"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, October 6, 2015

The government as a crook and a lobbyist for powerful private interests: how rules of licensing were changed in order to defeat civil rights challenges of targeted civil rights attorneys in court

Found an interesting federal civil rights case, filed by a disbarred attorney out of the State of Washington in 2012, dismissed in 2014, and the appeal of the dismissal is still pending in the U.S. Court of Appeals for the 9th Circuit.

The name of the disbarred attorney is John Scannell, and he is a kind of a celebrity in his state.

He actually ran for a Supreme Court judgeship aiming to unseat the judge who disbarred him.

Of course, his status as a disbarred attorney was at the fore of his opponents' criticism.

Mr. Scannell was branded as a loser, hints were dropped that he was not all together upstairs etc. etc. etc.

When political opponents of a person, especially of a disbarred civil rights attorney try to claim he is nuts and point at his disbarred status as somehow undermining credibility of his arguments or his worthiness for public office, I get interested in the person's federal claims, usually they are so good that it is necessary to tar-and-feather the person in order to distract people from the issues he or she is raising by character assassination.

I found on federal lawsuit of John R. Scannell challenging his disbarment and procedures that led to it - and, lo and behold, Mr. Scannell's civil rights action could read as a parallel of Neroni v Zayas challenge regarding same or similar procedures and misconduct in attorney disciplinary proceedings in New York, and as a prediction of the U.S. Supreme Court precedent made 3 years down the road.

First, Mr. Scannell was a visionary for bringing, in 2012, a claim under federal antitrust Sherman Act claiming that "self-regulation" of the legal profession by private actors is a violation of federal antitrust law.  That claim was dismissed in 2014, but is, in my opinion, revived as of February 25, 2015 in the U.S. Supreme Court case "North Carolina Board of Dental Examiners v FTC" that repeat exactly what Mr. Scannell said in his lawsuit, and what federal district court dismissed in 2014.

Next, Mr. Scannell describes conflicts of interest in the disciplinary process - a hearing officer who applied for employment with the prosecutor, a party in litigation in front of her, a judge who allegedly  entered into a kick-back agreement of a portion of the hearing officer salary, a disciplinary prosecutor who was a direct subordinate of a powerful public official that Mr. Scannell complained about - and who was, naturally, not investigated or prosecuted, instead Mr. Scannell, a complainant against her, was disbarred by her subordinate acting as a prosecutor.

All of that is very recognizable to me as compared to Mr. Neroni's disbarment proceedings and my own still pending disciplinary proceedings.

Names are different, situations are similar.

Mr. Scannell indicates that he was disciplined for his refusal to disclose information covered by attorney-client privilege when he was secretly subpoenaed to a deposition where disclosure of such information was required, without giving notice to the client who was the holder of the privilege.

In other words, where discipline in licensing was supposed to protect consumers from BAD lawyers, it was used against Mr. Scannell for protecting his client.

I had a similar situation where the 3rd Department disciplinary committee insisted that I must disclose information from a dismissed and sealed criminal case, and attempted to discipline me for referring them to my client and to the sealing court to (1) unseal the information they were seeking from me;  (2) seek waiver of privilege from my client.

Of course, the disciplinary committee did neither.

In Mr. Scannell's case, the disbarring "court" did not even try to conceal the fact that Mr. Scannell's law license was revoked for "noncooperation with investigation" - which was specifically for protecting privileged information of his client, and for making difficult "self-regulation" of the legal profession, which "self-regulation" as to any professions regulated by their own market players, was considered a federal violation by the U.S. Supreme Court 5 years after Mr. Scannell's disbarment.

Yet, one prominent issue that Mr. Scannell raised by his pleadings which was identical with the issue in Neroni v Zayas in New York is the "plenary" (total) power of the disbarring "court", including legislative, police/investigative, prosecutorial and judicial power over the proceedings.

Even though Mr. Scannell did not say in so many words in his complaint that such a complete conflation of power is a characteristic of an administrative, not a judicial proceeding, that is exactly what Washington attorney license revocation proceedings are, administrative and not judicial.

