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 Change.org 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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