pacer,




only the petition claiming "great abuse of discretion" by the U.S. Attorney's office is available.

It appears that, for whatever reason, age or not, Judge Reinhardt is losing his grip and is implying in his concurring opinion that, for some reason, even when a federal court does not have AUTHORITY (jurisdiction) to grant the relief requested, it still somehow has authority to "find" that the deportation that will lawfully follow will be unfair and unjust.

Well, if a court does not have AUTHORITY to render a decision, it must be clear to any 1st year law student that the court may not go any further to "find" anything after that.

Not so for Judge Reinhardt.

Yet, a judge is a public servant hired by taxpayers to apply the law, not to express his personal opinions as to that law "as a citizen".

"As a citizen" Judge Reinhardt can hit the street as a protestor, petition the government and talk to his legislative representative in Congress.

That's all he can do.

He has no right to impose his personal political opinions as official judicial decisions.

That's judicial misconduct, and Judge Reinhardt well knows it.

If NBC reporter Pete Williams who irresponsibly turned obvious judicial misconduct, "citizen" lamentation of a judge about deportation of a drunk driver (while agreeing with the deportation) into a cheap clickbait, does not know how to report on legal news, maybe, he should quit his job.

Of course, if NBC enjoys turning into yellow press - that's freedom of press. 

But, NBC took a stand recently on "fake news", didn't it?






Monday, May 29, 2017

NWIRP lawsuit highlights: how occupatinal licensing prohibits those with full stomachs from feeding the hungry and the literate from helping the illiterate

I am continuing to comment on the lawsuit of the so-called "airport lawyers" proclaimed by some media sources as heroes fighting the Trump administration - while their lawsuit has so far blocked a federal regulation that was established to fight fraud in immigration proceedings.

So far, I've published 4 blogs, commenting on:
This article, Part V, is about the actual interest of immigrants in "services" in immigration proceedings and how those interests are thwarted by self-interested groups - including the State of Washington officials, and their pet non-profits, of course, under the guise of helping them.

There are plenty of articles on the web - not related to services by attorneys or by lay representatives in administrative proceedings - showing that occupational regulations often are used as an excuse for completely inhumane practices, such as:


It is the same, if not worse, than destroying the food in front of the hungry - to prohibit the literate to help the illiterate (including immigrants) to fill out a form, or to prohibit explaining to the illiterate what is the dictionary meaning of a certain word in that law.


Washington State AG who supported the lawsuit of immigration lawyers in the U.S. District Court for the Western District of Washington through an amicus brief, claimed that somehow, by regulating federal practitioners in federal immigration courts through federal regulation, the federal authorities interfere with the State of Washington's regulation of the practice of law.

Yet, the same regulation has produced a huge "justice gap" where, according to State of Washington's recent official report a very large number of State of Washington residents cannot afford an attorney - but are prohibited by the State to use an unlicensed representative of their own choice.

Moreover, there are more conceptual glitches in Washington State AG's enforcement efforts about "notario fraud" that the "mainstream" media, including mainstream "legal" media would not cover.

Presumption of knowledge of the law

The concept of presumption of knowledge of the law is, of course, an ancient legal fiction.  Nobody can actually know all laws, even attorneys, even attorneys specializing in that same law.  There are reference books for that, so that a person can consult those laws.

Yet, the concept of the "presumption of knowledge of the law" is indispensable for law enforcement, because otherwise people would always raise as a defense that they did not know that the law they are charged with violating existed.

Nevertheless, if the government uses presumption of knowledge of the law BY ALL for law enforcement purposes, the government should be estopped from pretending that people who are not licensed to "practice law" are suddenly presumed not to know that same law - and that refers to both providers of "legal" services and to consumers choosing such providers.

First, if knowledge of all laws by all people is presumed, there can be no such thing as "notario fraud", or as "unauthorized practice of law", and regulation of legal services is completely non-sensical - because such regulation seeks to protect consumers of legal services on the presumption that they DO NOT know the law.

The government may not at the same time assert two diametrically opposite concepts - that the same providers, or the same consumers, are PRESUMED to know the law, and are presumed NOT to know the law.

But, being consistent with the concept of presumption of knowledge of the law requires deregulation of the legal profession - a lucrative market controlled by a "chosen few" who regulate themselves and sieve out those they do not like. 

Law schools are expensive, lawyers, naturally, put the cost of their education and licensing into their fees - and, as a result, people cannot afford an attorney, but are prohibited by the government to hire anybody who is not licensed.

