"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.

Tuesday, September 29, 2015

The now-taboo word the NYS Statewide Commission on Attorney Discipline did not use in its Report (only in testimony): self-regulation of the legal profession as a federal crime

Since last week, I have been analyzing the Sept. 24, 2015 Report and Recommendations of the New York State Statewide Commission for Attorney Discipline (from now on in this blog post - the "Cozier Report", named after the Chair of the Commission, private attorney and former judge Barry Cozier who continues to call himself a judge), and I could not shed the feeling that something that I usually see in attorney's reports and statements about the system of attorney regulation, was missing.

It was like a phantom pain, I could not put my finger on it.

Then it dawned on me.

The word "self-regulation" is entirely missing from the Report.

I did find a statement about lawyers "self-policing" its own profession made in the testimony of Mr. Krinsky in the public hearing before the Cozier Commission in New York City (see p. 12 of the transcript).

Attorney Krinsky spoke on behalf of New York State Academy of Trial Lawyers, see witness list.

Here is Attorney Krinsky's registration information.

I do not know whether Mr. Krinsky read the North Carolina Board of Dental Examiners v. FTC case or was aware of it.

At least some members of the Commission certainly were, because I personally notified them through my pleadings, moreover, knowledge of the law is presumed.

Attorney Krinsky had duty of candor to the tribunal.

The Commission is a tribunal.

Making a statement about self-policing as a good thing, after the U.S. Supreme Court saying that self-policing of a profession by members of the profession under the guise of state licensing is an antitrust violation, in my opinion, was frivolous and a disciplinary violation for an attorney.

Moreover, according to the Commission's information on its website, testimony of witnesses was pre-screened, so the Commission knew what Mr. Krinsky was going to say and intentionally allowed such misleading testimony, which was a disciplinary violation for all attorney members of the Commission.

As of February 25, 2015 the U.S. Supreme Court has branded "self-policing" by private professionals of their own profession under the guise of state occupational licensing as an antitrust violation and stripped such "self-policers", members of disciplinary committees, of their immunity in antitrust civil lawsuits.

Bar associations, as I wrote before on this blog, filed "friend of the court" briefs in droves to prevent that case from being decided the way it was eventually decided, and the Cozier Commission was created because of the legal profession's fear of the impact of that case upon their protected fiefdom.

Another member of the legal profession who was trying to revive an already dead horse, the concept of "self-regulating profession" that has become criminal as of February 25, 2015, was Professor Milles, Professor of legal ethics from SUNY Buffalo Law School.  I wonder if Professor Milles was aware of the ruling in North Carolina Board of Dental Examiners when he continued to speak about "self-regulating" profession (see Buffalo transcript, p. 55) and about drilling into his students and the public the idea of respect into what has already become criminal behavior.

 According to New York State registration website, Professor James Milles is not a licensed attorney in New York.

Yet, even if Professor Milles statement was not a disciplinary violation as an attorney because he is not an attorney, Professor Milles is teaching future lawyers and is embedding into their heads that they must respect what has become criminal behavior, and embeds that, through his authority as a professor, into the heads of the public.

Once again, the Commission, consisting nearly entirely of lawyers, and hearing panels in New York City, Buffalo and Albany consisting only of lawyers, pre-screened testimony of all witnesses who wanted to testify orally by requesting prior written submissions of that testimony, so Professor Milles' statements about teaching respect to what was characterized by the U.S. Supreme Court as a federal antitrust violation, was approved by the Commission - because no statements came from the Commission attempting to correct Professor Milles who was misleading the public, not during the hearing and not in the Report and Recommendations of the Commission.

By the way, by putting nearly only lawyers on the Commission and only lawyers into the hearing panels, the criminal "self-regulation" continued.

Thus, the Commission intentionally allowed, without any corrections, the misleading testimony that self-regulation of the legal profession is proper and should be further respected, instead of prosecuted as a crime.

It appears that Professor Milles is either not keeping himself up to par on the relevant law, or, being a professor and knowing the applicable law, intentionally misled the public by testifying that self-regulation of the legal profession, which was branded as a federal antitrust violation since it's done under the guise of state licensing, still warrants respect, and describing that "we", as "we in the Commission", or "we in the legal profession", or "we the legal ethics professors" "are trying to infiltrate respect for the disciplinary process, for the idea of the self-regulating profession".

Nothing like a legal ethics professor trying to "infiltrate respect" for criminal behavior.

I already wrote about Professor Milles' testimony to the Commission earlier in this blog.

There were no statements about "self-regulation" made in the Albany hearing as far as I could see, please, correct me if I am wrong.

Here are two excerpts from the decision of the U.S. Supreme Court about "self-regulation" of a profession by members of the profession:

With no oversight required by the U.S. Supreme Court over attorney regulations by "non-sovereign actors", such regulation in its entirety runs afoul of antitrust laws, and making cosmetic changes in it will not suffice.

Yet, a member of the legal profession and a professor teaching legal ethics continued to promote what has been ruled as a federal antitrust violation in public hearings before the Commission, the Commission approved of it by, first, allowing such testimony-by-invitation after pre-screening it, while not allowing 50 willing witnesses to testify, according to Commission's own Report, and making no statements whatsoever in the hearings or in the Report addressing the issue that continued "self-policing", or "self-regulation" of the profession is improper and a statewide STAY of attorney discipline must be imposed until New York State makes its attorney licensing comply with federal antitrust laws.

I would like to repeat my main idea again.

When private professionals claim that what is official called occupational licensing of attorneys by the State of New York, is in reality "self-policing" of private attorneys by other private attorneys, that is an admission to a federal antitrust crime and should be STOPPED and PROSECUTED as a crime, as against all perpetrators of that crime, including co-conspirators and aiders and abettors, instead of "infiltrating respect to the idea".

No comments:

Post a Comment