"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.

Tuesday, October 14, 2014

Is practice of law legitimized slavery in violation of the 13th Amendment? In New York, courts often make it so

Under the common law, legal representation is provision of services.

Provision of services can be done under an oral contract, and performance of the attorney in reliance on a promise to pay constitutes a binding contract supported by consideration.  That is a hypothetical for a 1st year law student.

And, when the promise to pay is broken, and the client refuses to pay, for the past or future services, the contractual relationship is broken, too, and the service provider does not have to provide the service any more.

Yet, in New York at least, it is not that easy.

In New York, the attorney is deemed a "fiduciary" (trusted person), and, if the attorney is not paid, he becomes a highly educated and qualified slave (in court proceedings), even though slavery in this country has been abolished over a century ago.

Courts in New York repeatedly held that failure to pay an attorney is not a good reason for the attorney to be able to discontinue representation and be allowed to withdraw from a pending court case.

An attorney may be ordered by the court to conduct an entire trial for free, in full knowledge that the client will never pay.  It happened to me, and not once.

Are such court orders a violation of the 13th Amendment?  Of course, they are.

Is there a legal remedy to correct the problem?  No, there isn't, because judges are covered by absolute judicial immunity and the U.S. Constitution (which every judge is sworn to uphold as a pre-requisite of holding the judicial office), and 13th Amendment is unenforceable against the judiciary.  Good luck raising this issue on appeal.

Until this system is changed, it is unreasonable for the public to expect that prices of legal services and initial retainers will go down and that affordable payment plans for provision of legal services will become popular any time soon.

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