Due Process Notice of the law

At the same time as people are presumed to know the law, Due Process Clause of the 14th Amendment of the U.S. Constitution requires notice of the law - of statutory law.

Knowledge of a court rule, or a court opinion/precedent, does not normally constitute knowledge of the "law".

But, in any event, people can only get constitutional notice of the law and form knowledge of the law if the law is understandable to a person of reasonable intelligence and education, let's say, a person with a high school diploma.

If laws are constitutional (give constitutionally acceptable notice), they do not need extra knowledge to navigate or explain to others - making attorney regulation unnecessary from that point, too.

Moreover, in the State of Washington, "practice of law" is defined (with certain exceptions) as this:


"Giving advice" can be simply reciting the law that is:

  1. enacted on behalf of the other person as a part of popular sovereign (we the People); and
  2. that the person receiving "advice" is PRESUMED to know.
Yet, nowhere in the Rule 24 does it prohibit to:

  • help out others in filling out forms, or
  • help out others in "navigating" administrative proceedings - without representation, which can be simply giving information, not advice, and without any representation.

And he is doing it at the same time as his paid informant against competition NWIRP is claiming to the court that if the court does not allow NWIRP to play fast and loose with their clients' right to representation in order to be able to stretch its budget across a larger number of people, even if at the sake of quality of representation of and outcomes for specific individuals, they will be left without ANY representation.

So, NWIRP first stamps out, for money, its own competitors who may be providing services for a low price in the field where there is an acute shortage of providers, and then claims that it cannot serve all potential clients, and thus disciplinary rules have to be relaxed for NWIRP's sake, so that it can stretch its budget for as many people as possible.

NWIRP also informs the court that immigrants suffer not only from lack of representation - where such lack of representation may be the direct result of BOTH federal AND state enforcement of practitioner/attorney regulation that CREATES the justice gap in immigration proceedings.  Immigrants suffer apparently from lack of translators, too.

Neither representatives, nor translators are provided to immigrants in such proceedings for free, and paid services are unaffordable to the majority of immigrants.

Yet, the voices of CONSUMERS - immigrants, especially those who are detained in the detention centers, are not heard.

Instead, non-profits such as NWIRP pretend that they fight for the interests of such immigrants - while NWIRP so far obtained a court ruling allowing them to NOT represent immigrants for whom they prepared pleadings, contrary to existing federal regulations.

Yet, had the actual consumers been asked - and they are not suing in NWIRP lawsuit, somehow, NWIRP did not come around to include any of its clients or potential clients as a plaintiff in their lawsuit, while claiming nevertheless that NWIRP's interests are the same as interests of NWIRP's potential clients' - they would likely give the following list of what they need in such proceedings:

  1. representation by a representative of THEIR CHOICE - approved or not approved by the government;  it is actually counter-productive and conflict-ridden to have to choose your own person of trust, your own representative AGAINST the federal government in immigration proceedings, from a list of people approved BY that same government;
  2. forms that are understandable for a person of reasonable intelligence, and which are easy to fill out;
  3. forms in their own language - it does not cost much to translate those forms into the languages that at least the majority of immigrants speak, and have them available in a pdf-fillable format;
  4. provide to immigrants subject to immigration proceedings, whether they are detained by the government or not, Internet access to pdf-fillable forms in their own language;
  5. introduce e-filing for all applicants, and make it easy, using pdf-fillable forms;
  6. have automatic translation service of forms filed in languages other than English, for the court - the quality of computer translation is enough to adequately translate what people put as answers to form questions.  Form questions do not need translation, as they must be the same in all languages;
  7. translation services MUST be available for free in immigration proceedings - otherwise it is a basic human rights violation to adjudicate a case when there is no two-way understanding between the court and the respondent as to what the respondent is saying and what the court is saying, respectively.
None of those needs were litigated by NWIRP, and you know why?

Asserting those needs on behalf of their clients will spell out the end of their own lucrative life, their own fundraising, rubbing shoulders with those in power, lavishing self-praise and awards upon themselves.

If representation in court and in administrative proceedings is allowed for anybody just on the basis of trust, a power of attorney, how many attorneys with a pulse, a license and an empty head will no longer have business?

As to "notario fraud", fraud of any kind is prosecutable in court, there is such a cause of action - and that applies to all providers, whether attorneys or not.  If a provider took the consumer's money, but did not provide services - a lawsuit can be filed, and that protection is enough.

