"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, April 28, 2015

People can decide what kind of legal services they need - and from whom - for themselves

I write a lot on this blog about the monopoly of the American legal profession on representation in court.

The establishment of the American legal profession insists on preserving that monopoly even when over 80% of consumers cannot afford services of licensed attorneys.  

While I live in the U.S. for 16 years, I was born and raised in Russia, and I follow events in my native country, including developing trends in its legal profession.  And what I see there is, unfortunately, attempting to borrow from the U.S. what the U.S. needs to shed, after several decades of a botched experiment - regulation of the legal profession and monopoly for provision of legal services and court representation.

In Russia, anybody can represent anybody else in civil court, even though representation by an attorney is required in criminal cases.  Yet, in Russia there is no attorney licensing, there is only an educational requirement, as far as I know.

While Russian Ministry of Justice announced at the end of March that it is going to introduce, as a point of "innovation", some requirements to the standards of various legal services provided, Russian lawyers give mixed signals as to what they want and why they want it.

On the one hand, the Russian legal community is clearly interested in establishing monopoly for legal services, and, as in the U.S., is claiming that the reason for establishing it is in order to help the consumers obtain only competent legal services.

At the same time, the Russian legal profession pays the lip service to the fact that, with 15 mln civil cases pending in court and only 75,000 lawyers in the country of over 146 mln people, it will be an injustice to the people to deprive them of any representation in court that they want by people that they have chosen and trust, even if they are not trained attorneys, when the trained attorneys do not have the physical ability to handle all the cases.

Of course, consumers of legal services in the U.S., where monopoly for both court representation and for any legal services at all, including real estate transactions, certifications of copies of documents drafting of wills, deeds and contracts are allowed to be done only by licensed attorneys, know that such monopoly makes legal services unaffordable and more scarse, but does not provide better services.

While in the U.S. there is no shortage of attorneys, the problem still remains that the legal education is so expensive that attorneys use their monopoly to fix their legal fees at a high rate to justify their legal education.  I have seen many statements by attorneys with claims to their bar associations not doing enough to protect attorneys from people who are practicing law without a license and thus taking their legal fees and precluding them from justifying their expensive legal education.  I have read opposition to deregulation of the legal profession and abolishing attorney licensing, on the same grounds, that the expensive legal education will then be in vain and the investment will not be recouped.  

Attorneys who make such claims completely forget that attorney licensing is in place for the declared purpose not to protect attorneys' investment into the expensive legal education by restricting entry into the market of new providers and thus allow the remaining providers to keep high (and inflated) prices which the providers agree will be dropped if the market is deregulated.  

Attorney licensing is declared to be in place to actually protect the rights of consumers to a competent representation.  That is declared by the American attorneys (when they do not snap against advocates for deregulation and reveal their true feelings and thoughts on the subject, protecting their own high fees and investment into expensive education).  That is now also declared by the establishment of the legal profession in Russia.

Yet, of course, such declarations are smoke screens designed to camouflage private interests of service providers who are hurting because of shrinking client base and want to eliminate competing providers of legal services.

It appears that Russia is moving several decades behind the global trends which are towards deregulation of the legal profession.

The U.K. started the deregulation in 2003.

In the U.S., the State of Arizona has been lax in prosecuting unauthorized practice of law, the State of New York itself has introduced in 2012 a requirement to law student to provide 50 hours of pro bono services as a pre-requisite of licensing, half-measures that show that the number of attorneys existing at this time, and at the prices they fix for their services, is unable to meet the demand of the market for affordable legal services.

In 2014, New York State also introduced the so-called "court navigators" to "help" indigent consumers "navigate" the legal system - while not providing legal services.

Those measures are, of course, half-measures that will be just a drop in the bucket and will not relieve the "justice gap" acknowledged by New York Chief Judge Lippman - even though the justice gap is created by regulation and the only thing that is needed to relieve that justice gap is to deregulate the legal profession, even if experimentally, for a certain period of time.

Various attacks on deregulation of the legal profession in the U.S. have already started.

A book advocating deregulation of the legal profession was published in 2011.

An individual without any legal education has recently challenged the requirement of the state that only individuals who graduated from an ABA-approved law school can sit for the bar examination.   
On February 25, 2015 the U.S. Supreme Court has made a decision in a case regarding regulation of dentists stripping dentists who regulate dentists of their immunity based on their anti-competitive activities, see my blogs commenting the decision before it was made, and after it was made.

Judging by the ardor with which bar associations, and not consumer groups, from different state attempted to prevent that decision, and I have read the concerted "friend of the court" brief of bar associations of several states, the establishment of the American legal profession sees the writing on the wall, that its days of monopoly are counted. 

From the point of anti-competitive activities, I recently won an interim court decision for a client in a civil rights case where the court ruled that my client can proceed with a civil rights case for actions of a disciplinary committee continuing to investigate and prosecute him long after they took his license.

I also recently asked the Federal Trade Commission to apply their recent victory in the U.S. Supreme Court the dentists' case to address attorney regulation in the State of New York for what it is - regulating of market by influential market providers for their personal gain of influential market providers, in violation of consumer's rights and federal anti-trust laws.

It is clear that the monopoly for legal services should die, and as quick a death as possible, to prevent further harm to the consumers.

I hope that the FTC starts the process of deregulation by applying the decision in the dentists' case to the legal profession.

I hope that the Russian legal establishment will not get their upper hand in claiming their monopoly.  No matter in which country and in which profession monopolies are imposed, they hurt the consumers in making services more scarce, less versatile, more costly and do nothing to ensure competence or quality of those services.

And, such monopolies take consumers for idiots and do not allow them their own free choice of who to choose as a provider of services, with their own verification of the person's abilities to provide those services and their trustworthiness.

Competent people who raise children, keep jobs, pay taxes and vote do not need such a paternalistic approach, they can decide for themselves what services from what providers they need.

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