Why attorney license revocation proceedings in New York are criminal proceedings

 

Why attorney license revocation proceedings in New York are criminal proceedings

 

Tatiana Neroni, Juris Doctor

October 19, 2021 (C)

Contents

List of references/authorities. 1

The US Supreme Court rule to determine whether proceedings are criminal in nature, despite the government’s declaration that they are civil in nature. 2

The goal of retribution reflected in New York State statute. 2

The goal of retribution/punishment reflected in the fact that attorneys in New York, with the loss of law license, lose certain important rights they had before they obtained their law license. 2

The goal of deterrence in New York State Rule governing imposition of attorney “discipline”/punsihment 4

 

List of references/authorities

Court cases

Bell v. Wolfish, 441 U. S. 520, 539, n. 20 (1979)................................................... 2

Kennedy v. Mendoza-Martinez, 372 US 144 (1963).................................... 2, 3, 4

Matter of Aretakis, 2008 NY Slip Op 09693, 57 AD3d 1160 (3^rd Dept., 2008).............................................................. 5

Matter of Friedberg, 2021 NY Slip Op 02109, 194 AD3d 126 (1^st Dept., April 6, 2021)................................................ 4

Matter of Walker, 2020 NY Slip Op 00835, 181 AD3d 62 (1^st Dept., 2020) 5

Matter of Yu, 2016 NY Slip Op 07103, 145 AD3d 43, (1^st Dept., 2016)........... 5

United States v. Halper, 490 US 435 (1989)............................................... 2, 3

Statutes

New York Judiciary Law §90(4)(a).... 2, 5

New York State Judiciary Law § 90(2)(b).............................................................. 3

Other Authorities

Jewish Virtual Library, Banishment....... 4

Regulations

22 NYCRR 1240.8(b)(2)......................... 5

Constitutional Provisions

U.S. Const., Amendment 14, Due Process Clause.................................................. 5

U.S. Const., Amendment 14, Equal Protection Clause................................. 5

The US Supreme Court rule to determine whether proceedings are criminal in nature, despite the government’s declaration that they are civil in nature

The US Supreme Court has provided that a declaration by the state of the supposedly civil nature of a proceeding does not stop, but only starts an analysis whether the nature of the proceeding is, instead, criminal, on its face and as applied in certain specific cases.  According to the U.S. Supreme Court, a finding that the proceeding, in addition to civil, remedial goals, has also the goal of either punishment, or deterrence, defines the proceeding as criminal in nature[1].

The goal of retribution reflected in New York State statute

In attorney license revocation proceedings in the State of New York, the goal of retribution appears in a statute requiring an automatic permanent revocation of attorney license (“disbarment”) in case of conviction of a serious crime, a felony[2] – which is both punishment for past actions and deterrence of others.

The goal of retribution/punishment reflected in the fact that attorneys in New York, with the loss of law license, lose certain important rights they had before they obtained their law license

The U.S. Supreme Court has several additional factors from a case prior to US v Halper ) on which U.S. v Halper) relies to determine whether proceedings declared as “civil” by the government are criminal proceedings in nature[3].

These factors are:

• 1.     whether the sanction involves an affirmative disability or restraint,
• 2.     whether it has historically been regarded as a punishment,
• 3.     whether it comes into play only on a finding of scienter,
• 4.     whether its operation will promote the traditional aims of punishment—retribution and deterrence,
• 5.     whether the behavior to which it applies is already a crime,
• 6.     whether an alternative purpose to which it may rationally be connected is assignable for it, and
• 7.     whether it appears excessive in relation to the alternative purpose assigned[28] are all relevant to the inquiry, and may often point in differing directions

As shown in US v Halper), 26 years after deciding Kennedy, the U.S. Supreme court later singled out factor #4 from the Kennedy list and narrowed the list, allowing the determination of criminal nature of a declared-civil proceeding on that factor alone, so, other factors can be used as a strengthening point of such a determination.

Whether the sanction brings with it a loss of rights is prominently the factor #1 in the Kennedy list.

