"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 18, 2016

The mandatory D.C. bar inadvertently shows the true reason for attorney regulation - collective bargaining under the guise of help to consumers of legal services.

At this time, the U.S. Supreme Court is reviewing a case of a California teacher who brought a civil rights action under the 1st Amendment claiming she does not have to pay for "services" of teachers' labor union if she does not want to be part of that union and does not endorse political agendas promoted by that union.

The case had nothing to do with attorney regulation - because attorney regulation is declared to be done for the benefit of consumers of legal services, and the Freidrichs case was brought NOT pursuing the interests of students, consumers of teachers'  services, but between a non-unionized provider of services and the union of such providers.

 And, attorneys do not even have labor unions.

Yet, sometimes you need not to even give people enough rope to hang themselves - they willingly find that rope and use it.  

I would die to be the fly on the wall and know who compelled 21 former presidents of a mandatory federal bar association (the D.C. bar) to file an amicus curiae brief in support of California teachers' mandatory labor unions dues for non-members?  

But - 21 former presidents found that proverbial rope and used it to strangle all the remnants of legitimacy out of regulation of the legal profession, see their amicus curiae (friend of the court) brief here.

By drawing parallels between collective labor bargaining on behalf of service providers and the bar associations that combine the functions of a trade association (not a labor union) for the benefit of its members, and a governmental regulatory agency for the benefit of consumers whose interests may be against interests of paying members of such mandatory bar associations,  the conflict of interest in attorney regulation by attorneys became even more clear, as bar associations were directly compared, by attorneys themselves with collective-bargaining labor unions.

If attorneys, especially such prominent attorneys as 21 former presidents of a D.C. bar associations, come together and file a "friend of the court" brief to support collective bargaining of teachers as parallel of attorney regulation  - they acknowledge that attorney regulation is nothing but a collective bargaining regime that has nothing to do with protection of consumers.  

In their amicus brief, 21 D.C.-bar presidents argued the following: that a certain court U.S. Supreme Court case provided that "where a state establishes a legal entitlement to a benefit, it may compel those receiving the benefit to pay their fair share of the cost."

While that is a true rendition of what the U.S. Supreme Court said, it had nothing to do with attorney regulation.

Yet, the D.C. bar insisted on shooting itself in the foot by arguing that "the Abood/Keller line of cases represents a firmly rooted body of law upon which not only states and unions but also integrated bars, including the D.C. Bar, have long relied in structuring their activities." 

"Integrated" means mandatory.

If D.C. bar and other "integrated" bars were established on the principles of collective bargaining, they cannot also conduct "state licensing".

After all, labor unions are non-governmental organizations that do not engage in teacher certifications, even when they pretend to "promote quality education" while in reality they only protect those who pay their dues from competition.

Unless we have here a case of a contagious senility that suddenly affected all 21 former presidents of the D.C. bar association, all of these individuals are competent lawyers themselves, and are represented in their amicus curiae brief by competent lawyers, too, so they knew exactly what they are doing when they said that mandatory bars is basically, the same as labor unions.

And if they put their collective proverbial foot into their collective proverbial mouth - they have only themselves to blame.

From this point of view, Friedrichs is a very interesting case in favor of deregulation of the legal profession, and I will wait with interest as to how the U.S. Supreme Court will decide it.  

At least, it shows that the legal profession jumps up to protect their imagined interests even where - according to their own declarations for why attorney regulation exists - there should not be any interests at all, because it is not the same to protect interests of consumers, like attorney regulation pretends to do, and interests of service providers, like labor unions do.

So, the bunny ears are sticking out of the trickster's hat, aren't they?

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