Occupational licensing and the government as a con artist, or the myth of professional regulation as deterrent of self-serving professional misconduct

My common topic on this blog is occupational regulation (including attorney regulation) and conceptual inconsistencies in such regulation by the government.

Regulation of all licensed/regulated professions is declared to be done for purposes of consumer protection.

Yet, various prohibitions on regulation very often do little to protect consumers, if not outright hurt consumers, by restricting competition while providing no quality protection.

One of such prohibitions is the so-called prohibition on "mixed practice".

For example, a lawyer cannot have a joint firm with an accountant - even if it is a tax lawyer, and even if an accountant may know certain aspect of, obviously, accounting, better than a lawyer, and a consumer may benefit from such a joint practice - from its versatility and, likely, lower prices.

Also, in many states statutory laws are introduced (obviously lobbied by the already-entrenched professional elites) to prohibit "mixed services" in the medical profession, too.

One of such a prohibition has recently resulted in a multimillion verdict against a New York attorney whose offense was that he taught chiropractors how to open businesses with doctors employed or on the board of directors, while the sole ownership of the firm belonged to a chiropractor, not a doctor.

Of course, what difference would it make to a consumer other than good?

A consumer coming to a chiropractor who also employs a doctor, wins from versatility of practice and lower prices.

Not so - says the New Jersey legislature (lobbied by doctors, obviously) and now the New Jersey Supreme Court, which has a self-serving interest to uphold such a scheme as a legislator of regulation for attorneys, and of similar "mixed service" prohibitions for attorneys.

The legislative purpose of the prohibition, as the court explains, is that a chiropractor, as the sole owner and employer of a doctor, cannot be allowed to influence medical decisions - that would constitute insurance fraud per se.

The decision of the New Jersey Supreme Court, which came out after long years of litigation on May 4, 2017, may very well be a retaliative knee-jerk reaction of the court against a New York attorney, simply because he was a New York attorney, for the simple reason that New York declared its right to discriminate against New Jersey attorneys (who may live closer to Manhattan than the majority of New York-residing attorneys), and the U.S. Supreme Court refused to hear a lawsuit challenging constitutionality of that discrimination.  On April 17, 2017, by the way, 17 days before the New Jersey Supreme Court retaliated against a New York State attorney.

This exchange of slaps, obviously, did not help consumers.

New York consumers of legal services, where the justice gap is a re-iterating lamentation by the NYS Court system, are only hurt by discriminatory laws against out-of-state attorneys, reducing the number of providers.

Similarly, New Jersey consumers of chiropractor and medical services are only hurt when chiropractors are prohibited to hire willing doctors to work in their offices.

Moreover, the New Jersey Supreme Court missed the obvious 1st Amendment implications where an attorney, on a lawsuit of an insurance company no less, is ordered to pay for the alleged fraudulent content of lectures about business structure aimed to provide better, cheaper and more versatile services by willing licensed providers to willing competent consumers of such services.

When this whole country is in uproar about who was elected as President and what is going to happen with healthcare, this case, brought by an insurance company, somehow fell through the cracks and is overlooked, yet, it has a drastic impact on the end prices and quality and scope of services for consumers - and, as to prices, both paid by insurance and out-of-pocket.

Yet, the whole prosecution, from the standpoint of the declared purpose of occupational regulation by the government in order to protect consumers, makes absolutely no sense, and, more, exposes the sham of occupational licensing as lobbying privileges for privileged professions.

First of all, nowhere in the court decision is there any proof that such schemes hurt consumers and lead to providing substandard services.

The whole statutory scheme of insurance fraud through "mixed services", or "doctor in a box", as it is often called, are based on a presumption - that a chiropractor, a person with a "lesser license" and training than a doctor, will improperly influence a doctor in his employ.

The lawsuit involves THREE licensed occupations:

1. lawyers;
2. chiropractors; and
3. medical doctors.

All of these professions are regulated by the government in order to protect consumers.

All of these professions have their own ethical codes and disciplinary procedures.

All of ethical codes prohibit unethical conduct.

All of ethical codes prohibit to act outside of the licensed professional's competency.

