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.