"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.

Monday, November 2, 2015

Against declining Russian economy, Russian attorneys are moving in for the kill (oops, monopoly)

I am covering issues of attorney independence around the world, and I am, of course, interested in how such issues are handled in my native country, Russia.

So far, in Russia your trusted neighbor could represent you in court, other than in criminal cases, as long as you, once again, trust him or her and gave him or her a power of attorney to do so.

That is about to change, possibly, soon.

It is no big secret that the Russian economy has been suffering greatly recently due to actions of its leadership.

As a result, the market of all paid services has dwindled.

At that background, Russian attorneys did the same as American attorneys did after the Great Depression - moved for a monopoly for legal services under the guise of protecting consumers, but in fact protected their own market from competition that could have lowered prices for services of legal elite.

Of course, the legal elite in the U.S. (as it will, undoubtedly, do in Russia), does not want those same consumers to participate in regulation that is claimed to be for consumers' benefit, instead establishing super-majorities of market players to regulate themselves, quash competition and grant or revoke state licensing as personal favors or punishments.

As reported by Russian sources covering developments in the market of legal services, on October 27, 2015 the Russian Ministry of Justice held a meeting to finalize conceptual rules of regulation of attorney's monopoly for representation in court (the linked resource is in Russian) - of course, under the guise of preventing "crooks" from defrauding innocent consumers.

As we know from experience in the U.S., the crooks are, in fact, inside, the legal elite that, under the guise of protecting consumers, is protecting their own market and applies attorney discipline only to critics of their misconduct, while allowing members of the "old boys' club" to get away with murder, as long as the "old boys" (or girls) are well-connected or related to high-ranking members of the government of any branch, on state or federal level.

Questions arise:

1) if it ain't broken - why fix it;

2) doesn't anybody learn on other people's mistakes?  should everybody step on self-created rusted rakes in order to first suffer and then - years and decades down the road, after thousands and, possibly, millions of people suffered from that mistake, try to start deregulating the "noble profession", as the process began in the U.S. and is well under way in the UK and some other European countries?

One more thing - Russian attorneys do not take into account that the gifted cage they are getting themselves into provides not only the upside (monopoly), but also a huge downside (dependency on government favors for their livelihood).

And that in return for monopoly for the profession as a whole, especially given Russia's recent history, court attorneys may be paving for themselves a road to GULAG.

Because it is a matter of time when a case turns up when an attorney will not be able to stand aside and will have to take a position, possibly a position that the government will not like.

And the attorney will quickly be disbarred, blacklisted and will not be allowed to work even as a janitor in a law firm, despite the attorney's ability to help people, and an unmet need for court representation in the attorney's specific area of law.  

By locking themselves in this guilted cage, Russian attorneys strip themselves of their independence and of their freedom of speech and freedom to actually help their clients and at the same time earn their living by making necessary and honest arguments to the court, not stake their living upon brown-nosing judges at every turn, as American attorneys are forced to do.

Isn't that a little bit too much of a loss, even in return for a monopoly?

No comments:

Post a Comment