The 1st Amendment of the U.S. Constitution that every judge and
every attorney takes an oath to uphold, contains the following:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof".
Yes, the Establishment Clause.
Church is separated in this country from the State, and the State may not run any of its organizations on requirements of faith, or consider belonging to a church as a factor determining whether a candidate should be given permits by the government to earn a living in his chosen profession.
Yet, that's exactly is what is happening in occupational licensing and especially in the legal profession.
Consider, first, that a lawyer who, once again, takes an oath of office on admission to uphold the U.S. Constitution and its 1st Amendment (including the Establishment Clause that applies to the states, too) is supposed to maintain public trust, or confidence, or, basically, faith in the "integrity of the legal profession", or in the "integrity of the judiciary".
First of all, the only oath of office that a lawyer takes is to strive to uphold and enforce the U.S. and State Constitutions and other laws.
Second, the oath to follow the law is not a pledge of loyalty to the government.
We have a popular sovereignty in this county ("We the People"), and criticism of governmental misconduct is not an act of disloyalty to the law in a democratic society such as the U.S. claims itself to be.
Third, maintaining an illusion that the government is good and sound when it is not so is a betrayal of the oath to protect the U.S. Constitution.
Yet, the legal profession continues to expel lawyers who criticize misconduct of government officials, and especially the most powerful ones in this country, judges.
Admission and expulsion from practicing a licensed profession should be straightforward.
If licensing is done to protect consumers of legal services, the only criteria in admission and in expulsion from the profession is:
(1) will the candidate be providing good services to the consumer or not (for admission), and
(2) did the licensed professional hurt his client's rights by his incompetence or misconduct or not.
Whether by his actions on behalf of a client the professional "put the profession in a bad light", or "put the judiciary in a bad light" should not be a consideration at all, because then it becomes a political issue of content-based regulation of speech - especially when the licensed professional is expelled from the profession for criticism of misconduct of government officials, including those to whom regulation of the profession is delegated.
Moreover, whether a candidate will or will not be providing good services to consumers, is a guessing game of such a subjective nature that it is in itself unconstitutional.
There are a lot of licensed attorneys who are not disbarred only because of their connections and who are incompetent or dishonest.
There are, on the other hand, people who have no formal education and who have criminal felony convictions, but whose knowledge of the law is so good that they beat the claimed "best of the best", Harvard Law students.
The convicted criminals in this situation would provide better legal services than the elite arrogant licensed attorneys with connections, but no real knowledge or willingness to work for their clients, especially when it comes to raising "sensitive" issues, such as criticism of a judge on a motion to recuse.
Moreover, Establishment Clause issues are prominent in admission or reinstatement proceedings into licensed professions.
In reinstatement process in Mississippi, a disbarred attorney claimed he belonged to a church, a factor that should be irrelevant for consideration whether a person should provide legal services and represent other people in court.
Another petition for reinstatement to the bar in Mississippi, the candidate also claimed that he belonged to a church to prove his "moral character and fitness" to provide legal services.
It was noted in denial of his reinstatement that the candidate admitted that, though he belonged to a Lutheran church, he did not frequently attend services because of illness of his mother.
Both reinstatement decisions (denying reinstatement) considered that the candidates did not involve themselves in "civic or professional organizations".
This is not how a consumer would be choosing a lawyer.
A consumer does not give a rat's behind whether the lawyer or other licensed service provider goes to church, donates to charity, volunteers in a hospice or as a firefighter, "serves" on any "boards" or belongs to any other civic or professional organization.
Actually, we know that "serving" on such "boards" can be done not out of the goodness of one's heart, but for self-serving and mercenary purposes.
Consider the "service" of attorney Thomas Schimmerling on the board of directors of the largest no-bid contractor of Delaware County (NY) while not paying over $14,000 in taxes. Mr. Schimmerling robs the poor population of the Delaware County twice, by not paying his taxes and by promoting the business of the non-profit he "serves" through no-public-bidding multimillion contracts extracted out of poor taxpayers' pockets.
Fraud in non-profits is such a big problem that it is no longer an illustration of "good character" to say that a candidate for a licensed profession "serves" on a "board" of some non-profit.
And, a consumer would more likely to choose a service provider who dedicates his or her entire time to providing services to his clients rather the one who splits his time between his business and so many "causes" that the consumer starts to wonder where does the service provider gets the time to do all that the provider claims he is doing.
When the consumer's life, custody of children, property or life are hanging in the balance, the consumer's choice of a defender of his interests will concentrate exclusively on how well that defender knows the law and can argue his case.
Many judges and lawyers running for judicial office, as well as many attorneys attempting to get reinstated to the bar, point out that they belong to a church.
As I said above, if they are given more credibility because of it, that is an Establishment Clause issue, as well as an equal protection issue.
Why equal protection?
Consider the following scenario.
An attorney seeking reinstatement to the bar claims that he or she is a member of the following religions:
(1) a Muslim and that he faithfully practices Islam - at the time when, according to polls, anti-Muslim bigotry is at its worst now, and many Americans think that practicing Islam is "at odds with American values";
I bet, the attitude of the mostly white Judeo-Christian licensing boards to a Muslim will be little better than the attitude to a:
(2) wiccan - and he or she faithfully practices "skycladding", practicing the religious rites in the nude;
(3) Mormons - and he faithfully practices plural marriage;
(4) Satanists - and he faithfully practices animal sacrifices (distasteful, but legal);
(5) faithfully worships some ancient gods in ancient ways - by group sex, for example.
I doubt very much that faithful adherence to such religious tenets will be welcomed by the "character and fitness" boards, mostly Judeo-Christian and mostly white, and that is an Establishment Clause (1st Amendment) and an Equal Protection Clause (14th Amendment) problem.
To further explore the dangers and the illegality of "moral character" determinations when the government doles out permissions or prohibitions to earn a livelihood, I encourage my readers to read a brilliant article exploring the "ethics of moral character determination", covering the history and ethics of "moral character" determinations in occupational licensing.
Enjoy.
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