"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.

Thursday, May 7, 2015

General licensing of law practice is a sham

I wrote a lot on this blog that licensing of the "practice of law" is a sham, from many points of view.

First of all, it hurts the consumers and protects the markets (and high prices) in the markets for influential attorneys only, because attorney discipline are only targeted against independent solo and small firm attorneys, predominantly civil rights and criminal defense attorneys.

Over 80% of consumers cannot afford to hire an attorney across the country, and for the legal profession to claim that licensing protects quality of services for the consumers is claiming that 80% of the poorest consumers must pay for the protection of quality of legal services for the remaining 20% of consumers of legal services who can afford to protect themselves.

Moreover, when an attorney is licensed to practice law in the State of New York, he or she is licensed to practice in all possible specialties.

As practice shows, that alone can be detrimental for the consumer, because the consumer relies upon the license as a guarantee of the lawyer's competence while, let's say, criminal law is such a specific area that without specific training in criminal law and especially in criminal procedure (not a required course in law schools), relying on such a presumption of competence of an attorney is foolish.

In my disciplinary case, I became acutely aware how incompetent an attorney who purports to practice criminal law can be.

Mary Gasparini, my disciplinary prosecutor (civil prosecutor) purported to practice criminal law while obviously having no clue about such important issues as:

  1. how a criminal case can be brought;
  2. what initiating documents for a criminal case are valid;
  3. how documents initiating a criminal case must be served;
  4. in which courts certain criminal cases may or may not be brought;
  5. what constitute territorial jurisdiction of New York state courts and how it is determined;
  6. what is presumption of innocence;
  7. what is the constitutional right to remain silent;
  8. what is the requirement for non-hearsay support for criminal charges;
  9. what is the burden of proof in a criminal case;
  10. who has the burden of proof in a criminal case and how that proof must be presented;
  11. what are the elements of the offense charged and how those elements must be proven;
  12. what are the rules of disqualification of a public prosecutor in a criminal case
In other words, Ms. Gasparini has no clue as to A-to-Z of criminal procedure, but boldly proceeds with trying to prosecute a criminal case.

And, I am sure, there are a lot of such Mary Gasparinis out there who boldly proceed to ruin people's lives while having no clue about the applicable law, but their law license serves creates in consumers of their services a false presumption of competence of such attorneys.

It will be lot more honest and will protect consumers of legal services more if licensing of the practice of law is scrapped, the and if people are finally given a free right to choose providers of legal services from who they trust by their own criteria, including by reputation the providers in cases they already handled, whether such providers have a formal legal education or not.

I know a lot of people who did not even finish high school, but who know criminal procedure better far than Mary Gasparini.

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