In attorney license revocation proceedings, the loss of rights accompanying revocation of the license and caused by such revocation is prominently shown:

• 1.     policy # 1, legislative – by forbidding every attorney who have lost his license the rights that attorneys had before receiving such a license, namely, participating in democracy which requires “expressing to another opinion about the law or its application”[4], and
• 2.     policy # 2, by a court precedent - by court treatment of attorneys whose law licenses are revoked – forbidding attorneys occupations allowed to other people without a law license, and that had been allowed to suspended or disbarred attorneys before they ever obtained their law licenses[5].

Policy # 2 above appears to parallel the ancient punishment of banishment[6] that involved an additional enforcement measure - a punishment of anybody who would harbor and give shelter and/or comfort to a state-banished person.

Therefore, policy # 2 reflects the 1^st factor of the Kennedy list above, as well as the 5^th factor from the same list – whether behavior to which the sanction applies is already a crime.  It was a crime, not in this country, age and structure of government – but it was, and a serious one.

Notably, banishment of attorneys, punishment by starvation, after their licenses are revoked is so important for New York courts that courts have invented the draconian policy #2, ruling the remaining attorneys by terror and forbidding licensed attorneys to engage in legal conduct of hiring non-lawyer personnel if that legal conduct involves compassion toward their banished colleagues – courts (and not only New York courts) revoke licenses of attorneys as punishment for harboring/giving comfort and compassion/hiring banished attorneys to work in positions that do not require law licenses (secretaries, paralegals)[7]. 

The goal of deterrence in New York State Rule governing imposition of attorney “discipline”/punsihment

The goal of deterrence appears in the New York State rule regarding dispositions in attorney license revocation proceedings:

“Discipline. In presenting arguments on the issue of appropriate

discipline for misconduct, the parties may cite any relevant factor,

including but not limited to the nature of the misconduct, aggravating

and mitigating circumstances, the parties’ contentions regarding

the appropriate sanction under the American Bar Association’s

Standards for Imposing Lawyer Sanctions, and applicable case law

and precedent. Upon a finding that any person covered by these

Rules has committed professional misconduct, the Court may

impose discipline or take other action that is authorized by law and,

in the discretion of the Court, is appropriate to protect the public,

maintain the honor and integrity of the profession, or

deter others from committing similar misconduct[8].”

 

New York courts revoking attorney licenses apply and reference this rule and openly state in license revocation decisions that in addition to the “remedial” purpose of the law license revocation proceedings the sanction in such a proceeding has a goal to deter the same person and others from similar misconduct[9].

Moreover, New York courts apply the 2^nd punishment of disbarment for the same past conduct not only for a criminal felony conviction[10], but also for some criminal misdemeanor convictions[11], which courts equate with sanctions in civil proceedings[12].

Thus, attorney revocation proceedings in New York are criminal in nature on their face and as applied in specific cases since rules governing such proceedings contain, in addition to civil, “remedial” goals, both of the penal goals declared by the US Supreme Court as designating the criminal nature of a proceeding – retribution and deterrence.

Consequently, attorneys in license revocation proceedings in the State of New York are entitled to have, as a matter of Due Process and Equal Protection of Law guaranteed by the 14^th Amendment to the U.S. Constitution, the same host of procedural and substantive rights that all other criminal defendants in the State of New York enjoy.

 

 

 

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[1] United States v. Halper, 490 US 435 (1989).  We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence.  See, e. g., Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168 (1963) (these are the "traditional aims of punishment"). Furthermore, "[r]etribution and deterrence are not legitimate nonpunitive governmental objectives."  Bell v. Wolfish, 441 U. S. 520, 539, n. 20 (1979). From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term”.

[2] New York Judiciary Law §90(4)(a) (“Any person being an attorney and counsellor-at-law who shall be convicted of a felony as defined in paragraph e of this subdivision, shall upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such.”)

[3] Kennedy v. Mendoza-Martinez, 372 US 144 (1963).

[4] New York State Judiciary Law § 90(2)(b): “It shall be the duty of the appellate division to insert in each order of suspension or removal hereafter rendered a provision which shall command the attorney and counsellor-at-law thereafter to desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another. In addition it shall forbid the performance of any of the following acts, to wit: … b. The giving to another of an opinion as to the law or its application, or of any advice in relation thereto”.