There is no need for further regulation - and especially when it creates, and widens the justice gap.

What the State of Washington AG is describing, with glee, as prosecution of "notario fraud", is a neighbor dropping in to another neighbor to translate for him and help fill out a form him, explaining the dictionary meaning of words used - a help from a LITERATE person (no more knowledge than a simple literacy must be required to read and understand the law) to an ILLITERATE person.

What the State of Washington, and other state governments (and the federal government) are doing in "regulating" attorneys and, in administrative proceedings, practitioners, is:

  • depriving consumers of their own choice of representatives;
  • reducing consumers' choice in proceedings litigated by the government to providers approved by that same government - an irreconcilable conflict of interest for the government; and
  • making such services unaffordable, thus creating and widening the justice gap.

Prohibiting the literate from helping the illiterate where that help can make a real difference, simply because that literate person is not approved by the government, is as cruel as the government destroying food in front of the hungry and prohibiting people to feed the hungry.














Issues in NWIRP's lawsuit: what is the state interest in federal regulation of practice in front of a federal administrative board?

This is my fourth blog regarding the lawsuit by non-profit NWIRP portrayed as a heroic deeds in the press.

I covered
  • conflicts of interest in court representation of the lawsuit here;
  • conflicts of interest in composition of the Board of Directors and staff of NWIRP here;
  • conflicts of interest regarding assertion that one-time ghost-writing for clients somehow serves clients' best interests here.
Now I am raising another issue - what is the "interest" of the State of Washington to interfere into this lawsuit as a "friend of the court" (amicus)?

First of all, I already wrote that two current members of the Board of Directors of NWIRP, Teresa Mosqueda and Regina Garcia, are employees of the State of Washington, and, as to Garcia, of the Washington State Bar (the regulator), which creates an impression that NWIRP is a part of the government of the State of Washington.

Moreover, that is what the Washington State Attorney General was directly asserting in his amicus brief, claiming that a staff attorney in NWIRP, paid by grant money from Washington State Attorney General, is actually conducting functions of a criminal investigator or prosecutor for the Washington State AG.




So, NWIRP's "partnership" with its own regulator (Washington State AG regulates NWIRP as a non-profit) is snitching on its own competition - because the AG considers as "notario fraud" representation for money (not necessarily bad representation) without being admitted in front of immigration courts - which is the same as NWIRP's own "legal advocates" .

Yet, the Washington State AG prefers not to prosecute NWIRP's "legal advocates" for "notario fraud", but instead gives NWIRP money for snitching - through "cy pres grants" no less, while installing into NWIRP an attorney to discharge a function of a de facto Washington State Assistant Attorney General, which is, of course, an illegal act of sub-delegation of the Attorney General's power to a private non-profit, in exchange for
  • squashing the non-profit's competition;
  • non-prosecution of the non-profit for their own "notario fraud" acts;
  • giving the non-profit money in exchange for their snitching;
  • giving the non-profit the status of a de facto Assistant Attorney General, by placing a paid attorney on its staff with the functions of the Assistant Attorney General, and
  • even referring clients to that non-profit.


Considering, once again, that two of the State of Washington's high-ranking employees are on the Board of Directors of the non-profit - regulated by the State of Washington - the relationship is more than murky.

It is even murkier that, while asserting the interests of the State of Washington in this litigation, the State of Washington did not attempt to intervene as a party.

But, the elephant-in-the-room question, and especially for the State of Washington is - when the challenged rule in litigation is a FEDERAL rule regulating practitioners in front of a FEDERAL agency, what the heck may be the State of Washington's "state interest" in such regulation?

Isn't it a crystal clear case of separation of what state government does and what federal government does?

Isn't the State Attorney General of the State of Washington trying to butt into what the state of Washington has absolutely no right to regulate - appearances in representative capacity in front of a federal agency?

And isn't the State Attorney General of the State of Washington, in order to cater for its pet non-profit, wasting taxpayer money (of state and federal taxpayers) by supporting a frivolous lawsuit against the federal government in their official capacities, thus suing all of us, American taxpayers, to block the federal government from providing a BENEFIT to the immigrants in immigration proceedings?

The rule that the State AG is opposing (by supporting the NWIRP lawsuit) is a federal rule created to do the same thing as the State AG paid NWIRP $125,000 for doing - fighting the "notario fraud".  How does all of this make any sense - other than that the name of the Defendant is Jeff Sessions, and thus any frivolous lawsuit against him must be allowed to the pro-Clinton lawyers as a matter of right?

