"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, August 31, 2015

Attorney regulation must be extinguished as not only violating antitrust laws, but cancelling the will of voters and interfering in investigation and prosecution of criminal laws

In May of 2015 the following letter was written by a Consumers'  Union to the National Association of Attorneys General.

In plain English, the letter stated that states continue to violate federal antitrust laws in ignoring the decision of the U.S. Supreme Court that held in February of 2015 that licensing/disciplinary boards run by supermajority of market participants and without proper state oversight are in violation of federal antitrust laws - in other words, are committing felonies on a large scale and exposing their states to lawsuits that can bankrupt those states.
The letter points out what changes the states were supposed to make in their licensing regimes (that they did not make) to bring them into compliance with antitrust laws:
  • either establish supermajorities of public members not connected with the regulated trade on the regulation boards; or
  • establish oversight an active from a neutral state agency that will have a veto and modification power and that will ensure that members of regulatory board are advancing the state interest and not their own private interests in making their anticompetitive decisions
The letter contains a paragraph that is absolutely precious and is worth quoting:
"You are the chief law enforcement official of the State.  You also advise state agencies.  As such, your predominant obligation is not to arrange or excuse violations of law, but to prevent them and, where that fails, to enforce that law.  That function may place you at odds with the political and institutional prerogatives of these agencies, but we respectfully contend that your duty is not to them as clients receiving blind fealty, but to compliance with applicable Supreme Court decisions warranting your respect".
The paragraph is a monument to political correctness, yet, it correctly hits the bull right in the eye, politely.
It says, in plain English - dear Attorneys General!  You represent agencies whose members violate federal laws and commit felonies.  You also represent people of your state and have a duty to enforce laws, not condone violations of laws.  That is an IRRECONCILABLE conflict of interest.  And in the balance of those interests you need to choose to enforce the laws and not to represent a client.
First of all, that will not and cannot happen.
An attorney MAY NOT act contrary to his or her client's interests.
If the Attorney General represents those suckers who violate federal antitrust laws, he will represent them 100%, without ifs or buts (excluding violations of the law by the Attorney General himself during such representation).
Also, if the Attorney General represents those suckers who pay his salary (us, taxpayers), he must ALSO do that 100%, without ifs or buts.
Those two overlapping 100%s are the problem.
Both of them are ordered by the state laws in most states, imposing upon state Attorney  Generals duties BOTH to uphold the laws, prevent and prosecute violations of laws AND be the representative of state agencies and its members in lawsuits for violations of those laws that the Attorneys General are supposed to enforce.
Until this changes, only the feds (if they do not have their own conflicts of interest - like employing judicial offspring) are neutral enough to provide oversight, investigate and prosecute antitrust violations in the state regulating agencies.
One additional problem with Attorneys General handling compliance with antitrust laws - it concerns them not only in the attorney-client situation where members of licensing boards committing antitrust felonies are AGs' clients.
AG are THEMSELVES licensed attorneys subject to THEIR CLIENTS' regulation of THEIR OWN licenses.
As the case of Kathleen Kane, the currently embattled Attorney General in the State of Pennsylvania shows, battling misconduct in the close ranks of state prosecutors and even in her own office can cost the Attorney General dearly - right now Kathleen Kane, for exposure of misconduct in the "old boys' club" was:
2) referred to the disciplinary authorities - her own clients, THOSE SAME PEOPLE who she is supposed to:
(a) represent in lawsuits against them;
(b) verify their compliance with federal law, as the letter from the Consumer Union requests of her, and as is her duty.
"Coincidentally", the disciplinary referral was made right after a court decision allowing release of porn e-mails of the "old boys' club" using their office time paid by taxpayers for ribald entertainment.
That is - when Kathleen Kane was starting to win in asserting her claim that criminal charges against her was part of political conspiracy to get her out of office and retaliate against her for properly doing her job, her own clients - the disciplinary board - jumped on the bandwagon and lended a helping hand to the "old boys' club" to finish Kathleen Kane without much ado, because suspension of her license will automatically remove her from office as an ELECTED public official, elected by MILLIONS of voters of the state of Pennsylvania.
An awesome power of "market participants" to remove an elected public official from office behind closed doors, without any public input and without any procedure that would ensure fairness to the public, isn't it?
So - when the elected public official is REQUIRED to ALSO be a licensed attorney, the elections are a FARCE and a waste of taxpayer money.
Now, Kathleen Kane's own clients/active market participants in Pennsylvania will decide whether Kathleen Kane will keep her license or not - and if they decide - in their absolute discretion, behind closed doors, without any public input, that Kathleen Kane's law license "must be" suspended, then Kathleen Kane will lose her position as the Attorney General that REQUIRES her to hold a law license from the very people whom she must :
(1) represent in lawsuits for misconduct, and
(2) investigate and prosecute if they are in violation of the law
By the way, there is a petition currently pending on against disciplinary prosecution of Kathleen Kane - filed by consumers and by members of the public who want Kathleen Kane to do exactly what the "politically correct" paragraph I cited from the above letter asked her (among other state AGs) to do - disregard corrupt state actors as "clients receiving blind fealty" and enforce laws against them, which is what this courageous woman is doing. 
So - as much as the Consumer Union's letter wanted to be politically correct, life itself requires that we put political correctness aside and call a spade a spade.
Attorneys General, especially looking at the example of what is being done to Kathleen Kane, WILL NEVER try to "step out of line" and prosecute their own clients or even try to verify their powerful clients' compliance with federal antitrust laws - for as long as those clients hold the AGs' own law licenses, reputations and livelihoods for a lifetime to come, tightly in hand.
In order for anything to move, it is necessary to:
(1) FREE the state Attorneys General from their obligation to represent and advise state agencies, and
(2) REQUIRE that the state Attorneys General MUST NOT be licensed attorneys - because otherwise their independence in assuring that it is public interest and public right to effective legal representation in court that is protected by the states and NOT private interests of board members is NON-EXISTENT.
And, for as long as Attorneys General continue to represent members of the state licensing boards - or any state actors - ALL INFORMATION about them violating any laws, including criminal laws, fall under attorney-client privilege and CANNOT be disclosed by the very same elected official who MUST investate and prosecute his own clients for the crimes, information about which is covered by the absolute attorney-client privilege because of the statutory scheme created by a legislature overpowered by licensed attorneys.
Nice job, isn't it?
You can't frame the Attorney General into a conflict-of-interest quagmire any better and cannot create a better criminal cartel to run your own interests under the guise of the law.  No political correctness is needed here.
And, you can remove a public official elected by millions of voters because several market players gathering in a Star Chamber-like proceedings behind closed doors and without any public input, wanted it.
That's exactly why the legal profession as a whole must be deregulated.
No band-aids of "oversight" by governments that are controlled by attorneys.  Just deregulation.  Nothing else will help.
Otherwise we allow a bunch of private attorneys overrun the will of voters of sovereign states and interfere with investigation and proseuction of crimes and other misconduct in office of high-standing public officials.
So, the need to deregulate the legal profession, as Kathleen Kane's example shows, is bigger than just antitrust violations.
Such regulation undermines democracy, and must be extinguished. 



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