"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, February 27, 2015

Jailhouse lawyers and the hypocrisy of attorney licensing as a consumer protection technique

The State of New York punishes practice of law by individuals who are not licensed attorneys as a felony since 2013 and has been punishing it as a misdemeanor for years prior.

Licensing of attorneys is declared to be done by the government for protection of the public.

Yet, the U.S. Supreme Court, as far back as in 1969, and that is 46 years ago, has struck down state regulation punishing a person for providing legal assistance to other prisoners.

The Supreme Court has stated in Johnson v. Avery, 393 U.S. 483 (1969) the following:

The above U.S. Supreme Court case should be read broadly to ensure the intended effect of the 1st, 5th and 14th Amendment to the U.S. Constitution, to ensure constitutionally guaranteed true access to court for poor and poorly educated litigants vindicating their constitutional rights.

When read broadly, we have a U.S. Supreme Court case, a mandatory precedent for the states, that provides that in the absence of "some provision" by the states for a "reasonable alternative" to assist "illiterate or poorly educated" individuals to prepare legal documents pertaining to their fundamental constitutional rights, the state may not validly enforce a regulation which absolutely bars provision of legal services to such indigent litigants by non-attorneys.

Yet, we have not only inmates who continue to struggle, without legal representation, and without funds to pay to prepare legal documents for post-conviction relief, but we also have criminal defendants who, according to the State of the Judiciary 2015 address in New York, are habitually denied counsel at arraignment, or provided substandard representation by public defenders carrying unmanageable case loads.

We also have people being evicted, losing custody of their children, being foreclosed on their homes, being sued for consumer debt, and having no access to a lawyer because these litigants are poor.

The only thing that bars such litigants from representation in court by a knowledgeable, but unlicensed representative, for free or for a reduced cost, is criminal statutes for unauthorized practice of law, statutes that should be held unconstitutional where the state does not provide a "reasonable alternative" to a private attorney to assist the illiterate, poorly educated and poor litigants in their needs.

The State of New York does not have such a reasonable alternative.

Therefore, attorney licensing in New York, declared to be in place to protect the consumers, does not protect the consumers, is in fact hurting the consumers, is unconstitutional as blocking poor litigants' access to courts and preventing them to have trusted and knowledgeable, if not licensed, court representatives of their own choice.  

Such attorney licensing system clearly exist only as an anti-competitive measure to protect the market and high prices that the majority of the public cannot afford, for politically connected attorneys.  

And, therefore, attorney licensing should be abolished as not providing the declared benefit to the consumers and  hurting the consumers.  

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