"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, May 29, 2015

The new New York State one-size-fits-all bar exam - "rearranging the deck chairs on the Titanic" while discrediting the idea of regulation of the legal profession

This month, New York announced that, starting from July of 2016 it will switch to a multi-state bar exam, departing from its traditional two-part two-day exam checking both the federal and the New York State law.

The decision is paraded as a measure to allow more mobility to young attorneys who increasingly struggle to find employment on graduation.

Some professors explain that phenomenon by the fact that there is a decreased demand for legal services.

Being in that market, I can say that it is simply not true.

The market for legal services not only did not decrease, but is growing - it is the attorneys who try to justify their costly legal education by high hourly rates who are pricing themselves out of the market.

In fact, the same Chief Judge Lippman who changed the rules regarding the bar exam to allow New York attorneys to go work in Nebraska or Missouri, states who also embraced the multi-state bar exam, also repeatedly claims to the public that there is a crisis in the New York justice system where over 80% of litigants simply cannot afford an attorney.

If the market is deregulated and attorneys will have competition from non-attorneys, prices will instantly settle themselves, and those 80% of people who at this time have no access to affordable legal services, will get such access.

To claim that attorney licensing protects the 80% of the public who must go without the needed legal services because they cannot afford the high prices in a tightly regulated market, is to shed crocodile tears, and especially with the way attorneys are regulated:

  • when the most powerful attorneys (prosecutors, judges, law clerks, the New York State Attorney General and his over 640 assistants, all attorneys working for the government, attorneys related to attorneys working for the government) are beyond the reach of discipline, it is not the consumers that attorney regulation is protecting;
  • when attorneys targeted for discipline are attorneys blowing the whistle against judicial corruption and corruption of other public officials and politically connected attorneys, the public and consumers of legal services are not protected;
  • when the super-majority on the attorney disciplinary committees are private market participants interested to preserve their high prices, restrict access to the market to preserve those high prices, and are interested to eliminate competition and especially competition from independent attorneys, and when representatives of the cross-section of the public are not allowed representation on those committees to the point of casing a decisive vote as to what they consider good or not good for their own protection, that is not protection of the public, it is a fake designed to preserve the status quo for the legal elite while pretending that the self-serving actions of that legal elite is somehow done for the protection of the public and not to enrich politically connected attorneys, the friends and family members;
  • when the public is not allowed to be present at attorney disciplinary proceedings, even if the attorney subject to those proceedings asks for it repeatedly, that is not protection of the public.

The change in the New York State bar exam puts yet another dent into the claim that attorney licensing in New York (and elsewhere) is designed to protect consumers from incompetent and/or unethical attorneys.

Due to well reported difficulty to get employment on graduation, more and more potential students skip law school and pursue other graduate education.

While enrollments in law schools dwindle, law schools lower their standards for admission to keep financially afloat.

Thus, the caliber of students entering law schools and graduating from them, dwindles, too.

In order to allow that lower caliber of students to pass the New York State bar which can prove too rigorous for them, New York eliminates the toughest part of the exam - the New York State part - and allows students to take a one-size-fits-all exam that will be somehow valid in:

  1. Alabama, 
  2. Alaska, 
  3. Arizona, 
  4. Colorado, 
  5. Idaho, 
  6. Kansas, 
  7. Minnesota, 
  8. Missouri, 
  9. Montana, 
  10. Nebraska, 
  11. New Hampshire, 
  12. North Dakota, 
  13. Utah, 
  14. Washington, and 
  15. Wyoming

I doubt that employment situation for young attorneys right out of law school is much different from New York, so to direct New York attorneys to get employment in Kansas while to direct Kansas attorneys to seek employment in New York sure aids attorney's mobility (which is good), but does not change problems in the market of legal services, prompting a reporter from the Fortune magazine to call the arrangement "rearranging the deck chairs on the Titanic".

It is even more alarming that Chief Judge of the state of New York Jonathan Lippman indicated that what New York does other states follow, and that there may be a "domino effect" amongst the states to change their bar exams to the "one size fits all" exams.

There is the good and the bad in that.

The good - that same acclaimed mobility, an attorney who sat for one bar exam (which is a gruelling experience enough, as I can attest, having passed the "old" New York State bar exam in the first sitting, while English is not my native language), does not have to be the slave of a certain state, chained to the State of New York (or Kansas, or Missouri, for that matter).