Thus, the PRESUMPTION that a licensed chiropractor will necessarily:

1. act outside of his competence in influencing medical decisions of a doctor, and
2. will actually influence a licensed medical doctor who will violate his own ethical rules in order to cave to a chiropractor who is his employer -

defies the whole need for licensing regulations.

If individual licensed doctors are presumed (by the insurance fraud statute) to readily cave to influence by AN employer (no matter, a chiropractor or not), what difference does it make, what license, if any, that employer has?

Is it better that an individual medical doctor is FINANCIALLY influenced in his MEDICAL decisions by another doctor?  By a whole bunch of medical doctor - a hospital board?

Because, if the law PRESUMES that doctors will be easily sways by those who pay them in their medical decisions, in violation of their licenses, we do not need to license doctors, because such licensing is useless and only raise the cost of medical services, which is already sky-high and unaffordable to many Americans.

But, the law does so presume.

Same as it presumes that a lawyer may not engage in a "mixed practice" with an accountant, for example, for the same reason that it will be then presumed that the lawyer will violate his ethical rules and provide services not in accordance with his INDIVIDUAL licensing obligations, but looking only at the bottom line. 

And so will do the certified accountant - who is also a member of a profession regulated by the government, and is also governed by his own individual ethical rules.

As it often happens, the desire of the government to deliver a quick slap to a "sister state" - or for any other political reason - reveals more than the government wanted to.

New survival tricks of law schools expose the sham of attorney regulation - a new suggestion, from a law school dean, to defy ABA authority to certify law schools: the end of attorney licensing is coming from money-hungry law schools?

I wrote today a blog about a new trick a law school professor from Charlotte Law School that faces yanking of its license in August unless it proves its financial stability to teach its remaining 100 students to graduation - to allow law schools to be owned, straight out owned, by law firms.

Graduation from ABA-approved law schools is, in all states of the U.S., a pre-requisite to obtaining a license to practice law.

Licensing the practice of law is declared to be in order to protect consumers, and all rules pertaining to licensing, including educational requirements of lawyers, should be governed by that declared goal.

In other words, mandated education of lawyers must be necessary to protect consumers.

Yet, a law professor openly claimed, apparently, that he deliberately DOES NOT teach about deficiencies of regulation of the legal profession, in order, allegedly, for law students not to use such deficiencies as loopholes, and not to act unethically.  Which says a lot about law ethics professors' trust in the integrity of the legal profession.  Imagine - you, as a member of the public, should not be taught, as a matter of public policy, about deficiencies in criminal law (which you are presumed to know anyway, same as law students are presumed to know attorney regulatory law anyway, under the principle that ignorance of the law is not a defense for breaking it), because if you know of such deficiencies, you will immediately go out and start committing crimes?

And, a law professor openly claimed, apparently, that regulation of the practice of law (by judges, which amounts, in the professor's view, to "self-regulation" - implying that judges are treating lawyers more favorably than another branch of the government would) is just a smoke screen to prevent the "real regulation" of lawyers by the government.

Now yet another law educator, an associate dean at Faulkner University's Thomas Goode Jones School of Law Allen Mendenhall, went so far as to claiming that the American Bar Association as an accrediting institution "stifles legal education" - his exact words.

Associate Dean Mendenhall explains that ABA is a non-profit organization (with foreign capital now, I might add) that has been founded, and evolved, as an equivalent of a professional guild.

It is improper to begin with to charge a professional corporation with foreign capital to regulate constitutional access to justice in a huge country to begin with - where professional interests of lawyers, providers of legal services and members of the ABA:

1. the narrowest scope of service,
2. with the least innovation and effort,
3. at the highest price possible, and
4. while restricting competition

are at stark conflict with interests of consumers to have:

1. the most versatile services;
2. with the best innovation available
3. at the lowest price - which is achievable only by the
4. widest possible competition among providers of legal services, so that consumers could choose for themselves.

That is even more so when, as Associate Dean Mendenhall now acknowledges, the ABA (whose accreditation to his law school he did not question until the accreditation started to hurt enrollment and finances of the school) has a history of quashing competition, and especially quashing competition from immigrants, indigents and minorities.

