"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, February 17, 2015

New York State of the Judiciary Address 2015 - using slave labor of under-educated law students to bridge "the justice gap" created by attorney regulation. Can anything be more hypocritical than these "solutions"?

Here is a scenario for you.

You have a complex legal problem.

You have the money for a lawyer/advisor to help you with that problem.

With that problem and that money you are looking for an attorney to help you with the problem.

And you know that attorney licensing - allegedly - protects you.

And that only licensed attorneys may represent you.

And that an attorney can only be licensed in New York if:

  1. The attorney, before becoming an attorney, SUCCESSFULLY - graduates from an ABA-accredited law school;
  2. Then and only then - on SUCCESSFUL graduation out of law school - will the attorney be allowed to even sit for the bar.

Now look at the "solution" to the "justice gap" in New York where over 80% of New Yorkers (4 out of every 5, or nearly 2 MILLION litigants every year) cannot afford counsel.

So, now your lawyers in the "PRO BONO Scholars Program" will have not 3 years of law school education (remember - the reason for attorney license was to guarantee to customers uniformity and quality of legal education, among other things?).

Such "scholars" will have 2.5 years of law school education.

So, the poor are entitled to representation by under-educated law students who did not yet finish law school.

Now, please, tell me, what makes such law students "scholars"?

The law on internships is clear - the internship can only be an internship if the person who is in the internship is TAUGHT something.

These under-educated law students are not thrown in to be TAUGHT anything - they are thrown in - remember why? - TO BRIDGE THE JUSTICE GAP, simply as slave labor.

Everybody knows how expensive legal education is nowadays.

Nothing is said here that the "PRO BONO" students will be forgiven their last-semester law school tuition?

I doubt law schools, currently struggling already from decreasing enrollments, will agree to that.

So, most likely, the students are going to still have to pay their last-semester tuition while working PRO BONO - for a semester!

And this proposal of slavery is supposed to have this expected effect:

I remember a similar incentive in the Soviet Union - to gave to the best workers a red banner, passing from worker to worker as a great honor.

Well, unless Lippman omitted some significant details in the "Pro Bono Scholars Program", I don't see the incentive to go their for law students, especially because the Pro Bono Scholars will not be allowed into the areas where they will learn skills that will allow them in the future access to a customer base who can pay for their services.

The biggest incentive would have been here - loan forgiveness.  Complete loan forgiveness if a law student, on graduation - ON TIME, after 3 years of school - agrees to donate a certain amount of hours to people in need of legal services.

Apparently, New York does not have the budget for that.

And slave labor was never effective, even when it is portrayed as "the honorable service" of "our best and brightest".

Somehow I do not see Jonathan Lippman's children, both attorneys, one Harvard-educated and the other Cornell-educated, to rush into pro bono representation of under-served individuals.

That would have been one big PR campaign for Lippman.  But - alas.

And in the same address Lippman was pushing for even higher pay for judges - which at this time already is 3-4 TIMES higher than any salaries that "our best and brightest" can earn if they decide to become "full-time advocates for those in need".

Again, populism and hypocrisy.  As usual.

The next brilliant solution of the "justice gap" - the whole of 20 scholars for the "poverty solution" project will go after graduation to "legal service providers".  20 new and inexperienced attorneys to bridge the gap of 2 million litigants who cannot afford legal representation.  

Lippman really had to announce this "solution" in his "State of the Judiciary" address as a big achievement.

I wonder how many times less those 20 scholars will cost the state of New York than maintaining the lavish suites for judges of the NYS Court of Appeals and other courts, and take care of carvings, furniture and paintings in those courtrooms.

Just out of curiousity.

What Judge Lippman did not really concentrate on is what kind of QUALITY of legal representation his proposed "solutions" give to people.  

After all, attorney licensing is heralded as necessary to protect consumers (even those 4 out of 5 who, because of attorney licensing, and associated higher prices of legal services, cannot afford the services of those same licensed attorneys), to ensure quality of legal representation.

First of all, who are those mysterious "we"?

Was Lippman ever evicted to speak of "hard-earned experience"?