Let's ask the question again - what is the State of Washington's interest in regulating representation in federal agencies?

The State AG has the audacity in claiming, in his amicus brief, that the FEDERAL rule regulating appearances of representatives in FEDERAL immigration proceedings in front of a FEDERAL agency allegedly violates the 10th Amendment right of the State of Washington to regulate the practice of law IN THE STATE OF WASHINGTON.

Apparently, such a claim can be made only to an extremely "sympathetic" judge - because any fair judge doing his job would have tossed such a claim, with sanctions.

First of all, the federal agency allows to practice in the immigration courts the following individuals:

  1. accredited attorneys in good standing;
  2. accredited non-profits and their employees who are separately accredited with the courts (which NWIRP's multiple employees are not);
  3. law students;
  4. parents and/or legal guardians of children who are subject to immigration proceedings;
  5. "reputable persons", by permission of immigration courts.

Moreover, as to the last category, the "reputable persons", federal courts do not consider as "reputable" people who represent respondents in immigration proceedings for compensation (even a very low compensation), and who do it frequently.

That, of course, makes no sense at all - because doing business for money, per se, does not make anybody a disreputable person;  and, having experience in doing a certain thing, like representation in an immigration proceeding, does not make a person automatically a "disreputable person".

Well, in federal immigration courts, it does.

So, the rule existing in federal court may be challenged - BY CONSUMERS - as having nothing to do with the declared purpose of regulation, protection of CONSUMERS from

  1. dishonest and/or
  2. incompetent
practitioners.

Charging money for services, or having experience in your business, does not make a person automatically incompetent and/or dishonest - that's clear as day.

Moreover, if the situation with representation in immigration proceedings is as dire as NWIRP asserts in its pleadings, so that NWIRP takes upon itself the role of Jesus Christ trying to feed 5,000 people with 5 breads (provide one-ghost-motion-per-client "services" to spread their 6 mln dollar per year budget upon a maximum number of claimed clients), neither the federal, not the state government have ANY right to regulate that representation AT ALL, according to the U.S. Supreme Court precedent that is on the books FOR 48 YEARS:

"In the absence of some provision by the State of Tennessee for a reasonable alternative to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners".

When the "reasonable alternative" is throwing in a ghost-written motion and then leaving the immigrant without a legal representative or a translator to fight his case in court on his own, it is obviously not a "reasonable" alternative.

Yet, the State of Washington and the federal government are fighting over the right to regulate where they obviously may not do so, because their regulation CREATED a crisis of the lack of representation, and fighting "notario fraud" is (1) counter-productive, as it deprives people of ANY representation, simply because they cannot afford an attorney or were not lucky enough to get full free representation from a non-profit; and (2) deprives consumers of their choice of representative, possibly, of their only choice.

So, the fight between the state and federal governments on the issue of who gets to regulate what NEITHER of them have a constitutional right to regulate is clearly frivolous.

But then, there are more conceptual inconsistencies than disobedience of the U.S. Supreme Court precedent of 48 years.

I will just list those inconsistencies.

  1. States may not interfere with how federal government regulates practice in federal agencies.  So, the State of Washington has NO interest whatsoever in how federal immigration courts regulate their representatives - and claiming that such regulation affects "residents" of Washington State (illegal aliens) - does not create any state interest;  creating a statute, as the State of Washington did with lobbying of its AG and NWIRP, on the subject of fighting "notario fraud" in FEDERAL proceedings does not create such a "state" interest either, as federal law pre-empts inconsistent state law;
  2. practice in front of federal agencies where lay representation is allowed is not "the practice of law";
  3. what constitutes "the practice of law" is not clearly defined in Washington State by statute; the ad hoc court rule that may change, in arrears, the definition of the practice of law, does not give constitutional notice of what is being regulated, so the ENTIRE regulatory scheme in the State of Washington is unconstitutional;
  4. the AG is challenging the federal disciplinary regulation for practitioners that is meant to fight "notario fraud" - which is what AG is claiming he is doing, too - and the lawsuit so far succeeded to stop this federal regulation, and thus lift the supposed protection against "notario fraud", which doesn't make any sense;
  5. how did the State AG end up supporting plaintiffs in a civil rights lawsuit challenging an attorney/practitioner disciplinary rule, when the same State AG is habitually representing DEFENDANT Bar of the State of Washington in challenges of attorney disciplinary rules by disciplined attorneys;
  6. the AG is challenging only ONE federal disciplinary rule for practitioners in front of immigration courts, while not arguing that the ENTIRE federal regulation of practitioners in immigration courts is the domain of the State of Washington, and such a selective challenge is illustrative in view of AG's connections with two Board Directors of NWIRP and AG's financing of NWIRP and mutual efforts to help each other in and out of court.
Yet, there is one thing in common
the presumption that a non-lawyer advice and HELP to consumers FOR COMPENSATION, no matter the quality, must be outlawed.

