"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.

Saturday, October 24, 2015

The Florida Bar tries to prevent the impending doom of deregulation by measure aimed to find and entrap competitors and get more funds for lawyers

In February of 2015 the U.S. Supreme Court has started what can be viewed as deregulation of occupations regulated by the government.

In its seminal decision, North Carolina Board of Dental Examiners v Federal Trade Commission, the U.S. Supreme Court stripped disciplinary/licensing boards run by supermajorities of market players, the regulated professionals, of antitrust immunity.

In other words, the U.S. Supreme Court allowed civil lawsuits against members of disciplinary boards for their actions in disciplining and license denial, suspension or revocation for "self-regulators" of the profession where it can be found that they asserted anti-competitive interests and not the interests of the government in consumer protection that is claimed as the official basis for occupational regulation to exist.

Even though the case was about Dental examiners, it was fully applicable to all similarly regulated professions, and that's why bar associations fought that decision before it was made.

In November of 2013 the North Carolina Bar Association filed a brief with the Federal Trade Commission opposing the denial to the Dental Board of antitrust immunity.  

In 2014, an amicus brief was filed with the U.S. Supreme Court by the North Carolina, Nevada, West Virginia and Florida Bar Associations, asking for antitrust immunity for market players "regulating" their own profession.

After the oral arguments, in fear that the decision will be not the way the bar associations wanted and that it will affect the power of the American legal elite to run its own profession - for its own benefit, and not for the benefit of the consumers - bar associations and courts in different states created "commissions" I wrote about previously and am writing about in this blog.

New York created a Statewide Commission for Attorney Discipline claiming that it is created to protect consumers and provide efficient and fair attorney discipline.

The Commission was founded by an insider, made out of insiders who caused problems they were allegedly appointed to resolve, and those insiders ran the Commission in a way designed not to bring about any meaningful change and not to allow the public to know what the Commission is doing - or not doing (you can do the word search on this blog for "commission for attorney discipline" to see the multiple blog posts on this subject.

The Florida Bar, faced with the issue of antitrust liability (lawsuits for treble damages for the loss of professional licenses) for regulating the profession not in order to help consumers, but in order to eliminate competition, created a commission for "access to justice".

Its recent report, heralded (by the Florida bar itself) as evidence that they are doing something positive to relieve the access-to-justice crisis that they themselves cause by lobbying and enforcing laws criminally punishing unlicensed individuals who help indigent people to access justice.

Their recommendation of reform are, predictably, nothing short of self serving.

The recommendations DO NOT include a request for the Florida Supreme Court to introduce supermajorities of consumers in regulation of the legal profession - in order to comply with the U.S. Supreme Court decision in the North Carolina Bar of Dental Examiners.

The recommendations DO include provisions that, taking into account the continued existence of unauthorized-practice-of-law criminal laws, can be considered as nothing short of finding and entrapping competitors of Florida lawyers.

The Florida bar association offered to create "a Gateway Triage" to provide legal consumers with access to legal services, and, for those who cannot afford a laywer, to some information services.

At the same time the same Florida bar undertakes investigations and prosecutions for unauthorized practice of law and issues advisory opinions on that subject, being, thus the source of law on the issue of regulation which is handled, as the U.S. Supreme Court indicated in North Carolina Board of Dental Examiners v FTC, may be a federal antitrust violation (which is also a crime).

The Florida bar also requested the courts to consider allowing "unbundled" legal services which allegedly will make it easier for lawyers to "ghostwrite" pleadings without appearing in the case.

Yet, the stress is that only lawyers can ghostwrite pleadings - and, since the lawyer is not appearing in the case, such a permission, if such ghostwriters are not required to be identified in the case - already amounts to a request to deregulation.

After all, there is no rational basis why an UNKNOWN individual (lawyer or not lawyer) can ghostwrite a pleading behind the scene without ever being identified to the court as appearing for a client, but cannot ACTUALLY appear for a client in court.

Such permissions, made by the Florida bar in the face of impending doom sounded out as early as in May of this year by the American Bar Association pointing out the effect on the legal profession of the North Carolina Board of Dental Examiners v. FTC, clearly indicate that protection of consumers is very far from the bar association's mind, but protection of its own livelihood and status quo, complete with illegal "self"-regulation in violation of federal antitrust laws is very much at the front of their thinking.

Deregulation of the legal profession WILL COST NOTHING to taxpayers.

No disciplinary committees needed, no funds for opposing civil rights and antitrust lawsuits of lawyers needed, and consumers will choose who they want to access courts, thus relieving the access-to-justice crisis.

No, the Florida bar could not have that, it will mean loss of power and loss of financial advantage of such proportions that the declared considerations of access to justice for indigent consumers simply went down the drain.

Instead, the Florida Bar suggested another band-aid for the sinking ship:

to grab the so called "cy pres" funds (undistributed leftovers in class settlements) to finance legal aid services:


Funding Subcommittee: One recommendation to the Florida Supreme Court passed unanimously (with officers of The Florida Bar Foundation recusing themselves from voting):
Recommend that the Florida Supreme Court approve consideration of a cy pres rule in Florida. Currently, Gywnne Young explained, the cy pres rule allows for residual funds from a class-action settlement, which haven’t been distributed to the plaintiffs, to be given to charitable groups on an ad hoc basis. The proposed cy pres rule would require that the funds go to legal services. The funds would go to The Florida Bar Foundation or “other qualifying legal aid groups.” Young said in 2012, California had almost $9 million go to legal services from cy pres awards, and recently Washington State’s legal services received about $6 million from cy pres awards.


It is clear that such funds are few and far between and that the source for such funding is not stable.  With millions of cases pending in court, 9 million diverted to foundations which will mostly be used on administrative expenses and medical and pension benefits, will not even make a dent in the access-to-justice crisis which is CAUSED by the legal profession and must be relieved not be means of continuing to fuel more funds into that legal profession and its various "associations" and "approved foundations".

Moreover, courts are not legislators and may not set up policies of who gets the cy pres funds.  Cy pres is an equitable principle not subject to statutory approval, and our courts went so far as creating for themselves a concept of absolute judicial immunity for MALICIOUS and CORRUPT acts on the bench allegedly to assure their own independence.

Now the Florida bar tries to influence judges in present and future class action cases in order to have the judges, without consent of class members, to distribute the cy pres funds not to the class members who appeared in the action, but to the legal aid services - and thus to fund out of their own pockets the problem that the rich attorneys created by refusing to cede power of criminal "self-regulation".

So, Florida legal establishment got inventive in the face of the impending inevitable (from historical point of view) doom of regulation of the legal profession - at least the way it is done now, by its own market players.

But the Florida Bar's inventiveness certainly was not aimed at helping consumers of legal services in the state of Florida.

Note what a law professor told the American Bar Association for its article about the impact of the U.S. SUpreme COurt decision stripping antitrust immunity from market players regulating their own profession - as applied to the legal profession:

"it is good for access to justice".

It IS good for access to justice.

And a full deregulation of the legal profession allowing consumers of legal services to decide on their own, as competent adults, who to choose for the most important service of representing them in court - without the help of government or anticompetitive interest groups - will be even better.

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