First, professional licenses of any other licensed professionals are revoked by administrative boards, subject to two levels of review in state courts, see announcement on the website of Washington State Attorney General.

Placing revocation of law licenses apart from other professional licenses and putting it into a "court", while that "court" does the same things as an administrative agency does - creates rules by which it operates in the disciplinary proceedings, acts as a legislator, adjudicator, police investigator and prosecutor - negates any claims that such proceedings are "judicial" in nature.

Obviously, determination of the nature of a proceeding does not come from the name of the agency that is holding the proceeding.

If a court holds a luncheon, that does not mean luncheon is a judicial proceeding.

If a court holds a license revocation proceeding, which is an executive function for any other professional license in that same state, that does not mean that placing license revocation proceedings into that court somehow changed the nature of the administrative license revocation proceedings into a judicial proceeding.

It is interesting that Mr. Scannell's federal complaint filed in 2012 repeated nearly verbatim claims of various witnesses before the New York State Commission for Attorney Discipline in 2015 - that the problems in attorney disciplinary system are:

  • that civil rights attorneys, solo attorneys, minority attorneys and critics of misconduct in the government are disproportionately targeted by attorney disciplinary proceedings, while complaints against criminal prosecutors and attorneys from powerful large firms are ignored.

In view of such selective enforcement of attorney discipline, placing of attorney disciplinary proceedings directly with the court by the legislature (and legislatures in all states are dominated by licensed attorneys from large firms, an interest group) can be deemed part of the antitrust scheme and the scheme of quashing political dissent against the judiciary and powerful attorney groups.

Once again, since civil rights attorneys (that is a federal practice) are targeted by state disciplinary action which is often politically motivated and is always dominated by private interests, people who devised disciplinary rules against attorneys realized that such attorneys are not easy targets, because they are knowledgeable in civil rights litigation.

As to John Scannell, returned a 2-page list of cases, a long list, litigated by John Scannell in federal courts over the years, and only 2 or 3 cases out of, probably, 50, was where John Scannell appeared as a party, in other cases he appeared as an attorney.

So, in order to make it easy for the usually incompetent and lazy government attorneys to win civil rights challenges of wrongfully disbarred civil rights attorneys, the lawyer-dominated legislatures invented a brilliant move - and promulgated it in all states of the Untied States - to claim that "historically" it is the courts that regulated attorneys, and that's why, the courts must handle attorney licensing and license revocation/discipline.

That move has made the following differences in outcomes in federal civil rights challenges possible:

How decided by federal courts if prior state proceeding was judicial
How decided by federal courts if prior state proceeding was administrative

Taking without due process of law

Rooker-Feldman bar to jurisdiction, civil rights case dismissed

Rooker-Feldman bar inapplicable, civil rights case proceeds

Collateral estoppel to state proceedings

Fully applies, civil rights case dismissed
Does not apply to federal constitutional issues since federal constitutional issues are not allowed to be resolved in administrative proceedings, civil rights case proceeds

Nature of proceedings in revocation of a professional license
Civil rights case challenging revocation dismissed
Civil rights case challenging revocation proceeds

Exhaustion of state remedies before starting a federal civil rights action

Is not required by federal civil rights statute, but federal courts apply a Rooker-Feldman bar, implying that federal constitutional issues should have been raised in state court proceedings and are precluded from being raised in federal court after such state court proceedings, civil rights case dismissed

Is not required, Patsy v Fla. Bd. of Regents, 457 U.S. 496 (1982), and Rooker-Feldman bar does not apply, civil rights case proceeds

I would like to stress once again the distinction as to the case interlinked in the table above:



JOHN REED, Director of the Professional Liability
Catastrophic Loss Fund; DANIEL KIMBALL, JR., M.D.,
Chairman of the Pennsylvania State Board of Medicine;
GERALD SMITH, ESQ., Counsel for the State Board of
Medicine, Commonwealth of Pennsylvania

because suspension of a MEDICAL license is designated as administrative proceeding, to which the Rooker-Feldman doctrine does not apply;

  • suspension or revocation of an attorney's license CANNOT be challenged in federal court because of the identity of the governmental AGENCY handling the license revocation - the court, even though the nature of the proceeding, license revocation, did not change, and is still administrative
So, by delegating the handling of an executive function to a court, the administrative nature of the proceedings was obscured, and instead the only thing that federal courts look at in defining the nature of attorney license revocation proceedings, is the name of the agency that revoked the license.