That is part of the General Rule 24, that is specifically, by its language, prohibited by the state statute, and that is prominent in the "reputable person" regulation in immigration courts:

And look at the "efforts" of Washington State AG, "partner" of NWIRP, in fighting "notario fraud":


Note that the State Attorney General sued the supposed "offenders" not in federal court, but in state court, for unauthorized practice of law - while there is no STATUTE defining what the practice of law is, and while violating a COURT RULE should not be able to create a "state cause of action" to sue in court for its violation.

Also note that the State Attorney General is claiming that unauthorized practitioners' clients are "victims" of "notario fraud", without regard to the quality of provided services.

And, please, note that the State Attorney General (political supporter of NWIRP's Director Teresa Mosqueda) and, "coincidentally", a sponsor of a state statute to fight "unauthorized practice" of "immigration law" (which must be enforceable by the federal agency and not the states), claims in his own press-release that what he is prosecuting is "peddl[ing] assistance completing immigration forms and navigating immigration processes that legally can only be provided by qualified attorneys and accredited representatives".




Of course, the Washington State AG does not explain two interesting things:


Bill Schwarz, NWRIP's "legal advocate", a non-attorney who is not an accredited representative (those who are, are listed by NWIRP as such) "works to provide direct legal services to individuals detained at the Northwest Detention Center".  The State AG does not seek to prosecute Bill Schwarz for unauthorized practice of law (UPL), or its employers for aiding and abetting UPL, on the opposite, the State AG empowers such behavior by providing NWIRP a $125,000 grant.

Jenna Golan-Strieb is another NWIRP's unaccredited "legal advocate" who has a degree in Spanish Language, Literature and Culture, Latin American Studies, and Global Development Studies - but not a law degree.  Ms. Golan-Strieb is "working to provide pro se legal orientation assistance to immigrants detained at the NWDC" - the same "services" which the State AG prosecutes against other people as "notario fraud".

Maria Cordero-Miranda, a yet another NWIRP's unaccredited "legal advocate" with a degree in Political Science and Spanish, and in Urban Studies (but not in law), and a native of Nicaragua, reportedly "enjoys helping others navigate the immigration system by providing the tools and information necessary to do so".  That is exactly what the State AG prosecutes as "notario fraud" - for "peddl[ing] assistance completing immigration forms and navigating immigration processes that legally can only be provided by qualified attorneys and accredited representatives".  Maria Cordero-Miranda who "enjoys" helping others "navigate" immigration processes is somehow not the focus of State AG's prosecution - as are other people.  Nor is NWIRP, Cordero-Miranda's employer the target of State AG's investigation and prosecution for aiding and abetting "notario fraud".  Instead, State AG pays NWIRP to report others doing the same as its non-attorney employees are doing, for prosecution.

State of Washington AG then says that "[i]mmigration services fraud places the legal status of unsuspecting immigrant consumers in jeopardy, risking their ability to live and work in the U.S. - and takes their hard-earned money in exchange for dubious services".

So, the Washington State AG is claiming that ANY representation by a person who is not a "qualified attorney" or an "accredited representative", including help in "completing immigration forms" and in "navigating immigration processes" constitutes a "dubious service" that must be prosecuted - to protect "consumers" no less.

Yet, NWIRP's "legal advocates" somehow do not fall into this definition, or rather, Washington State AG does not enforce legislation against his friends and paid informants.


And, there are also parents who are allowed to represent their children (note that the federal regulation does not say "minor children", simply "children").  Parents do not become competent legal representatives simply because they are parents, and children, as consumers of supposedly legal services, should not be regarded as second-rate consumers with less rights than other people.

Parents are also not "accredited representatives", so the AG's claims are just a little bit self-serving, especially considering that the statute that the AG has "sponsored" only fights advice by "notarios" in exchange for compensation - which looks very much like efforts to stamp out competition to AG's own law license, and to law licenses of his friends, and officers and staff members of pet non-profits.