[5] See e.g. Matter of Brandes, 2015 NY Slip Op 81096[U] (2d Dept 2015), aff’d, 28 NY3d 1041 (2016) (an attorney whose law license was revoked for 7 years was denied reinstatement of his license because during the period when his license was revoked he worked as a paralegal – which does not require in New York a law license or any formal education);  see also Matter of Castillo, 2017 NY Slip Op 00531 (3rd Dept., January 26, 2017) (Even though the court did not publish the list of prohibited activities in the Matter of Castillo, the motion of attorney Castillo for permission to engage in activities enumerated in his motion was denied in full, and the author obtained from the court a copy of Gaspar Castillo’s motion, with the following activities listed (and prohibited) by the court as “practice of law” – for a suspended attorney, but not for any other person without a law license or law degree or any formal education:  

 

organizing and compiling legal documents;	File documents	Review insurance company documents for compliance with underwriting and coverage requirements
organizing and putting together trial/hearing notebooks	Prepare and sign affidavits of filing (service)
organizing and putting together trial/hearing notebooks	Serve documents and prepare and sign affidavits	Review insurance claims for underwriting and coverage requirements
Fill out/fill in legal documents	Review CDs of police interrogations and make notes of times and words spoken as directed	Process insurance company claim documents
Serve documents and prepare and sign affidavits	Proofread and edit legal documents	Perform investigative duties or work in an investigative capacity
Compile and organize relevant case law and statutes	Proofread and edit contracts	Prepare and write reports
Draft omnibus motions and other pleadings for review	Summarize testimony in hearing or trial transcripts	Review immigration documents
Draft briefs on legal issues as directed	Draft deed, mortgage, satisfaction, and other real estate documents for review	Prepare immigration documents including petition for legal residency, status, naturalization, applications for work authorization or other legal status in the United States
Compile and put together records on appeal	Prepare statements of sale and other closing documents

 

[6] See Jewish Virtual Library, Banishment Banishment (jewishvirtuallibrary.org) (covering a lot of examples of banishment from a large number of lay and religious medieval sources).

[7] See e.g. Matter of Friedberg, 2021 NY Slip Op 02109, 194 AD3d 126 (1^st Dept., April 6, 2021).

[8] 22 NYCRR 1240.8(b)(2), emphasis added.

[9] See e.g. Matter of Walker, 2020 NY Slip Op 00835, 181 AD3d 62 (1^st Dept., 2020) (“The evidence before the Referee clearly established the seriousness of respondent's assault on an intimate partner. Even when taking into consideration the mitigating circumstances, a period of suspension for such an assault is warranted in order to maintain the honor and integrity of the profession and deter others from committing similar misconduct (22 NYCRR 1240.8 [b] [2])”.

[10] See New York Judiciary Law §90(4)(a);  Matter of Yu, 2016 NY Slip Op 07103, 145 AD3d 43, (1^st Dept., 2016).

[11] Matter of Walker, 2020 NY Slip Op 00835, 181 AD3d 62 (1^st Dept., 2020), Matter of Aretakis, 2008 NY Slip Op 09693, 57 AD3d 1160 (3^rd Dept., 2008).

[12] See Matter of Aretakis, 2008 NY Slip Op 09693, 57 AD3d 1160 (3^rd Dept., 2008)(A criminal defense attorney made a motion to recuse a judge in a criminal proceeding.  The judge sanctioned the attorney for “frivolous conduct”, and the attorney appealed.  The licensing court, in its capacity as the appellate court, vacated the sanctions on the only basis that the rule of frivolous conduct is only used in civil proceedings.  Additionally, the court remanded the case back to the same judge with an instruction how to sanction the attorney so that the appeal would be affirmed.  The court did so, imposed a criminal sanction for contempt of court, the licensing court, in its capacity as the appellate court, affirmed (as it promised before), and then summarily revoked the attorney’s license based on that criminal contempt conviction.  The case shows that the licensing/appellate court equated a civil sanction with a criminal conviction, considering the difference a matter of mere formality).

