"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Friday, April 25, 2014

Let's start experimental deregulation of the market of legal services and close the "justice gap". It is immoral for lawyers to serve only 20% of the market and block service for the other 80%.

I have referred in this blog to recurring statements of New York Chief Judge Jonathan Lippman to various law school graduates that 80% of litigants in New York courts cannot afford a lawyer, and that we can just as well close our courthouses if we cannot ensure "access to justice for all" (A2J4A).

Yet, it is obvious mathematically that when 4/5 of the market is not served, A2J4A is not possible unless the legal services industry is deregulated.

New York did the opposite, in 2013 it upped the ante for unauthorized practice of law (UPL) by making it an E felony, up from a misdemeanor it was before.

When will the American and the New York legal profession get it that it is working against the global trends toward deregulation of the market of legal services?  Legal services have been deregulated in Great Britain; deregulation started in Arizona, deregulation, at least through such cheaper alternatives as LegalZoom, has started in South Carolina.

Yet, let me ask you a question, why state bar associations are up in arms against LegalZoom, trying to prevent people to get cheaper alternatives to services they cannot afford anyway? Is it moral for the legal profession to block opportunities for people to receive any help as opposed to no help at all because they cannot afford it?  The legal profession is not going to cover the now un-served sector of the market (4/5 in New York, according to Judge Lippman!) by pro bono services.  Yet, it acts as a dog in the manger preventing non-lawyers from serving people would not serve for lower fees anyway.

Everybody knows that real estate transactions are done by attorneys' assistants, clerks and even secretaries.  That's not unauthorized practice of law?  And isn't it true that those assistants and secretaries may have a better understanding as to how to do real estate transactions than their lawyer bosses do?

The same can be said for any other part of the law, possibly save for litigation, but even then.   Law schools do not teach litigation so much as they teach how to pass the bar exam, and thus stuff students on those courses.  Litigation skills comes later, with experience.  Any intelligent person with or without a college degree can self-teach evidence, procedure and litigation skills.  It is not rocket science and lawyers should not pretend to have it appear like rocket science.

Where the overwhelming majority of the market is un-served because prices are too high and people cannot afford them, and where the service providers are not in any hurry to drop prices in any foreseeable future, and where legal services are vital to ensure people's constitutional right to access to courts, the solution should be a no-brainer:  deregulate, at least on an experimental basis, in one county, one judicial district, and take the statistics.

The public can be protected through information, the public can also do its own homework verifying whether non-lawyers possess the necessary knowledge to provide legal services in court.

Adult and even child volunteers are allowed to participate in clinical trials of medicines with unknown safety, which can potentially kill those volunteers.  
The U.S. Food and Drug Administration even encourages parents to enroll their children into clinical trials, which may be both potential beneficial and potentially fatal to the children.
All that it takes is the signature of informed consent and assumption of risk, and for chikdren vokunteers who are legally incompetent to give such a consent for themselves, it is allowed for their parents to do that on their behalf.   In case of a severe side effect, it can lead to the volunteer's physical injury or death, and yet it is legal.

Why is it different in the field of provision of legal services?  Who can state with a straight face that a risk of losing one's life is lower than the risk of losing one's civil case, or even a criminal case in a no-death-penalty state?  Why cannot well-informed adult volunteers participate in an experimental pilot project allowing anyone who the volunteer gave a power of attorney to represent their interests in court?

Doesn't New York have judges in local town and village court, who are not attorneys, who may have no formal education at all, but who handle jury trials, and New York allows it?  So, why it is a felony for a non-lawyer to represent a criminal defendant in a trial where a non-lawyer presides over the case, rules on admissibility of evidence, on motions, gives instructions on the law to the jury and sentences the defendant?

Why not allow representation in court by lay individuals?  How much more dangerous can it be than a non-lawyer judge sending a person to jail for up to a year, or more if terms are consecutive? 

What volunteers in an experimental pilot program can do is, check out on themselves a new model of provision of legal services which may close the "justice gap" and solve the civil rights crisis that now exists in the U.S. because much needed legal services are not affordable? 

Those volunteers may chose their own representative in court, let's say, an individual they actually trust to act within their best interests, within the bounds of the law.  Why cannot people be allowed to do that, at their own risk, on an experimental basis, when the alternative is having no representation in court at all?

The experimental program should run for a time allowing for adjustment of all parties to the new setup.  Statistics should be professionally gathered and analyzed for customer satisfaction and comparative outcome, as compared to pro se representation.

If experimental model proves successful, it can be gradually expanded and finally result in complete deregulation of legal services, which may benefit the public tremendously.

Deregulation will cover the un-served 4/5 of the market of legal services, will lead prices for such services down to their true market value, create jobs and raise tax revenues. 

And as to horror stories, the proof of the pudding is in the eating.  Arizona does not have horror stories about non-lawyers providing legal services, any more than statistics of attorney malpractice, and the same is true for the U.K.

The government should get out of the business of regulating legal services.  It is unacceptable to have 4/5 of demand un-served in an important government-regulated sector of economy.

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