"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.

Monday, March 9, 2015

North Carolina State Board of Dental Examiners v. Federal Trade Commission - a writing on the wall for the regulation of the legal profession?

On February 25, 2015 the U.S. Supreme Court, in a majority opinion, upheld the ruling of the Federal Trade Commission that members of the State Board of Dental Examiners, who are practicing dentists and thus market participants in the market which they are regulating, are not entitled to immunity for their actions stifling competition in the market.

This decision is, in my opinion, a writing on the wall for the regulation of the legal profession the way it exists today in the United States.

As an example, in the State of New York attorney discipline and prosecutions for unauthorized practice of law, is allowed to be handled by market participants, practicing attorneys, who very obviously have a vested financial interest to eliminate competition, especially as the number of paying clients dwindles.

As far as I know from research of disciplinary proceedings against attorneys in other states, it is not much different.  It is practicing attorneys who target other practicing attorneys, their competitors, for discipline.

At least in New York where I researched the subject exhaustively, the "attorney grievance committees" or "professional conduct committees" existing in the 4 appellate division are not explicitly authorized by statute, and are thus within the prohibition as to anti-competitive practices as set in the decision of the U.S. Supreme Court of February 25, 2015 North Carolina State Board of Dental Examiners v. Federal Trade Commission.

What is authorized by statute, Judiciary Law 90(1)(c) are the so-called "character and fitness committees" that appellate divisions are authorized to appoint only and specifically to "investigate the character and fitness of applicants for admission to the bar".

As to investigating and prosecuting of attorney misconduct, Judiciary Law 90(7) authorizes this only for two categories of prosecutors:

(1) "any district attorney within the department";
(2) an "attorney and counsellor-at-law" appointed by the court specifically for a particular investigation or prosecution, since Judiciary Law 90(7) clearly states that the court may fix compensation for such attorneys only "during or upon termination of the investigation or proceedings".

Moreover, since compensation of such an attorney or attorneys prosecuting a disciplinary case against an attorney must be charged against a county, as provided by statute, Judiciary Law 90(7), it is very questionable that such prosecutors are representatives of a state, rather than of a county, and it is very questionable that such prosecutors would be entitled to any kind of "sovereign immunity" for their actions.

By the way, expenses of the office and auxiliary personnel for the "character and fitness committees" to be appointed for verification of fitness of candidates for admission to the bar, are also passed to either the City of New York (in the Appellate Division 1st Department), Judiciary Law 90(1)(f), or to counties (in the Appellate Division 2nd Department) pursuant to Judiciary Law 90(1)(g).

As to the attorney grievance committees of the 3rd and 4th Departments which investigated and prosecuted me (the 4th Department committee continues at this time), Judiciary Law 90 does not provide for an office or support staff for even "character and fitness" committees for admission to the bar, instead providing only for per diems.

Apparently, a taxpayer investigation is in order as to how offices investigating and prosecuting attorney misconduct are funded in New York, because they certainly are not funded in accordance with the statute, Judiciary Law 90.

Instead of following Judiciary Law 90(7), appellate divisions appoint, instead of prosecutors for a particular investigation or prosecution, "committees", investigators and attorneys for such committees, and funds for offices for such committees, none of which expense is authorized by statute, and fix compensation for attorneys for such "committees" before investigation or prosecution, as a set yearly salary, which is similarly not authorized by statute.

Moreover, the "committees" employ their own investigators and several attorneys, none of which is authorized by statute either.

As a New York taxpayer, I am not at all pleased with such a waste of funds.

As an attorney who is prosecuted by an illegal body consisting of market participants I am not pleased either, and there appears to be a new avenue of proving that attorney disciplinary proceedings in New York are, on top of being a perfect tool of political oppression of attorneys doing their jobs and criticizing judicial misconduct and misconduct of politically connected attorneys, attorneys working for the government, or of any government officials, this is also a perfect tool to eliminate competition - and, as of now, members of such Committees are no longer covered by immunity if there is no political accountability for their actions by the State.

Since the very existence of the "professional conduct" or "grievance" Committees that investigate and prosecute attorney misconduct is not specifically authorized by statute, at least, in the State of New York, and since all such "committees" consist mostly attorneys, application of the North Carolina Board of Dental Examiners v. Federal Trade Commission to attorney disciplinary proceedings is obvious.

Nor is there any supervision of what the committees are doing by the State.  And that is exactly why the U.S. Supreme Court ruled against the Board of Dental Examiners in North Carolina, indicating that such board members are not entitled to the so-called "state-action antitrust immunity".

The bottomline is - members of the attorney disciplinary committees are now, likely, not covered by antitrust immunity either and may be sued for their prosecutions or, rather, persecutions meant to eliminate competition.

I wonder how many attorneys will now be willing to "serve" on these committees.

It is actually a writing on the wall for attorney licensing, the way it exists nowadays.  It is only a matter of time when the axe will fall and the whole scheme of attorney licensing will be pronounced unconstitutional and unlawful under federal laws.

No wonder state bar associations filed amicus briefs in this case in droves - they felt the doom is coming.

And it will come, as it should.

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