New York State Attorney General Leticia James encourages mass commission of two crimes, state and federal, in order to please her professional association

Previously I have posted the entire memorandum of law of 2020 by New York State Attorney General Leticia James allowing real estate agents in New York to practice law in the state if they write only "simple contract" that do not violate agreements between local associations of lawyers and realtors (among some seemingly punitive wordplay that is devised to conceal the main permissive meaning of the memo).

Practice of law in the state of New York by people who do not have a license to practice law from a New York State Appellate Division ("unauthorized practice of law", or UPL)  is a crime of misdemeanor.

Additionally, market-sharing agreements (like associations of attorneys and realtors deciding if it is ok for members of one another's association to invade the other's trading turf) are crimes prohibited by federal antitrust laws (The Sherman/Clayton Act).

Additionally what constitutes a crime in New York must be defined by statute, the New York Penal Code, and not by agreements between trade associations - they have no legislative powers in New York.

So, neither NYS AG James, nor the court whose decision she quotes in her Memorandum of law could endorse commission of a state crime (UPL) on a condition that it is approved through commission of a federal crime.

Note that an attorney representing the State of New York endorses commission of these two crimes in order to please her own professional association.

Note that the duty of this elected public official is - supposedly - to enforce the laws of the State of New York and protect New-Yorkers from violators of the laws, not to encourage violation of the law.

AG Letitia James tries to put more makeup on the - already stinking - corpse of attorney regulation in New York. Read her full memorandum. Comments will follow in a separate article.

 

Legal Memorandum LI04: Real Estate Brokers and Salespersons and the Unauthorized Practice of Law

REAL ESTATE BROKERS AND SALESPERSONS
AND THE UNAUTHORIZED PRACTICE OF LAW

Article 12-A of the Real Property Law provides for the licensure of real estate brokers and salespersons. A licensee is statutorily held to standards of competency and trustworthiness. Failure to abide by such standards can result in the suspension or revocation of the license. The New York State Department of State has long considered the unlawful practice of law by a real estate broker or salesperson as grounds for disciplinary action. Its interpretation of what constitutes unlawful practice has been guided by relevant provisions of the Judiciary Law and by the seminal case of Duncan & Hill Realty, Inc. v. Department of State, 62 A.D.2d 690, (4th Dept. 1976), app dismissed, 45 N.Y.2d 821, 381 N.E.2d 608, 409 N.Y.S.2d 210 (1978).

Judiciary Law §478 prohibits the practice of law by non-attorneys, the purpose of which is to protect the public from the dangers of legal representation and advice given by persons not trained, examined, and licensed for such work. Jemzura v. McCue, 45 A.D.2d 797, 357 N.Y.S.2d 167 (3rd Dept. 1974), app dismissed 37 N.Y.2d 750, 337 N.E.2d 135, 374 N.Y.S.2d 624 (1975). Section 484 of the Judiciary Law additionally provides that "no natural person shall ask or receive, directly or indirectly, compensation for... preparing deeds, mortgages, assignments, discharges, leases or any other instruments affecting real estate... unless he has been regularly admitted to practice, as an attorney or counselor..." A violation of either of these sections is a misdemeanor. See, Judiciary Law §485. It may be prosecuted by the attorney general, or, upon leave of the supreme court, by a bar association. See, Judiciary Law §476-a. Additionally, should a real estate broker or salesperson be found to have engaged in such unlawful practice, the Department will take independent action against such person's license.

In Duncan & Hill, the court upheld the Department of State's determination that a real estate broker who was not a licensed attorney demonstrated untrustworthiness and incompetence in violation of Real Property Law §441-c, finding that, when he prepared documents that included detailed mortgage terms he had devised, he engaged in the unauthorized practice of law.

