"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.

Thursday, October 8, 2015

The desperate call of the American Bar Association to state courts to do something to retain control over the legal profession by the judiciary

The American Bar Association has obviously seen the writing on the wall when the North Carolina Board of Dental Examiners v FTC was decided in February of 2015 by the U.S. Supreme Court.

In that case, the U.S. Supreme Court rejected arguments that the "state" licensing and disciplinary board run by supermajorities of regulated professionals (market players), is entitled to immunity for antitrust activities, activities to quash competition under the guise of licensing or disciplinary process.

They did not win.

After the decision, since February 2015, nothing was done in the majority of the state to implement the U.S. Supreme Court ruling and correct the situation where attorney licensing and discipline is run as a criminal antitrust cartel by courts and disciplinary committees dominated by private interests.

I wrote extensively about New York State Statewide Commission for Attorney Discipline, conflicts of interest in its creation, crookish ways in handling public hearings, crookish ways in selection and handling of witnesses, and crookish ways in producing the results which did not address antitrust activities one bit - and contradicted positions of members of the Commission in litigation.

I also indicated that inconsistencies in Commission members' positions have already been challenged through a civil rights appeal and through a Rule 60 motion to vacate in federal court in the Northern District of New York, in the case called Neroni v Zayas, Case Nos. 3:13-cv-127 (NDNY) and 15-2030 in the U.S. Court of Appeals for the 2nd Circuit.

On October 7, 2015, yet another "draft resolution" of yet another "Commission" of yet another professional organization of attorneys was published and distributed by legal blogs, mainly proposing "how to rearrange the deck chairs on the Titanic".

It features as objective No. 1 "protection of the public" and only No. 8 "independence of professional judgment".  Of course, it is good that such an objective even made it into the list of goals of an attorney professional organization, even if it is on the bottom of perceived priorities for that organization.

Yet, independence of professional judgment goes hand in hand with the primary goal of attorneys - to protect interests of their clients, members of the public.  And this independence is severely undermined by the very fact that the government, whose misconduct attorneys are supposed to challenge, controls that same attorney's livelihood.

Under such a scheme of things it is unreasonable to expect any independence of professional judgment whatsoever and any protection of the public.

Of course, what is prominently missing from the objective is restructuring attorney discipline to have it comply with antitrust laws.  That will require the elite of the legal profession and the judiciary to cede too much power.

This is the appeal by the ABA to "highest state courts" in the report:

Count on the legal profession to be evasive.

The report does not say - please, please, please, DO SOMETHING before we all are dragged on federal indictments under the Sherman Act and sued into bankruptcy.

Instead, the legal profession "urges each state's highest court, and those of each territory and tribe", to be guided by objectives that ABA created in its October 7, 2015 report (while being silent on objectives demanded by the U.S. Supreme Court precedent since February of 2015 to stop running  occupational licensing, including attorney licensing as a criminal cartel) and to:

(1) "assess the court's existing regulatory framework and
(2) identify and implement regulatory innovations related to legal services beyond the traditional regulation of the legal profession."

It is very vague, and it is misleading through its vagueness, because it is not a "regulatory innovation" to bring a regulatory scheme in compliance with federal antitrust laws.

And, what the ABA report DOES NOT request, even though it gives lip service to "independence of professional judgment" as one of its goals (at the bottom of priorities) is  - ABA does not request to deregulate the legal profession, remove it from dependence on governmental approval, due to its duty to challenge improprieties in the government on behalf of clients.

The report then went into a little of a self-aggrandizement, indicating that the ABA searched far and wide in history of attorney regulation across the world 

- while remaining deliberately obtuse as to the decision of the U.S. Supreme Court on the very issue of occupational regulation that triggered the report to begin with, in an attempt to save the legal profession from the impending doom of deregulation.

The report also contains a disclaimer in bold font:

The disclaimer makes the proposed goals meaningless, since the proposed goals were not approved by the governing body of the organization that issued the report.

The true goal of the "draft resolution" is contained, in my view, in this paragraph:

Even more specifically, in the last sentence of the paragraph:

"...if supreme courts are more expressly guided by regulatory objectives, U.S. jurisdictions may be more successful in retaining judicial control over the regulation of legal services than has been true elsewhere".

That, in plain English, means that:

1) the ABA implicitly acknowledges that now regulation of attorneys by courts does not follow these objectives:


2)  that control by the judiciary over attorney regulation is presently slipping ("U.S. jurisdictions may be more successful in retaining judicial control", and

3) that retaining such control by the judiciary over attorney regulation is desirable for the legal profession - of course, with a disclaimer that what is expressed is not the "policy of the ABA".

The conflict of interest for the professional attorney organization to, at the same time, put "protection of the public" as No. 1 goal, and still fight for keeping the legal profession in the grips of the judiciary, and saying nothing about removing the anticompetitive nature of attorney regulation by that judiciary, and saying nothing about the judiciary undermining independence of attorney's professional judgment by sanctions, court rules and the use of attorney discipline to quash critics of judicial misconduct - all of which HURTS that same public.   

It is an obvious cryout to partners in crime to preserve the profits and power of the legal profession, and has nothing to do with protection of the public.

The "draft resolution" provides NO guidance whatsoever as to what are the factors undermining "independence of professional judgment" of attorneys, or how to remedy the situation.

Does it seem only to me that this is a cry for help to the courts to rescue the financial well-beings of lawyers by "doing something"?

Sure seems like that to me.

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