But an even bigger "elephant-in-the-room" issue emerges here:

WHY,
  • while fighting enforcement of federal immigration laws through a lawsuit against President Trump's executive order;
  • while fighting enforcement of federal immigration laws by fighting prohibition on discretionary disbursements of federal funds against "sanctuary cities" because they disobey federal immigration laws, and REFUSING to enforce federal immigration laws;
  •  the State of Washington suddenly claimed an interest in ENFORCING federal immigration law in fighting "notario fraud" - in an interesting way, while fighting in court, a disciplinary rule that was devised to PREVENT that same "notario fraud" in immigration proceedings?

So, the State of Washington now has a "state interest" in ENFORCING some portions of immigration laws - against the federal government - while fighting against that same federal government's efforts to COMPELL the State of Washington and its municipalities to abide by those same federal immigration laws?

Doesn't make any sense - other than, when you need to use your power to prevent the money trickle towards your friends' businesses from drying up - the end justifies the means.

And let those consumers who are left without any immigration services as a result take care of themselves.

They are only numbers in head counts for the Washington State AG and non-profits in their fundraising campaigns, after all.





Issues in NWIRP's lawsuit against Jeff Sessions: is attorney ghost-writing for pro se parties and partial representation an attorney's constitutional right?

This is my third blog about NWIRP's lawsuit against Jeff Sessions portrayed in some media as a heroic deed.

I have written about conflicts of interest in connection with this lawsuit in representation of NWIRP in the U.S. District Court for the Western District of Washington here, and about conflicts of interest in NWIRP's Board of Directors and staff here.

The media, while hailing as good anything that is against Trump or officers in his administration, omitted to mention that the rule that NWIRP's lawsuit is attacking was introduced and enforced by the Obama administration in 2008.

What is even more bizarre is that NWIRP is asserting lawyers "constitutional right" to
  • not own up to their work (ghost-write pleadings),
  • not appear in proceedings in which they are advising clients, and
  • to represent clients only partially.
In its pleadings, NWIRP has written to the court that in represented cases clients fare better (4 to 5 times better, based on the outcomes) than unrepresented clients.

Great.

Yet, NWIRP is asserting their "constitutional right" to throw in for unsophisticated immigrant clients, often for those who do not know English, a sophisticated pleading (a petition or a motion), as a ghost-writer for a pro se respondent in an immigration proceedings, and then leave that same client to litigate what they threw in, on his own.

And, NWIRP asserts that they are actually providing their clients a benefit.

Let us model this on a hypothetical.

Imagine that a lawyer has a budget of over 6 MILLION DOLLARS - that's what NWIRP had in 2014 (the latest publicly available report).




Imagine that a lawyer is reviewing a case of ONE client - because a lawyer must have an undivided loyalty to every single client.

Is a budget of 6 million dollars enough to represent, from first to last day of immigration proceedings, ONE client?

Undoubtedly so.

Do NWIRP attorneys have any right (much less, a constitutional right), to instead emulate Jesus Christ and try to feed 5 000 men with 5 loaves of bread?

Because that's what NWIRP are trying to assert as their own right - and somehow as the right of their clients and potential clients.

They are claiming to the court in their lawsuit that:

  1. they do not have funds (6 million dollars per year is not enough) to represent people from first to last day of immigration court proceedings, and
  2. they have a constitutional right to provide consultations or to ghost-write pleadings for pro se clients, in violation of a disciplinary rule that was introduced by the Obama administration in 2008, because this way they will help more people.

Of course, if they just represent 100 clients from first to last day, and win all of these 100 cases, that will not be as impressive as saying that they "helped" by (ghost or partial) representation 10,000 people, as NWIRP is asserting in their lawsuit.

Now imagine an assigned attorney telling his client - I will only throw in one motion, and then you are on your own.

No court will allow that.

The court where they are suing will not allow NWIRP's own attorneys to get out of the case without the court's permission, and NWIRP knows that.

Immigration courts will not allow that either, there is nothing new about it.

In court proceedings in the blessed State of Washington (whose AG supported the NWIRP lawsuit through an amicus brief) withdrawal of an attorney over objection of a single party is prohibited without a court order - so, if a client objects, an attorney who is in the case, cannot withdraw without court's permission.

Is it constitutional?

Probably, not, but the constitutional right violated here is not the attorney's 1st Amendment rights, for sure.

It is the attorney's 13th Amendment right not to be ordered by the government into an unpaid servitude - and the 13th Amendment violation was, certainly, NOT asserted by NWIRP, because asserting that would clearly highlight that the attorney's "right" to ghost-write conflicts with the client's right for representation throughout the proceedings.