In other words, Associate Dean Mendenhall acknowledges, with references to reputable sources, that ABA started out as a professional anticompetitive racist organization.

The problem though is that Associate Dean mentions ABA's racism not in connection with failing to protect consumers (the declared reason for attorney regulation that mandatory ABA-accredited law education is part of), but as a claim to defy the ABA accreditation so that law schools could lower the bar in order to have minority students pass the bar easier.

That is, of course, a politically correct thing to say - even though such claims must be offensive and even insulting to well-performing minority students who, upon graduation, would be presumed to have been given lower standards in order to receive their diplomas.

For example, New York state already cancelled a literacy test to future teachers - claiming higher failure rates of that test by minorities.

Which, of course, defies the purpose of such tests - to ensure quality of education for service providers in order to protect consumers.

In the legal profession, claims of California law school deans blaming the rigor of the bar examination on higher failing rates by students, and the claim of Associate Dean Mendenhall that ABA certification of law schools and required minimum curriculum and number of credit hours predominantly hurts minority students.

That may well be, because minority law students may still be from less economically advantaged, or, to put it bluntly, from poorer parents, and, unlike children of rich-in-generations white attorneys and judges, they would have a harder time to stay in school for 3 years, and to pay off student loans in the future.

But, it is very obvious that the test score should not be lowered (as law school deans demand) or canceled altogether (as New York did by canceling the literacy test for future teachers) simply because more people started to fail it.

Because lowering the educational bar in a regulated occupation defies the declared purpose of licensing that occupation altogether - protection of consumers.

Unfortunately, Associate Dean Mendenhall, while pointing out the example of two prominent schools of journalism to defy what he calls a "similar authority", an accreditation council - and obviously urges law schools to now defy ABA approval of law schools - makes no attempt to even review how canceling ABA approval of law schools will affect quality of services for consumers.

Because, if regulation of education as the starting point of providing government protection of the level of legal services to customers, is not needed, regulation itself is not needed.

 But, Associate Dean Mendenhall did not go that far.  He is afraid to do that - he acknowledged that he was afraid to publish even the self-serving piece about defying the ABA certification for the sake of survival of his own law school, and job.

But, self-serving as it is, it is obvious that the legal profession (and the BUSINESS of legal education) is governed not by the profession's alleged honor, and not by the declared goal of regulation - protection of the consumer, but by down-to-earth financial considerations.

And, for survival of his job, law schools may just as well defy the ABA - and, undermine and end regulation of the legal profession as it exists.

Who would think the end of attorney licensing would be coming from money-hungry law schools...

The prohibition of child marriage in New York - 17-year olds can lawfully have sex, but cannot marry?

New York Governor Andrew Cuomo just announced, with much fanfare, that he had signed a bill to end child marriage in New York.

Now the age of consent to marriage is 18 only, marriages of minors under the age of 17 are prohibited, and between 17 and 18 are done only based on changed procedure of obtaining parental and judicial consent.

The legislation, the way it was passed, creates bizarre problems though.

In New York, the age of consent to have sex is 17.

And, minors in New York under the age of 17 can be charged with a sex crime and prosecuted by adults - and even the recent bill also signed by Cuomo with much fanfare, that raised criminal responsibility for non-violent crimes up to 18 years of age - did not change that.

Moreover, even under the current age of criminal responsibility for violent crimes - 14 years old - minors as young as 8 can be charged for a sex crime through a juvenile delinquency proceeding.

I remember that in a criminal case I represented, a #JudgeJohnFLambert, assigned to Delaware County Court) considered against a criminal defendant, over my objection, the alleged "sexual offense" committed by a sex offender at the age of 6 (!) - with no proof of it whatsoever, simply on a hearsay allegation of probation department.

In fact, Delaware County was proud of treating "sex offenders" that it kept in foster care - which means they were minors, likely under the age of consent to have sex.  Since the treatment was experimental, and Delaware County did not provide to me, up to this day, on my FOIL requests, any records that a proper formal procedure was followed to secure such experimental treatment for minors, such "treatment" was unlawful experimentation on minors.

