"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.

Wednesday, October 7, 2015

The lame first step towards deregulation of the legal profession - still thank you, Pennsylvania

I just blogged about an amazing case from Pennsylvania where a court granted a litigant in front of an administrative unemployment benefits panel a right to "representation of his choice", where the choice were two individuals with suspended licenses.

The denial of unemployment benefits to the challenger, Mr. Powell, was reversed and remanded ONLY because "representatives of his choice" were not allowed to represent him at the hearing.

Mr. Powell, brought his challenge for "representation of his choice" as a due process challenge.

Even though the court did not say in so many words that Mr. Powell had a DUE PROCESS right to representation of his choice, but only a "statutory" right, it clearly seems that Mr. Powell was granted a constitutional due process challenge, because Mr. Powell DID NOT RAISE a statutory claim, only a constitutional claim.

Yet, the analysis both by the Board that denied Mr. Powell representation by two men with suspended law licenses, which was not clearly addressed by the Judge, was bizarre and presents a separate equal protection problem, for Mr. Powell's representatives.

This is what the court said about the Board's claimed grounds to bar Don Bailey and Andy Ostrowski from representing Mr. Powell before the unemployment benefits panel:

First of all, the word combinations "suspended attorney" or "disbarred attorney" is a legal oxymoron, these two words are legally incompatible.

The correct way of putting it, not to obscure the legal status of the person described is "a NON-attorney whose law license was suspended or disbarred".

By calling such people "suspended attorneys", or "disbarred attorneys", the implication is made that the legal status of such people differs from those who were never licensed to practice law to begin with.

And that is exactly how the Board interprets the statute:

  • Non-attorneys are allowed to represent clients at the unemployment benefits proceedings, and
  • "suspended attorneys" cannot, 
even though both of these classes are united by the same attribute - they DO NOT HAVE A LAW LICENSE, and whether they do not have it because they NEVER HAD IT, or because IT WAS TAKEN AWAY, has no legal difference as to THEIR rights, including their rights to employment or business opportunities.  That is THEIR due process and equal protection challenge.

Instead of taking this "distinction without a difference" head-on, the court engaged in mind games.

The court cites the Disciplinary Rules that prohibit individuals who lost their law licenses from PRACTICING LAW, then concluded that what Mr. Bailey and Mr. Ostrowski attempted to do was NOT practice of law, by statute, but then made the following mysterious statement:

Even though the court's finding that representation before the unemployment benefits board DID NOT constitute the practice of law, and analysis of the situation should have ended at that, the court started quoting Pennsylvania attorney disciplinary rules which are clearly unconstitutional because they prohibit a non-attorney with a suspended or revoked license MORE than the law prohibits a non-attorney, which is very clearly outside of the authority of a LICENSING body that has just two functions:

1) give a license;
2) take away a license,

but has no right to take away, with the taking of a license, MORE RIGHTS than the person had before he obtained that license.

The court's analysis is most peculiar.

The court quotes the Disciplinary Rules that the Board quoted and that the court rejected as a basis of Mr. Powell's right to "representation of his choice";

Then, the court quotes the governing Pennsylvania statute that allows representation at unemployment benefits hearings by non-attorneys;

Then the court, stunningly, states that whether such representation did or did not constitute the practice of law, is not the question to be decided by the court, BECAUSE representation by non-attorneys is allowed.

Yet, such a ruling presents an inherent conflict, because non-attorneys MAY NOT be allowed to engage in what constitutes the practice of law, where such a thing is prohibited by a criminal statute, unauthorized practice of law, UPL, so what is allowed to non-attorneys, DOES NOT, as a matter of law, constitute the practice of law.

Then, the court which has the right to interpret the Disciplinary rules against attorneys, refused to do so and stated simply that the Board had no business relying upon the Disciplinary rules instead of the governing statute in deciding the question of representation of Mr. Powell, and used the threatening word combination "potential disciplinary violation" in relation of the individuals chosen by Mr. Powell to represent him.

The court was correct to say that it was improper (actually, a due process violation, but the court was apparently afraid to say so, not to show that the case is decided on constitutional grounds) to sanction one individual for actions of another.

Yet, the court was incorrect to deem what did not constitute the practice of law as a "potential violation" of disciplinary rules for Mr. Bailey and Mr. Ostrowski.

Thus, the court, at the very time, took from Mr. Powell with the left hand what it was giving with the right hand.

It allowed TO MR. POWELL representation by Mr. Bailey and Mr. Ostrowski, but left open the question whether, by such representation, Mr. Bailey and Mr. Ostrowski will be engaging in unauthorized practice of law that could lead them into a DOUBLE criminal prosecution - for UPL and for contempt of the court order of suspension.

So, for Mr. Powell to get representation of his choice, Mr. Bailey and Mr. Ostrowski should either plunge head on into his representation and risk criminal prosecution afterwards, or file pre-enforcement actions in federal court as a matter of equal protection of laws, claiming that licensing authorities may not take from them MORE THAN LICENSING GAVE THEM - their license, and the rights it gives.