And that's what NWIRP is fighting - they are fighting AGAINST their clients' right to have NWIRP represent them once they step into an immigration case, as required by disciplinary rules of that court, until the successful or bitter end.

By the way, NWIRP practically lied to the court by manipulating the court with the statistics of outcomes of represented vs unrepresented parties in immigration proceedings, because those statistics were inapplicable to what NWIRP is doing.

NWIRP did not provide ANY statistics as to outcomes of its clients for whom they provided one consultation, ghost-wrote (possibly, by non-attorney illegal "advocates") one petition or one motion, and then let those clients hang out to dry on their own.

Since NWIRP asserts in the lawsuit their "constitutional right" NOT to represent their clients from the first to the last day of the immigration proceedings, statistics that NWIRP used for court comparing outcomes in represented vs unrepresented proceedings, is inapplicable - and was fraudulent to use in court (my personal opinion) in order to impress the court.

Why did NWIRP even file this obviously frivolous lawsuit?

The answer is clear - enforcement of the 2008 rule hurts their fundraising efforts.

As I mentioned above, it gives NWIRP, and their lawyers, more glory and more grounds for self-promotion to claim that they "helped" 10,000 people (without giving the statistics of outcomes for those 10,000 people and while claiming that identities of those 10,000 are secret - so there is no way to verify their claims that they actually helped those 10,000 people) than to openly, and following the immigration court rules, help, from the first to the last day of immigration proceedings, a much smaller number of people, but to actually help them by representation, not by bits-and-pieces consultations, ghost-writing and then USING those unnamed people in their further fundraising campaigns.

Once again, I would like to stress that NOWHERE in attorney conduct rules, federal or state, anywhere in the U.S., does a rule exist allowing an attorney for a non-profit organization to consider partial representation simply because by way of partial representation he will have more "heads" of clients to claim for purposes of reports and future fundraising - even if such partial representation hurts outcomes in the specific cases for specific clients, which it undoubtedly does, as NWIRP's own statistics indicates - unrepresented clients fare at least 4 times worse than represented clients.

So, when beating up on Trump and Sessions, no matter what they do, the press should at least look a little bit into the matter and figure out - maybe the truth is not on the side of those "revolutionaries" who are trying to filibuster Trump and Sessions not because they are doing anything wrong, but because they are not Hillary Clinton?

I will continue my analysis of the NWIRP's lawsuit.

Stay tuned.





Immigration lawyers' lawsuit: heroics or a self-serving mess? The Board of Directors and conflicts of interest.

In my previous blog, I pointed out that the lawsuit of a Washington State non-profit #NWIRP may be not as heroic as it is presented in the pro-Clinton and anti-Trump (right or wrong) press, especially that there was no legal basis for filing and prosecuting that lawsuit, and especially that the temporary restraining order was granted without an explanation or legal grounds by a court where at least two attorneys for NWIRP in the lawsuit were the court's interns or law clerks.

I have read the materials from the lawsuit, and am continuing to publish and analyze them.

Apparently, there were more smoke and mirrors, more conflicts of interest and more self-serving hypocrisy and conceptual mess in this lawsuit.

First of all, the players in the NWIRP lawsuit are definitely no heroes, and in this blog I will point out potential conflicts of interest of board members, officers and employees of NWIRP.

Here is the composition of the NWIRP's Board of Directors, obtained by me from their 2014 tax report (the latest report available), published on guidestar.org, a comprehensive website providing information about the U.S. non-profits.



Here is the composition of the Board of Directors of the plaintiff, NWIRP, as of today, from their own website, and a comparative table of dynamics of the board members.
The current composition of the board of directors:




2014 Board
2017 Board
Background
Potential conflicts of interest
1.
#MonicaBatraKashyap, President

Stayed on Board
Professor of Seattle School of Law in charge of externship with the presiding court

Personal connections with the court, potential for ex parte communications, for influence upon the court through the use of former externs and law clerks (two attorneys representing NWIRP in the lawsuit are former law clerks/externs of the court, likely placed by Kashyap);

2.
#HilaryHan, Vice-President

Left the Board

The break NWIRP obtained in the lawsuit for its own lawyers and lawyers “associated” with it benefits Han’s private business

3.
Marie Higuera, Director

Left the Board
The break NWIRP obtained in the lawsuit for its own lawyers and lawyers “associated” with it benefits Higuera’s private business