So, let's reiterate what is the situation with sex and marriage in regards to minors in New York:

1) a minor as young as 6 years of age can be considered a "sex offender" for purposes of future calculation of a sex offender risk as an adult - while being 11 years under the state's age of consent to sex, meaning that any sexual acts that such a child engages in are PRESUMED BY LAW to be involuntary;

2) a minor as young as 8 can be charged with a sex crime through a juvenile delinquency proceeding - while being 9 years under the age of consent, meaning that any sexual acts that such a child engages in are PRESUMED BY LAW to be involuntary;
moreover, there is a possibility that such a child, as the self-report of the former Delaware County Attorney Porter Kirkwood indicated, is then forcibly "treated" as a "sex offender" - which includes manipulations with his erection patterns, thus "treatment" in itself constitutes unlawful experimentation on human subjects and sexual child abuse;

3) a minor as young as 14 can be charged and convicted as an adult for a criminal sexual offense - while, once again, being under the age of consent, and while all of his acts charged against him as a crime, are presumed to be involuntary under the state law;

4) the age of consent to have sex is 17;

5) but, the age to consent to marriage is now 18?


So, a 14-year-old can understand what he is doing enough to be charged with a FELONY RAPE AS AN ADULT, but does not have enough understanding to marry if he sires a child on another teenager?

New York needs to bring consistency into its sex offender laws.

If 18 is the age of majority, it has to be the age of majority for ALL PURPOSES, including for criminal liability for violent crimes.

If sex with a minor is statutory rape, it should be statutory rape with a minor under the age of 18, not 17.

If sex with a minor is statutory rape, a minor cannot be charged with a sex crime - either in juvenile delinquency proceeding, or in a criminal proceeding, nor can alleged sexual "misbehavior" of a minor be used against him in criminal or civil proceeding when he or she becomes an adult - because under the law, there is no such thing as sexual mis-behavior of a minor, sexual acts of minors are not VOLUNTARY under the statutory law.

As the bill exists now, it makes no sense.

Not only it is not accompanied by raising the age of criminal responsibility and prohibition to charge or prosecute minors for sex crimes.

It also infringes on constitutional rights of minors to marry, based on the current age of consent to have sex in New York at the age of 17.

The right to marry is a basic human right, and a constitutional right in the U.S.

While the state can regulate such rights to ensure health and safety of its residents, regulating the way New York did - allowing minors, by its criminal laws, to have sex at 17, but disallowing 17-year-olds to enter into marriage without consent of parents or the court at the age of consent, makes no sense to me.

Is the gender of the judge's sex partner a new qualification for office - or is it a distracting trick from the unseemly speed of how a judge's death investigation was hushed up?

A "first openly gay judge" was quickly appointed and no less quickly confirmed in New York for its highest court - New York State Court of Appeals.

See him here, sitting when a woman is standing next to him, clapping for him.  But, I guess, while who the judge has sex with is the new qualification for office in the New York judicial system, manners aren't.

Judge Feldman was appointed not only quickly, but too quickly - in fact, 2.5 months passed after the death of Judge Abdas-Salam whose body was found in the Hudson river, and investigation into her death closed less than a month after her death.

Does Cuomo think that appointing a gay man will somehow cover up the unseemly speed of how the investigation into a potential murder of a high-ranking judge was hushed up?

New survival tricks of law schools further expose the sham of attorney regulation - on ownership of law schools by law firms

It has been a trend for a while that law schools are losing students and lower admission standards, and while the legal job market continues to plummet - because there are simply not enough paying clients, and because people increasingly cannot afford high legal fees that have to incorporate the cost of legal education.

Recently, some deans of California law schools whose students had a high failure rate on the bar exam accused the bar examiners of putting standards too high.

Increasingly, there are lawsuits by law students against their law schools alleging that they were lured into incurring debt for 3 years of law schools by misleading law school statistics regarding employment rates of their graduates.

Law schools, in answer to such lawsuits, claim that law students enter law schools with open eyes and should have known about their job market prospects - and so far, law schools have won such lawsuits.