The court recognized that brokers have long been permitted to draft "simple" contracts in the context of their brokerage activities. Duncan & Hill, supra, 62 A.D.2d at 696, 405 N.Y.S.2d at 342. However, the court cautioned as follows:

...the so-called "simple" contract is in reality not simple. It is often the most important legal transaction that the average person will ever undertake--the purchase of a home, and it involves very substantial legal rights which deserve the advice and guidance of a lawyer. The argument that the need for expediting such transactions justifies their consummation without reference to an attorney is specious. The protection of the interests of the parties to such contracts is sufficiently important to justify a little delay for reflection and legal advice, so as to guard against a thoughtless drafting of a hastily conceived contract. The personal interest of the broker in the transaction and the fact that he is employed by one of the opposing parties are further reasons to require that, insofar as the contract entails legal advice and draftsmanship, only a lawyer or lawyers be permitted to prepare the document to ensure the deliberate consideration and protection of the interests and rights of the parties. Duncan & Hill, supra, 62 AD2d at 697-98, 405 N.Y.S.2d at 343-44; footnote omitted.

Recognizing the intent to protect the public to ensure that real estate brokers and salespersons do not exceed the bound of their competence and prepare documents the execution of which requires a lawyer's scrutiny and expertise, the court went on to state:

It is for this reason that real estate brokers and agents must refrain from inserting in a real estate purchase offer or counteroffer any provision which requires the exercise of legal expertise. Thus it is not proper for such a broker to undertake to devise the detailed terms of a purchase-money mortgage or other legal terms beyond the general description of the subject property, the price and the mortgage to be assumed or given. A real estate broker may readily protect himself from a charge of unlawful practice of law by inserting in the document that it is subject to the approval of the respective attorneys for the parties. Moreover, a real estate broker or agent who uses one of the recommended purchase offer forms . . . or one recommended by a joint committee of the bar association and realtors association of his local county, who refrains from inserting provisions requiring legal expertise and who adheres to the guidelines agreed upon by the American Bar Association and the National Association of Real Estate Brokers, above noted, has no need to worry about the propriety of his conduct in such transactions. Duncan & Hill, supra, 62 AD2d at 701, 405 N.Y.S.2d at 345.

Under these circumstances, a real estate broker or salesperson who prepares a simple fill-in-the-blanks purchase and sale contract can avoid the unlawful practice of law by including in the contract a condition making it subject to approval by each party's attorney. Alternatively, brokers and salespersons can utilize a fill-in-the-blanks form that has been approved by a joint committee of the bar association and realtors association of his or her county. Such an approved form would only require that the real estate brokers and salespersons fill in non-legal provisions such as the names of the parties, the date and location of the closing, a description of the property, the consideration for sale and any other relevant facts. The brokers and salespersons would not be permitted to develop any "legal terms". Further, since the contract establishes significant legal rights and obligations, it should clearly and prominently indicate on its face that it is a legally binding document and clearly and prominently recommend that the parties seek advice and counsel from their lawyers prior to affixing their signature to the document.

Brokers and salespersons must refrain, even with respect to these approved contracts, from providing legal advice to their clients. Nor may they discourage the parties from seeking advice from their attorneys. Brokers and salespersons may not add provisions to the approved contracts unless they make the entire contract subject to and conditioned upon the review and approval of each party's attorney. In addition, brokers and salespersons may prepare purchase and sale contracts, subject to the above conditions, only as an incident of the purchase and sale of real estate and may not charge a separate fee for preparation of the contract or share in the fees of attorneys for preparation or review of these contracts. See, Opinion of N.Y.S. Attorney General 96-F11, dated November 14, 1996.

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The information in this Memorandum should not be used in lieu of seeking appropriate legal advice. In addition, the information is subject to change based on future interpretations of the licensing law by the courts and/or for any relevant amendments. Private legal counsel should be consulted for legal advice related to this Memorandum.

