"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, November 7, 2015

#LoveYourLawyerDay - the desperation sets in

The American Bar Association called for a #LoveMyLawyerDay to be celebrated on the first Friday of November - that was yesterday.

Many bar associations and law schools followed.

There is, of course, a fury of Tweets and Facebook postings on the subject, some of them pretty interesting.

Here they are.

By the way, this particular lawyer joke came from a real judge from Texas whose wife served in the U.S. Senate and in the White house.  In answer to a day established by the ABA to fight lawyer jokes, the judge posts a lawyer joke that says that the only people who need that day are lawyers themselves.

Great support.

This one comes from the NYS Assistant Attorney General Andrew Ayers, by the way.

By the way, I am not the only one who is questioning "the wisdom", as the Wall Street Journal politically-correctly put it, of this "plaintive plea" to "love me and my profession".

The whole idea of the #LoveYourLawyerDay was spawned by the American Bar Association, through this so-called document

So, the public thinks that lawyers' contribution to society is low - based on opinion polls.  The solution?  #LoveYourLawyerDay.

The public perception of lawyers "on honesty and ethics" is at 21%, which is "unsatisfactory" to the ABA.  Not because of whether public perception of lawyers is reasonable and based on facts of self-dealing and corruption by the legal profession, lawyers, prosecutors and judges, who block access to justice for the overwhelming majority of Americans by keeping access to the profession restricted, by fixing the rules favoring the profession and disfavoring pro se representation in litigation, by buying judges through campaign contributions and out-of-court boons like paid trips, speccing engagements and free drinks and meals at receptions, among others.

So, where public perception of a certain profession is that the profession is DIRTY and UNETHICAL, the solution for it is:

  1. not to investigate whether the perception is right, but
  2. paint a big pink heart upon the legal profession and tell everybody to just love those rascals for one day.
Because - you know what - they do pro bono hours.  Well, at least, some of them do.  Some hours.  Not many hours all in all.  Not as many hours as needed to close the "access to justice gap", which would not have existed in the first place if the legal profession would simply be deregulated.

Of course, those pro bono hours are like a band aid upon a ship wreckage.

Of course, those pro bono hours would not be needed if the legal profession is simply deregulated - and the public can then choose cheaper providers of legal services on their own.

Look at how arrogant the American Bar Association is in their little "make the public to love lawyers even if it has no reason for it" resolution.

Remember the polls?

That the perception of the public is quite opposite?  That the public believes the legal profession as a whole is dishonest and unethical - with plenty of evidence to support it.

So, the solution is to jam the love out of the public and to make the public celebrate the people the public distrusts and considers dishonest and unethical.

The solution is to make the public "express their gratitude" for the "affirmative contribution to the public good and the administration of justice" of those very people that the public considers dishonest and unethical.

Pro bono services are good, but they are a drop in the bucket of legal services which are overpriced and corrupt and they will never fulfill the unmet need of legal services that could be easily met by lower-priced service providers if deregulation occurs.

Moreover, I remember how my contracts law professor (a very good CONTRACTS law professor) was mentioning casually in a lecture that he was doing pro bono work in a criminal case.

I wanted to kill him.

Criminal procedure in New York, as in every state, is something you cannot casually walk in, do it and walk away.

In fact, a person who has no legal training, but is dedicated to this particular issue and reads on this particular issue, can provide a good representation, but I doubted that the busy contracts law professor was interested in criminal law to the degree of providing true expert representation in a criminal case.

People need in court not just a warm body with a license.  They know somebody who knows what is going on and whom they can trust not to sell them out, and, unfortunately, pro bono people usually do not go to trial, are there to get a limited number of hours under their belt and report it, and thus, often a person is better of on his or her own or represented by a knowledgeable neighbor who he can trust and who cares, rather than by such "pro bono" lawyers.

Supporting "charitable causes" is good, even though it is an optional activity for a lawyer as a citizen and is not part of the lawyer's duty to a client, so it should be celebrated as a trait of the legal profession, because it is not part of the job of a lawyer.

It is the same as celebrating the plumbers' profession for doing charitable things in your community. 

Now, plumbers is a profession as good as any, and plumbers can engage in charitable work as well as anybody else, yet, plumbers are not trying to promote their profession by a #LoveYourPlumberDay asking the public to celebrate charitable contributions of plumbers to society, because - guess what - it is business advertising.

As well as the #LoveYourLawyerDay.

It is a business advertising.

Of a sinking business overall.

Of a business that hurts the economy, prevents people from obtaining true remedies for real injuries, and advances corruption of public officials.

And, promoting the administration of justice that ABA calls for through #LoveYourLawyerDay is extremely problematic.  

Regulation of the legal profession by a branch of the government whose misconduct the legal profession must bring up in defense of their clients prevents proper discharge of duties by the legal profession and makes "promoting the administration of justice" impossible.

So, as NY Assistant Attorney General Andrew Ayers said in his tweet, the whole #LoveYourLawyerDay feels "a bit like a cry for help".

No, not "a bit".

This cry for help came at the time when occupational deregulation in general - and deregulation of the legal profession specifically - is seriously coming from the fringes into the mainstream of ideas.

And a plea for love by the rich-but-sinking ship of legal elite appears not just "a bit" like a cry for help.

It is a cry of desperation.

And - remember - regulation was done in the first place (allegedly) for the benefit of the public, for the benefit of consumers.

Of course, an offer of help to consumers should not come with strings attached, prohibiting at the same time free choice of service providers - which happened in the market of legal services.

And, the regulation is done actually by supermajorities of attorneys, and legal consumers are not allowed near that regulation, so the regulation is actually all a sham and federal antitrust criminal activity to quash competition and hurt consumers.

The quashing of competition is against small lower-cost service providers who actually cater for poorer people and more vulnerable populations, and attorneys for the rich and for large business habitually escape discipline through their political connections.

The best solution for the justice gap, to vastly expand the market of legal services, will be deregulation.  

And the only cost of such deregulation will be a cost to attorneys who went to expensive law schools and want a quick return on their investment expensive tuition.

Which is not a good reason for the consumers not to push for deregulation - because the regulation was meant to protect them, the consumers, not the lawyers' markets and high prices. 

So, love your lawyer, if you want.  Today, or every day of the year.

But, let's still deregulate the legal profession.

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