Yet, such lawsuits, and the general market tendencies of legal jobs market, do not help future enrollment, and law schools try to invent tricks to wiggle out of regulation in order to survive financially.

One of such tricks is to accept GRE scores instead of LSAT scores for enrollment - even Harvard Law School is doing it now.

Another, just recently, was proposed by a law professor - for law schools to be OWNED by law firms.

While a law professor would have a vested interest for law schools (in their current format) to survive, the concept of ownership of law schools by law firms runs contrary to the declared purpose of attorney regulation in the first place (that keeps falling through the cracks) - protection of consumers, quality of legal services.

If standards of legal education are to be maintained in order to protect consumers, it is consumers and not providers who need to set those standards - that should be a given, but somehow this common sense concept is not implemented in attorney regulation across the country.

If legal education (required by regulators in order - ostensibly - to protect consumers of legal services) is OWNED by providers of legal services - it is apparent that it is not consumers' interests, but interests of providers that would be dictated and met by such legal education, and interests of a provider of services and of a consumer of such services may be vastly different, especially in terms of scope and price of services.

A provider has an interest to provide

1. the narrowest scope of service,
2. with the least innovation,
3. at the highest price possible.

A consumer has the opposite interest on all three points above.

Of course, the law professor suggesting ownership of law schools by law firms argues actually that ownership by law firms (whose interest is to provide, once again,

1. the narrowest scope of service,
2. with the least innovation,
3. at the highest price possible -

will actually enhance efficiency and innovation of legal education.  Of course, that was a person on the brink of unemployment speaking.

To a point, I am glad that such a proposal was made - and, by a law professor, too, because it simply makes the current status quo of law schools, already heavily sponsored by law firms (which is as good as owned by them) more apparent.

It is very clear that having foxes guard chicken coops is not going to work - it will create problems, not resolve them.

In the U.S., heavy regulation of the market of legal services has already caused, and ever expands the "justice gap", where the majority of Americans cannot afford a lawyer, while not being able to hire who they want (like any individual they trust, on a power of attorney), to represent them in court or draft a legal document for them.

As I wrote before, such regulation by legal profession to allegedly protect the consumer of legal services makes no sense in the first place because of the concept of presumption of knowledge of the law BY ALL people in the U.S.

It does not make sense for the government:

• to presume that all people know all the law  - in order to put them in jail; but
• to presume that the same people do not know the law - for purposes of hiring their own legal representatives, including for the defense in the same criminal actions where their knowledge of the law is presumed for purposes of criminal liability.

Of course, the author of the piece suggesting ownership of law schools by law firms is the Professor of the struggling Charlotte School of Law, a candidate for unemployment as soon as this coming August - because his law school stands to lose its state license to operate in North Carolina if it does not prove its financial stability by this coming August.

As the saying goes, desperate people do desperate things, but in this particular situation, the desperate thing suggested - to sell law schools out to law firms - strips the fig leaf of alleged consumer protection as the justification of why law school education in a certain way is even required for legal representatives of consumers, overriding consumers' free choice of their own providers to protect themselves the way they want it.

Cancellation of Obama's political patronage policy - and the continuing "cy pres" funding of nonprofits

I recently wrote a 5-part article about the lawsuit by immigration lawyers suing the federal executive branch of the government to lift a disciplinary rule against them prohibiting ghost-writing and partial representation in federal immigration courts and before its appellate Board of Review:

• Part I - showing that the essence of the fight is for the alleged constitutional right of immigration lawyers NOT to represent clients fully in the immigration proceedings, as disciplinary rules require, thus hurting their chances for a good outcome;
• Part II - showing the conflict of interest in the Board of Directors of the plaintiff non-profit and personal interest of some of the Directors in their private businesses in the outcome of this supposedly "public interest" lawsuit;
• Part III - discussing what kind of "constitutional right" it is for attorneys to engage in ghost-writing and partial representation of clients, instead of providing a representation throughout the case;
• Part IV - discussing what the heck (and that is put politely) is the state's interest in federal regulation of representatives in front of federal boards, which is what the lawsuit is frivolously asserting, while the same states are filibustering instead of enforcing federal immigration law; and
• Part V - how existing regulation of who represents people in front of immigration boards, in its entirety, makes no sense and hurts consumers.