And don't "we" know from "hard-earned" experienced that what a person needs in the courtroom is not the presence of a "lawyer", but the presence of a professional adviser (unfortunately, due to criminal laws against unauthorized practice of law those advisers at this time can be only licensed attorneys, without regard to their actual experience or skills) who knows what he or she is doing.

Lippman is bridging the gap with either students who did not yet graduate from law school, or by students who just graduated and do not have any experience.

To proclaim such "solutions' as "bridging the gap" and helping indigent people find proper legal representation is a SICK JOKE that can only be perceived with applause by spoiled rich people, such as New York State judges are (as compared to the average income of New Yorkers, County and Supreme Court judges are rich).

I have a funny feeling that these "solutions" to the "justice gap problems" is nothing other than procuring funding to some "friendly organizations".

With this in mind, I will be investigating who stands behind the "approvied" "private-public partners" in this "Poverty Justice Solutions" program, the partners announced by Lippman in the same address:

Lippman is retiring this year.

His friend Silver is under criminal prosecution for corruption and, probably, cannot help any more.

So - there may be a real need to start building bridges for the future jobs-after-retirement for Lippman.  And what would work more nicely than a chunk of change to a "certified" "public-private partner", where nobody can really trace whose nephew, friend, colleague, brother, sister-in-law, etc. of a founder of that "private-public partner" will employ the retired judge in the future.

Do I believe in people who are work for public good without hope of a monetary - or any other - reward?

Of course, I do.

I just do not believe in sincerity of Lippman, or that Lippman will choose such people or firms for "public-private partnerships".

The next "solution" by Lippman is - without deregulation of attorneys - expansion of the now-pilot program of PRO BONO non-lawyer "court navigators".

I have not heard anything about removing from the books the recently elevated to a felony level UPL (unauthorized practice of law) Penal Law, and what Lippman proposes "court navigators" are doing would easily result in UPL charges against, let's say, a suspended or disbarred attorney.

Filling out forms, advising as to deadlines imposed by courts etc. etc. etc.

Why not deregulate the legal profession already?  How does Lippman suppose he will get those "court advocates" in needed numbers if they are required to be PRO BONO - what is the incentive for MILLIONS of people, in our state of economy, with majority of Americans living from paycheck to paycheck, to become PRO BONO "court navigators"?

Of course, the New York State Bar association will see "great progress" in "court navigators", as long as they do not get a cut of the pie and are not allowed to (1) charge for their services, or (2) represent people in lucrative areas of law - divorces, criminal law.

It is "ok" for the NYSBA to have "court navigators" "assist" indigent litigants in cases housing and consumer debt cases.

In fact, both housing and consumer debt cases require skills and diligence.

In consumer debt cases most cases are resolved by default or by waiver of the main issue in such cases - standing and fraudulent assignments of debts.

To analyze documentation and properly present it to the courts, one needs training, and I DO NOT insist that there should be a requirement for a licensed attorney representation in such cases.

I saw enough of licensed attorneys who did not have a clue what they are doing in such cases.

Once again - if the "court navigators" are allowed in two types of cases, providing services that can be charged as UPL:

(1) why allow to do that ONLY pro bono;
(2) why allow to do that only in two types of cases - housing and consumer debt?
(3) why restrict what "court advocates" can do?

My suggestion to our illustrious and "spectacular", "absolutely the best" judiciary.

Stop acting like you do not see the solution that is right under your nose.  

Stop bridging the very real justice gap by stupid tricks that only your spoiled rich associates can applaud to.  

Stop introducing half-measures and non-measures.

Just deregulate the legal profession - and the justice gap will instantly shrink, if not disappear.  Soon.

But I doubt that the judiciary will be promoting deregulation, as the judiciary is interested in (1) having control over lawyers;  (2) having control over what lawyers say about judges; (3) secure well-paid positions after retirement in law firms.

And, if the judiciary pushes for deregulation, who will wine and dine them?  Who will donate to their election campaign?  Who will bring them to resorts for "educational" seminars?  Who will employ their relatives and friends?

The push for deregulation and for really bridging the justice gap will not come from the judiciary.

It should come from the People of the State of New York, through our own legislative initiatives.

Let's come together and do it.

No comments:

Post a Comment