"Do you think you would like living in a country where the ruler or his minions could declare what the law was, change it at will, and decide whether someone was guilty of a violation?
Certainly not. People risk their lives to escape from such places, North Korea and Cuba, for instance."
This is how George Leef, a J.D.-holding contributor of Forbes.com started his new blog post about delegation of powers pertaining to the U.S. Constitution.
My experience as an attorney shows though that courts in the United States, both on state and federal levels, have become the powers that do exactly what people are running from:
(1) declare what the law is;
(2) change it at will; and
(3) decide that you are guilty of the violation - all in one shot, without any notice or opportunity to be heard, without any jury trial
The way courts manipulate the so-called rules of frivolous conduct against attorneys who criticize the judiciary in order to eliminate livelihood of such attorneys is one example as to how that occurs:
(1) the court sets a rule which is grossly vague and overbroad;
(2) the court then applies it in a grossly arbitrary and capricious manner, failing to apply it where clear fraud is committed by attorneys who are connected to the government by blood or marriage, work or friendship/association and instead applying it to lawful actions of attorneys who criticize judicial and other official misconduct;
(3) sanctions for frivolous conduct are considered "just financial sanctions" and often an attorney or party is not even given a hearing before sanctions are imposed;
(4) yet, sanctions can then be the only basis of the disciplinary proceedings (as it happened in my case) in order to try to deprive an attorney-critic of her reputation and livelihood, while attorneys associated with the government can go on committing open fraud and nobody will touch them.
If the public thinks that it is "only" about attorneys, and, since practicing attorneys are not respected by the public and are the constant subject of "lawyer jokes", the plight of even honest attorneys who try to zealously represent their clients and correct the system does not seem to interest the public.
Yet, when attorney independence, independence of a knowledgeable, eloquent and fearless advocate for the public, is removed, public access to court and the right to fair trial is essentially removed.
And that puts us on the same board as tyrannies which we claim we are not.
Moreover, attorney disciplinary cases are only an example.
The courts have long usurped executive (licensing) power as pertain to licensing attorneys, the court's most knowledgeable, eloquent, powerful and persuasive critics.
Yet, increasingly, the courts continue to usurp legislative power that is, in all states and on the federal level, belongs only to elected legislative representatives, not judicial representatives.
The legislatures fail to address this separation of power problem for a very simple reason - state and federal Legislatures are full of lawyers whose reputation and livelihood, when their legislative terms in office ends, is in the hands of the judiciary.
A lot of high-ranking executive officers are also lawyers, whose reputation and livelihood at the end of their appointment to executive offices, is also in the hands of the judiciary.
There goes independence of both the legislative and executive powers, on state and federal levels.
There go the famous "checks and balances" between branches of the government.
There goes the rule of law, and there goes the United States Constitution which every single public official in the United States and at the state level are sworn to uphold (often knowing that he or she will start break that oath, with impunity, the moment he or she pronounces it).
It is for the reason that regulation of attorneys by the judiciary is ruining the American democracy that I strongly advocate to take attorney regulation out of the hands of the judiciary.
THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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.
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