"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.

Wednesday, July 29, 2015

The future of the legal profession was challenged in the lawsuit LegalZoom Inc., v North Carolina State Bar

In February of 2015 the U.S. Supreme Court has made a determination that the state of North Carolina (the State Board of Dental Examiners) violated the Anti-Trust law in aggressively (and self-servingly, because members of the State Board were active market participants with financial interests to oust competition - same as attorney members of attorney disciplinary committees throughout this blessed country are) trying to prevent non-dentists to perform  services that do not require medical knowledge, specifically, teeth whitening.

Since the members of the State Board of Dental Examiners who are market participants at the same time, were engaged in self-serving anti-trust activity and were not actively supervised by the state, the U.S. Supreme Court stripped them of immunity for their conduct, opening the door to lawsuits against them and members of state boards in similar position to the dentists, such as members of attorney disciplinary committees.

By the way, New York immediately reacted to the decision by creating a "Commission", composed of practically exclusively market participants (again) to see how to make attorney discipline "fairer", more uniform and effective.  

At this time that Commission is holding "lunch-time during vacation time"  "public" hearings with testimony "by invitation", on an extremely short notice to the public.

I recently blogged about those pro forma "hearings", about financial interests of individuals who handle those hearings in the outcome of the hearings, including the vested financial interests in preservation of the status quo of the "interested experts" who are members of the Commission.

What the Commission is trying to do in reality, though, is to prevent the inevitable - the deregulation of the legal profession, the profession that is, despite its self-proclaimed "honor" is stifling development of the law, is breeding corruption on all levels and in all branches of the government and is preventing effective and affordable representation in court for majority of Americans.

It is not accidental that bar associations from around the country aggressively, but unsuccessfully fought through "friend of the court" briefs to prevent the decision by the U.S. Supreme Court of February 2015 in the case North Carolina Board of Dental Examiners v. Federal Trade Commission.

I followed up in April of 2015 with a complaint to the Federal Trade Commission complaining that the entire way how New York State administers attorney discipline is in violation of anti-trust laws, both to attorneys where attorney members of disciplinary committees are selectively choosing to prosecute solo attorneys, independent attorneys, criminal defense and civil rights attorneys and critics of governmental misconduct, and that the public is blocked from affordable legal service because most of the disbarred and suspended attorneys are engaged in pro bono and low-cost representation.

I used the Dental Examiners case in my complaint, and I am sure I am not the only one who is or will be using this case against bar associations in the future.

For example, now the State of North Carolina is being sued for antitrust violations by LegalZoom, a well known provider of information packages about the law, the provider that was aggressively pursued by the bar associations around the country for providing to people cheaper information than what the lawyers' "advice".

I must note that bar associations were trying to prevent the flow of information from reaching the consumers at the time when - and it is consistent statistics around states in the United States - over 80% or more, or over 4/5 of litigants in the U.S., cannot afford an attorney, see also addresses of New York State Chief Judge year in and year out where the "justice gap" is mentioned.

Under these specific circumstances, to attempt to deprive them of a cheaper option to gain information about the law is, in my personal opinion, quite dishonorable, contrary to the self-anointing by the legal profession as an "honorable" profession.

The LegalZoom is quoting the case regarding the Dental Examiners in its federal complaint.  Moreover, the action against members of the state bar's disciplinary committee in their individual capacity, as noted on the caption of the lawsuit, has become possible because of decision of the U.S. Supreme Court in North Carolina Board of Dental Examiners v. Federal Trade Commission.

The essence of the federal complaint is that the North Carolina State bar is self-servingly suppressing competition in violation of federal antitrust laws.

The complaint of the LegalZoom notes that after the decision in February of 2015 by the U.S. Supreme Court, predicting their vulnerability to such a lawsuit, North Carolina lawyers appealed to the state legislature to impose "active supervision" upon the state's attorney disciplinary boards to obtain immunity from such lawsuits, but the legislation was not yet passed.

Here are portions of the LegalZoom's complaint against the North Carolina State bar on this issue:

Moreover, the "active supervision" requested was once again by an attorney - by the Attorney General, who is also a market participant since without a license he or she would not be able to maintain the position of the Attorney General, with its salary and benefits.

With due respect, supervision of attorneys by yet another attorney should not constitute active supervision by a neutral state body.

But what completely blew my mind was what exactly the North Carolina bar was barring (the pun is intended) in terms of the services provided by LegalZoom.

The North Carolina State bar was barring LegalZoom's from providing to consumers - guess what? - prepaid packages of legal services, which had to be necessarily provided by attorneys licensed in North Carolina!  

The outcome of this case in federal court may have a deep impact upon the entire legal profession and upon what constitutes "practice of law" and what can or cannot be regulated by the states in view of federal antitrust laws, even if the legal profession is regulated.

The "problem", I guess, was that the services provided by attorneys licensed in North Carolina, were cheaper than those that the "legal elite" represented by members of attorney disciplinary committees were providing, because such services were provided on a "subscription" basis through LegalZoom and at lower prices to the consumer, undermining the members' of the State Bar committee's own financial livelihood.

So, the LegalZoom case against North Carolina State Bar is actually much stronger than the case against Dental Examiners who claimed that non-dentists were to be regulated as dentists for provision of teeth whitening.

This is the case where the State Bar consisting of market players with vested financial interests (all attorneys sworn to protect the State and Federal Constitutions and the law, by the way) are violating federal law to advance their own financial interests by banning legal services that are more affordable than those that members of the State Bar Committees are happy with.  That is price regulation, pure and simple, among members of the legal profession, and that is exactly within the core of protection of antitrust laws.

That such actions are dishonorable is not even a legal question - it is plain for everybody to see.

Judging by the docket report of the case from, defendants in LegalZoom, Inc. v. North Carolina State Bar et al, Case No. 1:15-cv-439 in the U.S. District Court for the Middle District Court of North Carolina were given until August 20, 2015 to answer the complaint of LegalZoom.

I will report on the developments in the case that affects everybody's right to effective and independent representation and access to information and affordable legal services.

Yet, the important thing that the LegalZoom's lawsuit did, whether it will or will not be won in court, is to put in front of a court of law the issue that private market players claim the power of the government to block access of competitors to the market and thus make badly needed legal services more scarse and less affordable, in the market that is already suffering from scarcity and lack of affordability of services.

The very same situation is happening across the country and in New York, and it is obvious that the band-aid of the new "Commission" consisting, again, of market participants with vested interest not to change anything essential in restrictions for provision of legal services in the State of New York and to continue to use regulation as a tool squashing competition by independent and honest attorneys.

That's why the LegalZoom case, if decided in LegalZoom's favor, can spell the doom for regulation of the entire legal profession, for the benefit of all Americans who are not trained enough to jump through riddles of lawyerspeak to represent themselves in court, do not have enough money for an attorney to do that and, if they have money for an attorney, the attorney is not truly independent to raise all issues in court because the attorney's own livelihood is in the hands of the people whose misconduct he may be duty-bound to challenge on behalf of a client.

Under the current scheme of regulation of the legal profession, litigants lose and true access to justice is nothing more than a fiction.

LegalZoom's lawsuit can help change that in the long run.

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