 

February 14 2020

On constitutionality of government regulation of opponents’ representatives in court in the United States

 

On constitutionality of government regulation of opponents’ representatives in court

in the United States

 

Tatiana Neroni, Juris Doctor

October 2, 2021 ©

Court cases

Bates v. State Bar of Arizona, 433 U.S. 350 (1977)............................................ 2

Brazee v. Michigan, 241 U.S. 340 (1916).......................................................... 2, 3

Butz v. Economou, 438 U.S. 478 (1978) 1

Gideon v. Wainwright, 372 U.S. 335 (1963)................................................... 2

Matter of Giuliani, 2021 NY Slip Op 04086, 197 AD3d 1 (1^st Dept., June 24, 2021)................................................ 2, 3

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)................................... 3

Statutes

42 U.S.C. 1988(b), Proceedings in vindication of civil rights, attorney’s fees....................................................... 2

Other Authorities

James E. Moliterno, Politically Motivated Bar Discipline, 83 WASH. U. L. Q. 725 (2005)............................................ 3

Jones, Ira.  Critical Race Theory Remakes Connecticut School District | National Review, Indiana Conservatives for reason, July 19, 2021..................................................... 3

Storace, Robert.  Attorney Miller Believes Deck Is Stacked Against Her for Reinstatement to State Bar.  Civil rights attorney Josephine Smalls Miller will make her case for reinstatement to the state bar on Sept. 1, Connecticut Law Tribune, August 21, 2021........... 3

Constitutional Provisions

U.S. Constitution, Amendment 6, Right to Counsel............................................ 2

 

 

The U.S. Supreme Court has included into its requirement of fair court proceedings adversarial nature of such proceedings[1].

There may be no true adversarial court proceeding where one opponent (especially – the more powerful one) controls the other, or its representative, by means outside of the particular court proceeding, where

1.     A party in litigation must choose its trusted representative in court from the list approved by its opponent in litigation, which undermines any possibility of trust to such a representative; and

2.     A powerful party in litigation (the government) may remove representatives of its opponents in litigation at a whim, without knowledge or consent from the party who has chosen that particular representative.

Yet, this is exactly what is happening in the American courts – and the recent case of New York’s suspension of Rudy Giuliani’s law license[2] is just one of such examples.

Back at the beginning of the 20^th century the U.S. Supreme Court has ruled that the only business that may be constitutionally regulated by the government[3] is a business of such a nature that without a legislative regulation a lot of people will suffer serious harm[4].

At the same time, the U.S. Constitution recognizes the important role of an attorney in cases where an individual opposes the government in court, by

·       its direct text[5],

·       federal statutes providing financial incentives for attorneys to sue the government on behalf of indigent individuals for human rights abuses[6] and

·       by US Supreme Court precedent[7].

States also provide free counsel to indigent defendants in “quasi-criminal” settings where proceedings threaten loss of constitutional rights, such as child neglect/abuse proceedings by social services against parents and “civil” contempt proceedings.

In view of importance of the right to counsel in cases where the government is the opponent in litigation, whether the government is the plaintiff (criminal, CPS cases) or a defendant (federal civil rights lawsuits), it is important for litigants to have a choice of representatives in court whose livelihood is not controlled by opponent in litigation, the government.

Yet, not only livelihoods of such attorneys are, in fact, controlled by their opponent in litigation, the government, but such representatives of opponents of the government in litigation are actually targeted by the government in license revocation proceedings, to remove the counsel of choice from the opponent, without opponent consent, and to gain this way an advantage in litigation.

The license revocation of the civil rights lawyer Rudy Giuliani who dared to bring a civil rights lawsuit against the government claiming improper actions of government officials in several states presidential elections in 2020[8] is one of the most recent and the most illustrative examples of this targeting[9].  The license revocation was targeting not only Giuliani himself, but, very obviously, his client Donald Trump who was deprived of his chosen counsel in and out of court by his opponents in litigation.

Another recent example is revocation of the license of a black civil rights attorney from Connecticut, for suing a judge and “slandering the judicial system” of the state, specifically, for accusing the state court system of racism[10].  Similarly, it was attorney Miller’s clients – opponents of the government in civil rights lawsuits – who were stripped of her services without their consent, by their opponents in litigation, when license was revoked by the government from civil rights attorney Miller, on contrived grounds:

·       slandering a system, and especially a government system, is not possible to do legally in the USA, since in American jurisprudence, one cannot “slander a system”, only a person,

·       the judge attorney Miller sued in federal court never counter-sued her for defamation,

·       had the judge done so, he would have lost because of high pleading standards and high burden of proof put on government officials in defamation lawsuits in the U.S. Supreme Court 1^st Amendment jurisprudence[11],

·       the reason for this political targeting and punishment of the civil rights attorney in Connecticut for asserting that state courts are racist becomes tragi-comical in view of the same state’s decision to teach in its schools the “Critical race theory”, asserting that systemic racism permeates all governments (including, obviously, the state courts), and the entire society in the United States[12].