4.
Kristen Kussman, Secretary

Stayed on the Board
Lawyer, powerful lobbyist


5.
Omar Riojas, Director

Became the President



6.
Julie Frye, Treasurer

Stayed the Treasurer


7.
Huy Nyugen, Director

Left the Board


8.
Teresa Mosqueda, Director

Stayed on Board
Political and Strategic Campaign Director, Washington State Labor Council

A conflict of interest, as Teresa Mosqueda is a state employee while the State AG, without participation in the lawsuit as a party, but after endorsing Mosqueda in her political run for the Council of Seattle, supported her non-profit in the lawsuit asserting “state statutory interest” in the lawsuit, but in reality making sure that the non-profit will not be sanctioned and will not lose fundraising capabilities

9.
Steven Severin, Director

Stayed on Board
NY attorney, NWIRP says “retired”, but the registration in NY does not show retirement

May financially benefit from practicing in immigration courts
10.
Jorge L. Baron, Executive Director

Left the Board


11.
Francoise Maxie, Finance Director

Left the Board


12.

Luanda Arai, Board member
Immigrant, grant manager for Washington Youth & Families Fund at Building Changes, not a lawyer


13.

Richa Arora, Board member
Immigrant, former client of NWIRP, not a lawyer


14.

Susi Collins
Immigrant, not a lawyer


15.

Renata Garcia
Immigrant, lawyer, manager of mandatory CLE program with mandatory Washington State Bar, part of the state government (NWIRP version), or “staff liaison” of the Washington State MCLE program (the Bar Association’s version)


Washington State did not participate in the lawsuit as a party, but Washington State Attorney General asserted “state statutory interest” in support of the lawsuit through an amicus brief, and asserted that NWIRP is a partner of Attorney General’s office in fighting “notario fraud” (its own competition), to the point that:
1)      NWIRP snitches on “notaries” to AG;
2)      AG, in return, refers clients to NWIRP;
3)      AG gave NWIRP a $125,000 grant to help AG fight “notario fraud” (competition);
4)      AG does not prosecute NWIRP for participating in unregistered representation of immigration clients, including through non-attorney employees

16.

Wamaitha Kiarie
Immigrant, former NWIRP client, not a lawyer




Sarah Litt
NY lawyer, formerly of Courtroom TV Network, NY registration site does not show retirement

May financially benefit in practicing in immigration courts



NWIRP has conflicts of interest in this lawsuit not only through its Board members, but also through its staff where there are a lot of non-attorney "advocates" and "legal assistants" providing legal services to immigrants - without any indication that those "advocates" and "assistants" are approved by the immigration Review Board and immigration courts to practice.

So, NWIRP at the same time "fights" "notario fraud" - consisting sometimes only in giving people advice regarding federal immigration proceedings for money (without regard whether the advice was correct or not, good or bad) - while allowing its personnel to do the very same thing, engage in notario fraud, employing, through its own admission, at least 11 "legal advocates" who are not registered representatives in immigration courts or Review Board:














By the way, practice by paralegals is not allowed in immigration courts.

Now, NWIRP is suing Trump's Attorney General and somehow asserts that they are violating NWIRP's "constitutional rights", while the rule that they are asking the court to lift (and that the court already stayed nationwide without an explanation or legal grounds, because the court's former law clerks/interns, now representing NWIRP, asked for it) existed since 2008, and was introduced by the Obama administration.

In other words, Trump's AG is being sued for enforcing Obama's rule.

And, the rule is a requirement for a representative in an immigration court:


  1. to be registered with the court (for an attorney) and approved for representation (for a non-attorney);
  2. to announce participation in a certain case and thus own up to the attorney's or representative's work;
  3. to stay in the case until the court relieves the attorney or representative.

The rule is actually THE SAME rule as exists in federal court, so Judge Richard Jones, by imposing a stay upon such a rule in immigration courts, and by doing it nationwide, shot federal courts, including his own, in their proverbial feet - because in ALL federal court proceedings and attorney, once stepped into the case, may not get out of the case without the court's permission.

NWIRP, through a sympathetic judge from a court that formerly employed some of their attorneys, changed that rule for themselves now.

Did it help consumers?

Did it protect NWIRP's current and potential clients?

Did it help clarify what constitutes the practice of law?

Did it help clarify who regulates the practice of law, and the practice in immigration courts and why?

I will write about that in one of my next blogs.

Stay tuned.