"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.

Saturday, April 26, 2014

What exactly constitutes the practice of law in New York if top appellate judges who handle admission and disbarment do not know what it is?

I have experienced several events that made me wonder if New York state courts understand and correctly apply what exactly constitutes the practice of law in New York.  I doubt that courts even know what it is, from those episodes that I witnessed and am going to describe below.  It appears that, like with obscenity, "you know it when you see it", which to me is an unacceptable definition of something that can lead a person to a felony charge if not complied with.

Episode No. 1

I have been to a law school graduation in May of 2013 where New York State Chief Judge Jonathan Lippman gave a speech to the law school graduates.

Throughout his speech, Judge Lippman called law school graduates as "lawyers".  Judge Lippman's speeches at law school graduations are widely available on YouTube, and in those speeches he always addresses law school graduates as "lawyers".

In December of 2013, Judge Lippman said the same to another group of law graduates.  Watch the video of Judge Lippman's commencement speech, where at about the 4th minute Judge Lippman says:  "Graduates, you can now call yourself lawyers".  Really?  Before taking and passing the bar, being approved by the character committees and getting a law license?  And that is from the lips of the Chief Judge of the state of New York?

Yet, the law in New York is that you can only be a "lawyer" when you, first, took a bar examination which the law school graduates did not yet take, when you've passed through the character committee, which law school graduates did not yet do, and when you are licensed to practice law,  which obviously does not occur on graduation from law school.

Thus, the Chief Judge of New York State Jonathan Lippman addressed as "lawyers" people who were, as a matter of law, not lawyers.

Moreover, when you are not a lawyer as a matter of law, and you represent yourself as a lawyer, you can be charged with a felony. 

Does Judge Lippman know the law?  Why would he mislead the new law graduates this way?  What kind of example does Judge Lippman set to those young people?  That a judge of high enough rank can say anything from a pulpit and it will be all right and the captive audience should nod and be happy with what the judge have said and consider it the truth and the law?

Episode No. 2

On April 15, 2014 the New York Supreme Court, Appellate Division Third Judicial Department, has issued a press release announcing appointment of three new justices to the court.

In the press-release, there were short biographies and description of careers of the three new justices.

Provided below is excerpt from the press-release about the new Justice Christine Clark:

The press-release says that "Justice Clark began her legal career in 1995 with the law firm of Dreyer Boyajian LLP, first as a law clerk"...

Now wait a second.

New York State attorney directory shows that Justice Clark was admitted to practice law in 1997.

Dreyer Boyajian LLP where Judge Clark "started her legal career" as a "law clerk" before admission to the bar, was a private law firm.  New York law does not allow practice of law in private law firms without admission to the bar, such privileges are allowed only to public entities such as public defenders' offices, district attorney's offices etc.

Judiciary Law 90(2) provides as to suspended or disbarred attorneys:

"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 counselor-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".

So, according to Judiciary Law 90(2), working as a clerk, and especially as a law clerk "of another" constitutes unauthorized practice of law(UPL) which was punishable in New York in 1995 as a misdemeanor, a criminal offense.

Now that we established that working as a "clerk of another" is considered in New York unauthorized practice of law, here is the question.  Was Justice Clark engaged in unauthorized practice of law in 1995 when she worked as a "law clerk" for a private law firm before her admission to the bar in 1997?

Problems with the press-release as to Justice Clark do not end there.

The press release goes on describing that in 1995, 2 years before her admission to the bar, Justice Clark worked as "a law clerk" in a private law firm, and "then becoming an Associate upon receiving her juris doctorate".

No let's go back to Episode 1.   Judge Lippman also considered, and erroneously so, that obtaining a juris doctorate, which is a degree with which people graduate from law school, is an equivalent of becoming a lawyer.  Judge Lippman, of all people, should know better.

Yet, apparently, Appellate Division 3rd Department harbors the same misapprehension and considers people who have juris doctorate to be qualified to practice law as "Associates", or associate attorneys, in private law firms, like Justice Clark did.

To do justice to Justice Clark, no pun intended, I do not know whether it is just a horrible press-release or whether Justice Clark started to practice law as an associate in a private law firm on receiving her Juris Doctorate but before admission to the bar in 1997. 

Yet, it is not what I do or do not know that counts, but what the appellate court announces to the world in its press release.  This court sets the law for 28 counties.  This court licenses attorneys.  At the very minimum it should know the law pertaining, once again, no pun intended, to the practice of law, and not announce such legal blunders in its press-releases.

Now, suspended and disbarred attorneys have Juris Doctorates, court do not strip suspended and disbarred attorneys of their J.D.s when the court takes their license.

Did the Appellate Division 3rd Department, by its press-release of April 15, 2014, now allow Juris Doctorate holders, whether they are or are not licensed to practice law, to practice law because it considered it proper to announce that Justice Clark started to practice as an associate attorney in a private law firm simply "on receiving her juris doctorate"?

Does the Appellate Division 3rd Department proof-read its own press releases?

Does the Appellate Division 3rd Department, which is one of 4 licensing agencies for attorneys in the state of New York, know what it is doing?

Is there a double standard where if you become a judge of the Appellate Division 3rd Department, your unauthorized practice of law is viewed with pride, is not considered a crime or even an ethical violation and is proudly announced in press-releases of the court, and if you are a suspended or disbarred attorney and you dare to work as an associate, you will be charged with a felony and contempt of court, and if you work as a clerk, much less a "law clerk", as Justice Clark did before admission to the bar, a suspended or disbarred attorney will definitely be charged with contempt of court and unauthorized practice of law?

Are we talking about the same practice of law?

Are there different definitions of what constitutes practice of law in New York for people of different social statuses?

Judging by Episode 1 and 2 above, it sure seems like that to me.

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