The decision is still a victory, even though a bittersweet victory.

The importance of it is still the wording that Mr. Powell has his right to "representation of his choice" that gives a rise to equal protection challenge for litigants in other forums where they cannot afford a licensed attorney and want representation by a person of their choice.

And, at the same time, by its vague, dubious and wiggly ruling that Mr. Powell can use Mr. Bailey's and Mr. Ostrowski's services, but Mr. Bailey and Mr. Ostrowski may still be exposed to violation of a court order of suspension for unauthorized practice of law, interpreted for "suspended attorneys" in a broader way than for people who were never licensed to practice law to begin with.

So, at least, the wiggly Pennsylvania decision gives rise to TWO due process and equal protection challenges, on both sides - by the litigant and by his representatives.

Let's look once again at the two sets of Pennsylvania law that the judge has quoted in his decision.

This is the governing statute defining who may represent claimants in unemployment benefits proceedings:

The court even quoted a decision that such representation does not constitute the practice of law.

Yet, the court also quoted this law:

where the words that prohibit "representing himself or herself as a lawyer or person of similar status", "rendering legal consultation or advise to a client" and "appearing on behalf of a client in any hearing or proceeding or before any 

  • judicial officer, 
  • arbitrator, 
  • mediator, 
  • court, 
  • public agency, 
  • referee, 
  • hearing officer
  • or any other adjudicative person or body
So, Section 214 of Unemployment Compensation Law allows Mr. Powell representation by Mr. Bailey and Mr. Ostrowski in front of a referee and an unemployment "adjudicative body".

Yet, Disciplinary Rule 217(j)(4) prohibits to Mr. Bailey and Mr. Ostrowski to provide to Mr. Powell such services, even though such prohibition goes far beyond revocation of a license and constitutes direct discrimination against Mr. Bailey and Mr. Ostrowski, as compared to people who never had a law license, depriving them of their due process right to earn a livelihood because they lost a law license - while allowing to engage in the same business activity to people who never had a law license.

Since law licensing is declared to exist in order to protect consumers, it makes no sense whatsoever to NOT protect consumers by allowing representation by people who never had a law license, and to attempt to protect them where they are already unprotected from representation by non-attorneys, by blocking representation by Mr. Bailey and Mr. Ostrowski, subjecting Mr. Bailey and Mr. Ostrowski to a disciplinary violation and, likely, to contempt of court proceedings.

Now, what constitutes contempt of court is a crime and criminal statutes must send PRIOR notice to all people to whom they are applied, otherwise they are nothing more than unconstitutional ex post facto law and bills of attainder.

The decision regarding Mr. Powell where the judge first cites a COURT DECISION (not a statute) as to what does or does not constitute the practice of law, and then is still unsure whether a certain act does or does not constitute the practice of law and simply ducks the issue as irrelevant to the proceedings, even though it is very relevant, because by tiptoeing around the issue in its fear to offend the organized bar, the court, as I said above, took from Mr. Powell with one hand what it gave with another - by putting the axe of criminal prosecution over the heads of the very same representatives whose representation the statute and the court allowed to Mr. Powell.

It was the same in the denial of reinstatement to Mr. Brandes that I quoted in the blog about New York discrimination where the court similarly determined what constitutes the practice of law based on a case, not a statute:

The practice of law involves the rendering of legal advice and opinions directed to particular clients" (Matter of Rowe, 80 NY2d 336, 341-342)."  This is the ruling in New York, of June 3, 2015.

This is a ruling from Pennsylvania of September 17, 2015:  

The "notice given backwards, after the fact" as to what constitutes the practice of law is present in both cases.

And, if what constitutes the practice of law is so unclear that courts cannot really decide what it is, it cannot be either licensed, nor can people be prosecuted, as a disciplinary matter, as a civil contempt matter, or especially as a criminal contempt or UPL (unauthorized practice of law) matter for violating this "I will decide what it is after you do it" law.

For practical purposes, the court put Mr. Powell in a conundrum.

The court actually said - Mr. Powell, YOU can get their representation, that is lawful, but I am not sure whether it is lawful for THEM to represent you.  So, the court left Mr. Powell in a conundrum, and Mr. Bailey and Mr. Ostrowskin in front of a dilemma as to whether they may represent Mr. Powell without the risk of being prosecuted.

I recently wrote about how the State of New York discriminates against "suspended and disbarred attorneys" in employment and business opportunities, as well as in criminal prosecutions, as compared with individuals who never had a law license.

Apparently, the same occurs in Pennsylvania, even though this case opened a crack for a challenge, and for a good expert, all that is needed is a crack.

And Don Bailey and Andy Ostrowski are professionals in civil rights law.

I wonder what will be the aftermath of this stunning decision, and will follow and report my findings.

Stay tuned.

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