"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

When unauthorized practice of law is required under the threat of criminal contempt of court

I am doing research on attorney regulation across the United States, and, among other issues, rules pertaining to conduct of suspended and disbarred attorneys.

In many jurisdictions I find the following nonsensical rule:

when an attorney's law license is suspended or revoked, the attorney has to:

1) notify the courts, opposing counsel and now-former clients in pending litigation of his or her suspension (which makes sense), and, if the now-former clients do not appear within a certain time in those cases with new counsel, then

2) the suspended or disbarred attorney - an individual who has NO license to practice law (since the license is suspended or revoked)  - is REQUIRED to make a motion to courts, on notice of all parties, asking the court to allow the person to withdraw from representation in the case.  And, that motion must be made as if the suspended or disbarred attorney is now a party in the proceeding - which he or she never was to begin with.  So, now the individual is forced to appear as a party in the proceeding.

Normally, there is a restricted number of ways how an individual or entity can become a party in a court proceeding.

In civil proceeding (I go by New York rules) a party can consent to be a party in court proceedings by:

1) commencing a lawsuit or;
2) intervening into an existing lawsuit;

or the party can be brought into a court proceeding involuntarily by

3) being sued by another party, or
4) by being interpled into the proceeding as a third party defendant.

In all of these four scenarios courts play no role and may not mandate an individual or entity to become a party in a court proceeding.

The rule does not describe which party the suspended or disbarred attorney should become when making a motion requesting the court to allow him/her to withdraw from the case.

So, the suspended attorney must ENTER the case AS A PARTY where he has never been a party and where he has been only an attorney representing a party (which representation ended by operation of law once his license was suspended), and then ask the civil trial court to allow him to LEAVE the case.

A mandate to make a motion to enter in order to be allowed to leave is crazy where:

1) an attorney has no personal stake in court cases where he represents clients, but is not a party;
2) thus appearing as a party when you are not a party is frivolous conduct and wasting scarce court resources;
3) making a motion entering a case as a party to withdraw as a party is crazy;
4) making a motion entering a case as a party to withdraw as an attorney after the attorney's license is already suspended is unauthorized practice of law - and is crazy.

The rule is even crazier when applied to criminal cases where only two sides are allowed - the People (the prosecutor) and the criminal defendant.

Which "party" is the suspended attorney supposed to be on motion in criminal cases? 

It appears that courts do not give much thought to rules regarding suspended or disbarred attorneys, because these rules are meant to scare, and, thus, apparently, do not have to make sense.

I understand the need for greed - having a suspended attorney add to state coffers by having to file motions in every case and pay filing fees in all courts, but let's get real.

An individual who is PROHIBITED to practice law, is REQUIRED to practice law (make a motion on behalf of another) in order to be allowed to comply with the court order that prohibits him to practice law. 

And, if the individual does not comply with this rule forcing him to commit a crime of UPL, he or she is then exposed to another criminal prosecution, now for contempt of the court order of suspension or disbarment.

So, if the order of suspension is not enough to stop legal services in all court cases by operation of law, and additional motions are required in all cases separately, then the orders of suspension are not valid final orders, and it is the lower court and not the appellate courts who are the true regulators of attorney licenses - which is not what regulating statutes say.

And, if the order of suspension is not enough to stop an suspended attorney's authority to practice law on behalf clients, and additional decisions on motions, by multiple lower courts, in every single case the suspended lawyer has are required - then the order of suspension is not lawful, and the suspended attorney is not chargeable for contempt of court for violating such an unlawful and insufficient order.

On the other hand, if orders of suspension and disbarment are lawful - states and federal jurisdictions are violating suspended and disbarred attorneys elementary due process rights by REQUIRING them to VIOLATE THE LAW (UPL) as a condition of complying with a court order of suspension that prohibits them to practice law.

This rule which - the polite way to say it - lacks any rational basis, or, to put it bluntly, is simply raving crazy, is present in many post-suspension rules in many jurisdictions, state and federal.

So, if you are a suspended or disbarred attorney, the state requires you, for protection of the public no less, to violate criminal law in order to comply with it.

If the judiciary cannot make rules for regulation of the legal profession that are not looney, how can they make any day-by-day decisions at all? 

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