I specifically wrote about the fact that California State Attorney General made the plaintiffs in the case his office's paid informants - by giving them a $125,000 grant and by putting an attorney into their office whose only job was to investigate "notario fraud" - in other words, to conduct investigations against NWIRP's own competitors, ordered by a State Attorney General to enforce what a State Attorney General has no right to enforce - federal disciplinary rules of representation in federal immigration courts.

That was disclosed in California State AG's amicus brief.

Of course, the inconsistency of the argument that the State Attorney General of the State of California is supporting, through an amicus brief in support of his own paid informant NWIRP, VIOLATIONS of the very same disciplinary rules that the State Attorney General is enforcing and financing such enforcement by giving NWIRP (violator of federal regulations) $125,000 in grant money to conduct investigations against its own competitors, other violators of the same disciplinary rules - is somehow completely overlooked by the plaintiffs in that lawsuit, the State of California Attorney General, by the federal judge who has so far imposed a stay without giving an explanation or legal reasoning, and by the media and members of the public who support the lawsuit simply because it is "against Trump".

But, one more thing needs to be clarified for the public, and especially in view of U.S. Attorney General's announcement that it is stopping the unconstitutional policy of directing settlement money from settlements with wrongdoers to finance special interest groups - something that the Obama administration introduced and widely practiced.

NWIRP is exactly such a special interest group, and the California State Attorney General did exactly what U.S. Attorney General just prohibited - gave it a "cy pres" grant of $125,000 to conduct investigations of alleged violators of the same disciplinary rules that NWIRP is suing U.S. Attorney General Sessions for its own "constitutional right" to violate (with support from the State of California Attorney General).

Let's go back to what the California State AG said in its amicus brief:






So, while fighting the Trump administration in court AGAINST enforcement of federal immigration law, the State of California gave $125,000 to a non-profit, NWIRP, to SUPPORT enforcement of the same federal immigration law - but only some of it, and only against NWIRP competitors.

And, the mysterious "cy pres" grant means "leftovers" from class lawsuits awarded BY JUDGES to non-profits designated by the government, and thus favored by the government.

Since NWIRP is taking a political stand against the federal government, the "cy pres grant" is used by the state government, the chief law enforcer of the State of California, to finance  special interest group - which was just prohibited by U.S. Attorney Sessions.

U.S. Attorney sessions pointed out WHO should get the "cy pres leftovers":

• victims in a potential class action, or
• the taxpayers - whatever is unclaimed should go back to the government, not to the special interest groups.

So, once again, the "hero" NWIRP, that is suing for special treatment, is nothing other than a special interest group and a paid informant of the Attorney General of the State of California getting money that victims in class lawsuits did not get, in order to promote business and political interests of its Directors.

And that practice is unconstitutional, and just prohibited by the U.S. Attorney General.

Will the U.S. Attorney General now look into "cy pres grants" distributed by states to their special interest groups?  Those non-profits who declare they do something good, while there is no law requiring the non-profits to dedicate any amount of money or even percentage from its budget to the declared mission - and who can instead finance lavish offices, good salaries, political campaigns, and dedicate the most minimal amount of money, simply to maintain interest of political donors in their company?

He should.

Political correctness, occupational regulation and the 1st Amendment

What is occupational and industry regulation for?

Isn't it supposed to be protection of consumers from bad products and dishonest merchants or service providers?

Then, what is the legality of prohibition for a farmer to sell his perfectly good apples to consumers in 2017 because he refused to provide his orchard as a location for a wedding of a gay couple in 2014?

What did that do to the quality of his apples?

And, what good does ruining a business of an apple grower do to consumers of apples?

Wouldn't there be less apples, at higher prices?

Not to mention that the government may not regulate based on somebody's political views.

And, the orchard grower did not discriminate as to who is or is not to buy his apples.

So, the politically correct assault of the government on the 1st Amendment continues.  The stupid way.  And at the expense of consumers - as always.