"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, December 7, 2015

Federal Trade Commission's guidelines toll funeral bells to attorney licensing in New York

Recently, the U.S. Supreme Court issued a decision, North Carolina Board of Dental Examiners v. Federal Trade Commission where the U.S. Supreme Court declared that occupational licensing and discipline by members of the regulated profession may be in violation of federal antitrust law, without protection of the so-called "state immunity defense".  That was in February, 2015

On October 14, 2015, the FTC issued a press release introducing guidelines explaining how a state regulatory board can still get coverage under the state immunity defense, and what kind of conduct will not be covered.

Conduct NOT covered by the immunity defense, according to FTC guidelines, is:

  1. disciplinary proceedings according to a pattern or policy that can have a substantial anticompetitive impact on the market, where
  2. there is either no clear articulation of statutory authority of the disciplinary board to act in an anticompetitive way, or
  3. where the regulatory board is composed of super-majority of market players (instead of consumers of services in the regulated market), there is no active oversight by an INDEPENDENT government agency.
FTC Guidelines also provided certain examples as to what will NOT constitute an active market supervision, such as:

1) when the supervising agency itself consists of regulated market participants; and
2) if the supervising agent is State Attorney General, and he or she represents the regulatory board on an ongoing basis.

FTC Guidelines also provides that an individual who was a market participant does not cease to become a market participant for purposes of "active supervision" element of the "state immunity defense" if the individual becomes a public servant and stops practicing the profession for the time of participation in the regulatory board.

Now, how does all of this apply to attorney regulation in New York?


NOTHING in the attorney licensing statute, Judiciary Law Section 90, provides for attorney disciplinary committees.

NOTHING allows such committees to exist, or conduct investigations or prosecutions of existing attorneys.

The only "committees" provided by the regulatory statute are "fitness committees" that pre-screen candidates for admission to the bar, but have no clear statutory authority (or any statutory authority) to investigate an attorney or revoke his or her law license.

So, attorney disciplinary proceedings in New York are already failing one of the two prongs of the state immunity defense, and all attorney disciplinary proceedings in New York, consequently, are conducted in violation of civil AND CRIMINAL federal laws.  In other words, attorney disciplinary proceedings in New York are operated as criminal cartels.


As FTC Guidelines provided, active market supervision element of the state will not be met:

1) when the supervising agency itself consists of regulated market participants; and

2) if the supervising agent is State Attorney General, and he or she represents the regulatory board on an ongoing basis.

New York attorney disciplinary regulation fails the active market supervision test on both counts above.

1) The controlling agency is the New York State Supreme Court, Appellate Divisions.  Appellate Divisions are comprised of judges, all of whom must be market participants, licensed attorneys.  If a judge's license is revoked or suspended, the judge will cease being a judge, so the judge's regulatory supervisory function is conditioned upon approval of the judge's attorney license by the regulatory board that the judge supervises.  Obviously, such a dependency fails the active supervision test.

Appellate Judges in New York are not elected for life, serve only 14-year terms and, if not re-elected, return to their occupation as licensed attorneys unless they resign.  Thus, appellate judges are active market participants for purposes of "active supervision" analysis.

2) New York State Attorney General is not (at least not yet) the public official or agency appointed to supervise attorney disciplinary boards.  If he is, his supervision will fail the "active supervision" test because NYS Attorney General represents regulatory boards in an ongoing way, advising them how to conduct disciplinary proceedings in order to escape liability, and then representing them as an advocate in possible resulting civil rights lawsuits.

NYS AG's position as an advocate of attorney disciplinary board is incompatible with the necessary independent of the supervisor in order to meet the "active supervision" test.

And, finally, since there is a pronounced policy of attorney disciplinary committees in New York to target with discipline only solo, independent, minority, female, immigrant and civil rights attorneys, likely with lower fees and who more willingly and more often work at reduced rates or pro bono, and to whitewash misconduct of politically connected attorneys whose fees are higher, this anti-competitive conduct through attorney disciplinary proceedings may have a substantial impact upon competition in the regulated market.

So, the logical conclusion is that New York State attorney disciplinary/licensing system, as it exists today, operates in violation of federal criminal antitrust laws.

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