If the name of administrative licensing agency is a court - a federal civil rights lawsuit by a wrongfully disbarred civil rights attorney, a professional in such cases, will be barred, so it can be won by the lazy and incompetent government hands down.

If the name of administrative licensing agency is a "board", and the petitioner is not an attorney, and, as a medical professional, does not challenge governmental misconduct on a regular basis, as a civil rights attorney does - he is given a green light to litigate his federal constitutional claims.

As with any crooks in power, they are lazy, incompetent, and know it, that's why they know that they can win against a wrongfully disbarred professional civil rights attorney other than by changing the rules on him in such a way that makes litigation in federal court impossible.

So, if an architect or a doctor had his license revoked and goes to federal court - the case will be accepted and prosecuted in federal court.

If professional license is of an attorney - the case will be dismissed.

That distinction without a difference makes no sense and is definitely in violation of the Equal Protection Clause of the 14th Amendment, not that any of the judges who regularly dismiss such complaints would recognize that.  

After all, federal judges also sit only during the period of "good behavior", and have to be licensed attorneys.  

There is nothing easier than to accuse them of practicing law while on the bench, discipline them, revoke their licenses - and here goes the judgeship, so federal, as well as state judges must be careful to tiptoe the line and to do the bidding of private interest groups in keeping wrongfully disbarred civil rights attorneys - wrongfully disbarred.

In view of the recent decision by the U.S. Supreme Court declaring self-regulation of professions without state oversight a federal antitrust violation, such tricks making it harder for a chosen class of licensed professionals to find it impossible to challenge their license revocation in court, are part of the anticompetitive scheme, harm consumers of legal services and deplete the already thin supply of civil rights lawyers who are nearly sanctioned into extinction by state discipline and federal fines for "frivolous" constitutional arguments on behalf of their clients.

Legal consumers lose.

And, until legal consumers realize that attorney discipline, the way it exists in all states and on a federal level, was designed by market players to favor the most powerful market players and to weed out those attorneys who actually protect their clients' interests, nothing will change in the shortage of proper and independent court representatives for the public.

So, where at this time it remains a lonely fight of wrongfully disbarred civil rights attorneys, there should be a grass roots movement by the public to end attorney regulation, the way it exists now, as a criminal cartel of powerful private interests.

As to how John Scannell looks (which was one of the main objects of criticism during his campaign for a judgeship), I would prefer an unpolished look of a brilliant mind of a person with integrity, like John Scannell appears to be, to a polished and refined crook.

And the answer to "why the ***" a disbarred attorney was running for a judge is - because a disbarment obtained in violation of the U.S. Constitution, whether the federal court did or did not want to hear that, is void, according to the U.S. Supreme Court's own decision in Marbury v Madison (unconstitutional decisions are void), and because using occupational licensing run by private groups in order to remove and/or discredit eligible candidates for public office is fraud upon the public.

And - the dismissal of John Scannell's claims, at least the claims under the Sherman Act, must now be returned to review because of the new U.S. Supreme Court precedent.  I highly doubt that federal courts will accept the "revolutionary" argument that what walks like a duck and quacks like a duck (an administrative proceeding for license revocation), is actually a duck, and a lame one, even if it is labeled "court" proceedings.

Yet, the challenge to the nature of attorney disciplinary proceedings have been filed in Neroni v Zayas, it will be filed in my case, if my license is affected because of my professional activity as a civil rights attorney, I am spreading the word as to this particular issue to all wrongfully disbarred attorneys I know, so the fight will definitely continue.

No comments:

Post a Comment