On the other hand, I do not know how complex is the law in other states, but in New York, passing a bar exam without being tested in knowledge of, specifically, New York Civil Practice Law and Rules (for civil litigation), New York Family Court Act (for proceedings in child support, paternity, custody and visitation, child abuse and neglect, domestic violence), New York Penal Law and Criminal Procedure Law is the same as not passing the bar exam at all.

The "short online multiple choice test" of New York State law is a completely inadequate measure to test competency in New York State law as a justification of attorney regulation in the State of New York.  First, identity of test takers in online tests is unverifiable, second, the New York State portion should be the largest and most vigorously tested, to prepare for practice in New York State courts, and not instead treated in a perfunctory measure, to report that the test takers took SOME tests in New York State law - online.

If online testing is so adequate - why not conduct the ENTIRE bar exam online?

Yet, the security measures in New York for bar testers are designed to ensure that one cannot take that test for another - when I was taking that test in 2008, I had an identifying bracelet around my wrist for two days of the exam, my ID with me at all times, and my computer (I was taking the test on the laptop) was blocked from the Internet completely.

So - if New York State now allows ONLINE "short tests" of the New York State law, while not changing security measures for the rest of the bar exam, it only shows that New York DOES NOT CARE who takes the New York State portion of the bar exam - as long as it is passed.

Yet, it will be the CPLR and the Family Court Act and the Penal Law and the Criminal Procedure Law, and Real Property Actions and Proceedings Law and Surrogate's Court Procedure Act, all state statutes, that will control court proceedings where a young attorney will engage.

Passing online "short" multiple choice exam on New York state law will not prepare bar exam takers for practice in New York State courts.

Moreover, since it will be an online test, and a "short" multiple choice exam, preparation for that portion of the bar exam will not be considered important - with resulting lack of knowledge by the test takers.

Passing a one-size-fits-all exam in its simplified format, thus, will not provide to the public a proper assurance that attorneys who passed the test are prepared to practice law specifically in the courts of the State of New York, because in the courts of the State of New York, an attorney needs to know New York law, and not simply be able to be trained for a brain-dump of a one-size-fits-all bar exam.

 Which means to me that shifting to the one-size-fits-all exam in states with vast differences in their statutes and procedures, both in civil and criminal litigation, at the trial and appellate levels, discredits the whole idea of attorney licensing, because neither graduation from the "ABA-certified law school", nor passing of the "one-size-fits-all" bar exam provide assurance to the public that a licensed attorney is any more competent than an unlicensed individual who has diligently read the applicable law and is ready, willing and able to represent his neighbor or friend in court.

In fact, there is more assurance of competence of the neighbor who has actually studied the applicable state law than an attorney who has a pulse and a license based on passing a simplified one-size-fits-all bar exam that did not test the attorney in the knowledge of state law, but the license provides to the public a false assurance of competence.

To continue with attorney licensing under such circumstances is to continue to deceive the public with false assurances of competence where no competence can be found.


That said, what remains is a huge issue of equal protection concerning those attorneys who had the misfortune of having passed the more rigorous "old" bar exam, with the state component, but that is not recognized by other states.

Will the State of New York try to bridge that inequality gap by entering agreements with other states that attorneys who received their licenses before the new bar exam is going to be introduced in July of 2016, will not be penalized for taking the bar exam "too early" to be automatically recognized by other states?

Does it make any sense for this year's law school graduates to take July 2015 or February 2016 bar exam since it requires more efforts, but will provide less rights to the successful takers?

Does it make sense to wait until July 2016 and work somewhere in a non-attorney position for a year, so that the gruelling efforts in bar preparation will not be wasted?

Questions, questions, questions.

All of those questions can be resolved in one go if this Gordian knot of the market of legal services regulated to the brink of perishing, is simply cut and the market is deregulated.

Then, prices will even out, competence will become a point of proof for each attorney (or non-attorney) and a point of responsible background research by the consumers before they come to a certain provider of legal services before hiring him or her.

Then, competence will survive and incompetence will perish - as they should in a market economy.

If the market of legal services is deregulated, courts will lose the leverage of trying to eliminate capable providers of legal services for the mere reason that those providers blew a whistle on judicial misconduct, and those providers will be available to the public, at a time when governmental misconduct increasingly becomes a problem that needs more and more attorneys to deal with it - and not be afraid to deal with it.

It appears that deregulation of the legal profession is around the corner, and no matter how states are trying to prevent that event (lobbied, no doubt, by the legal elite that stands to lose the most from such deregulation), the Titanic is sinking.

Rearranging decks chairs will not help.

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