Not in Connecticut, not in New York, not anywhere else in the United States, did legislatures determine, in order for the government to regulate representatives of its own opponents in litigation, civil rights/criminal defense/defense-against-CPS attorneys, that business of these lawyers is of such nature that without legislative control over such services a lot of people will come to a lot of serious harm[13].

On the opposite, a lot of people are obviously coming into a lot of serious harm when they are given no choice by the government, but to choose representatives in court, when sued by the government, representatives whom they must trust with secret details of their lives and entrust the future of their own life, liberty, property – only from the lists approved by their powerful opponent in litigation.

In fact, while such control exists, services of counsel in defense of civil rights situations that are so highly valued – in words, at least - by the U.S. Constitution, federal statutes and the U.S. Supreme Court precedent are stripped of their value through control over them by the powerful opponent in litigation, the government.

Moreover, while such control exists, none of court decisions in cases where government is a party in litigation may be considered legitimate, since the process used in arriving at those decisions lacked the true independence of the representatives of the government’s opponents in litigation, and thus lacked the true adversarial nature required by the U.S. Supreme Court for court proceedings.

It is obvious that regulation by the government of criminal defense, defense-against-CPS and civil rights lawyers is unconstitutional as regulation of representatives of government’s opponents in litigation since it

·       emasculates people’s right to counsel given by the U.S. Constitution or federal statute,

·       allows the most powerful party, with the burden of proof in criminal and child abuse/neglect cases, to always have an unfair advantage in such litigation,

·       destroys legitimacy of court decisions in cases where the government is a party in litigation by removing the required element of court proceedings – a true adversarial nature of such proceedings.

Regulation by the government in the US of representatives of its own opponents in court must stop.

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[1] Butz v. Economou, 438 U.S. 478 (1978) (“the safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct. The insulation of the judge from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal are just a few of the many checks on malicious action by judges”, emphasis added).

[2] Matter of Giuliani, 2021 NY Slip Op 04086, 197 AD3d 1 (1^st Dept., June 24, 2021)..

[3] The U.S. Supreme Court has ruled that the “practice of law” is a business in Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (regulation of lawyers may not forbid business advertisements of their services by lawyers).

[4] Brazee v. Michigan, 241 U.S. 340 (1916) (“Considering our former opinions it seems clear that, without violating the federal Constitution, a state, exercising its police power, may require licenses for employment agencies and prescribe reasonable regulations in respect of them, to be enforced according to the legal discretion of a Commissioner. The general nature of the business is such that, unless regulated, many persons may be exposed to misfortunes against which the legislature can properly protect them”, emphasis added).

[5] U.S. Constitution, Amendment 6, Right to Counsel.

[6] 42 U.S.C. 1988(b), Proceedings in vindication of civil rights, attorney’s fees.

[7] Gideon v. Wainwright, 372 U.S. 335 (1963).

[8] Matter of Giuliani, 2021 NY Slip Op 04086, 197 AD3d 1 (1^st Dept., June 24, 2021)..

[9] See e.g. Moliterno, James E.  Politically Motivated Bar Discipline, 83 WASH. U. L. Q. 725 (2005).

[10] See Storace, Robert.  Attorney Miller Believes Deck Is Stacked Against Her for Reinstatement to State Bar.  Civil rights attorney Josephine Smalls Miller will make her case for reinstatement to the state bar on Sept. 1, Connecticut Law Tribune, August 21, 2021.

[11] New York Times Co. v. Sullivan, 376 U.S. 254 (1964)..

[12] See e.g. Jones, Ira.  Critical Race Theory Remakes Connecticut School District | National Review, Indiana Conservatives for reason, July 19, 2021.

[13] Brazee v. Michigan, 241 U.S. 340 (1916).