"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, January 25, 2016

On dangers of humility

I wrote a blog post yesterday about 19 unconstitutional rules pertaining to the status of a suspended attorney in the U.S. District Court for the Eastern District of Tennessee.

Now I would like to separately stress the issue that a suspended attorney actually inflicted these 19 unconstitutional rules upon himself - and upon every other suspended attorney in that district - by making a motion ASKING the court to determine his status, rights and obligations as a suspended attorney.

We are dealing with notice of prohibited conduct prosecutable as two different crimes - unauthorized practice of law and contempt of court.

And, we are talking about federal court.

And, criminal conduct, whether under state law and federal law, is statutory - not provided by judicial rules.

So, notice of prohibited conduct should also come in advance - and only through a statute.

And if there is no statute that would give a person (a member of the public who never had a law license, or a suspended or disbarred attorney) notice of (1) what is the practice of law and (2) what is unauthorized practice of law - once again, in advance, by statute - then, there is no such notice, and people are simply not prosecutable for unauthorized practice of law or contempt of court (for violation of orders of suspension or disbarment).

Yet, many jurisdictions put notice in criminal proceedings in regards to the specific crimes regarding the practice of law on its head.

Now, an individual who MIGHT THINK that his or her actions MAY violate the unclear statute - should themselves file motions with the court asking the court to give them such notice that will be binding on them personally.

That is - instead of engaging in such conduct up front or, if there is a fear of criminal prosecution, filing a pre-enforcement constitutional challenge to the vague UPL laws.

The more such challenges will be brought, the faster the regulatory scheme built on the sand of "nobody-can-define-what-it-is-but-it-is-still-prohibited-without-a-license" will fall.

Asking a court to legislate from the bench and give you an advance notice of what the criminal statute does not define is the type of humility that does disservice to people who bring such motions, and to the community at large who will be then hounded with the 19-piece wonder like I described yesterday.

Notice of criminal conduct is given:

  1. through a statute only (prohibition against legislating from the bench, separation of power, for federal judges - Article III limitations);
  2. by the Legislature only, and
  3. in advance of the actual conduct only (ex post facto clause of the U.S. Constitution);
  4. and through a statute that is constitutional.

It's Criminal Law 101.

If notice of prohibited conduct is not given by the government to all members of the public in the above way, there is no legally valid notice, and there can be no criminal prosecution.

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