"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.

Tuesday, February 9, 2016

ABA continues to protect its turf

Today, the American Bar Association adopted new "model" approach to attorney regulation.

Missing in the approach is compliance with federal antitrust laws and allowing consumers of legal services a say in how their interests are allegedly protected by attorney regulation.

The "new" approach did not change the ABA's position on unauthorized practice of law (UPL) - criminalizing conduct that the law does not define.

Oh well.  To expect logic, fairness and compliance with the law from the "legal" elite...

One thing that stands out though - while retaining its previous position on UPL, the ABA made an astonishing move by expressing possible acceptance of including non-lawyers into provision of legal services.

Provision of legal services by non-lawyers is not such a radical idea.

First, consumers must have their own choice to say "no" to any occupational regulation and to choose providers as they see fit, without paternalistic protection from the state.  I wrote about it on this blog earlier.

Second, FEDERAL constitutional "right to counsel" does not presuppose right to counsel LICENSED (authorized) to give advice by state government - and that is especially try when that same state government is being sued by the consumer of legal services.

A good example was when the State of New York suspended my law license when I was suing the State of New York, right before my deadline to file a Rule 11 motion for sanctions against the State of New York.  I don't think that any consumer of legal services in his/her right mind will give SUCH control to your opponent over your own attorney's law license.  And I do not think that that particular legal consumer who would be stripped of an attorney by the defendant-government will accept that it was done for his own protection (which is what attorney licensing is declared to be for).

But, back to ABA's new resolution.

Here it is, announced on Twitter:

Here it is, in full glory:

 So, ABA "urges that each state's highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court's existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers".

One thing is - this "urging" directed at COURTS is completely illegal.

It is not the courts, but the state legislatures that enact unauthorized practice of law CRIMINAL statutes, and it is not within the courts' power to change that - as an attorneys' association, ABA must realize that.

Provision of legal services by "non-traditional legal service providers" is the same as provision of legal services by non-attorneys which is UPL.

That requires change of UPL statutes - by state legislatures.

But, the "Resolution" is not directed at state legislatures, and ABA also indicated, in the same "Resolution", that it does not change its position against non-lawyer ownership of legal firms - something that may infuse new life into the legal profession and encourage innovation and diversity of services, wider availability of services to underserved populations and drops in prices for legal services which recently reached - for at least some corporations - the mark of $1,500 per hour.

Even in this castrated version, the "Resolution 105" met with vigorous resistance from some state bars.

And you know which state bars were fighting against inclusion of non-lawyers into provision of legal services?

The two states that were recently prominent in the news in demonstrating how lousily they regulate their attorneys:

Texas waited 10 years after reversal of a wrongful criminal conviction to disbar a state prosecutor who, through his misconduct, obtained a criminal conviction and sent an innocent person to death row.

The other one is New York - the state where:

1) two attorneys, leaders of both the State Senate and the State Assembly, were recently convicted for felonies - that is Sheldon Silver and Dean Skelos, but who proudly continue to be licensed attorneys (even though in New York disbarment on conviction for a felony is automatic) and collect $100,000 state pension:

2) several prominent Manhattan attorneys - including a recent president of the same American Bar Association - gave money-laundering advice to an undercover investigator in an international corruption sting;

3) where the number of wrongful convictions is staggering, but where, instead of addressing the problem, the state District Attorney association is lobbying the Senate to prevent introduction of a bill that will create a separate Commission for prosecutorial misconduct, because the current attorney disciplinary committees refuse to prosecute prosecutors involved in misconduct and in obtaining wrongful convictions;

4) where a prosecutor, Westchester County DA Janet DiFiore, who was involved in massive misconduct and likely criminal activity on a large scale, over several years, was just confirmed and sworn-in as the Chief Judge of the State Court System; and where

5) another prosecutor, Thomas Scopa, Suffolk County DA, a prosecutor "famous" for having criminal charges filed against Philippine nurses and their attorney tossed by the 2nd Department because they violated prohibition on SLAVERY (think about that, a prosecutor who was trying to coerce 13 temporary female immigrants into slavery in year 2009, in the 21st century!!!) and the attorney's 1st and 14th Amendment right to give advice to his clients within the boundaries of the law - that famous guy's office is now investigated by the feds for his role in a potential cover-up of misconduct of his former longtime friend and investigator in an assault on a person involved in alleged theft of - prepare yourself - reportedly a duffel bag full of DVD porn and sex toys.

Suffolk DA's office is subpoenaed for its potential role in using court-authorized wiretap to conduct surveillance of conversations that had nothing to do with the purpose of the wiretap, and exposed misconduct of the DVD and sex toys' owner, the Suffolk County Police Chief. 

And, what did Thomas Scopa did in reply?

Blamed the press for doing investigative reporting of potential misconduct.

That's a classic knee-jerk response of a caught public official that was also just demonstrated by Rudy Guliani in his attacks on Beyonce - blame the messenger, not the perpetrator.

That is the state of New York where attorneys overpower all branches of the government, where they claim on record that they "run the country", make and enforce laws in their favor.

That is the state where only attorneys are allowed to "screen" judicial candidates, pick and endorse judges - and testify to the Judiciary Committee before the Senate (the Committee also headed by an attorney, a complete conflict of interest).

This is the state where bar associations pay for experts to testify in favor of judicial pay raises for their license regulators, as the New York Bar association did to give its regulators a gift of several tens of thousands of dollars per year, at the expense of taxpayers.

This is the state where regulation of attorneys clearly and defiantly violates clearly established federal antitrust civil and criminal law and is operated as a criminal cartel where the "regulation" is done by super-majorities of attorneys weeding out competition and critics of misconduct, and where no voice is given to consumers in how they are "protected" by such regulation.

And this is the state where the President of the bar association recently lamented about customers' preference to buy legal information separately and legal services - maybe, and claimed that legal services should be bundled with legal information (thus insisting on monopoly of information about the law, which is a matter of public record).

In all this scheme of things and "urging" and "advising" and "resistance", there is no indication - NONE WHATSOEVER - that the American Bar Association or any participating state bar associations - even tried to poll opinions of consumers of their services, and not multi-million dollar corporations, but average Americans.

Nobody from ABA apparently tried to ask the consumers:

1) whether they are happy with legal services being regulated by the government;

2) whether they would prefer to choose their legal providers themselves and to have the legal profession deregulated - especially because discipline targets attorneys who sue the government and represent the most under-served classes of legal consumers, criminal defendants and civil rights plaintiffs; 

3) whether they would prefer to have an option to choose a provider of legal services who would not be licensed, a trusted friend who knows the law;  and

4) whether, if they would prefer to keep the legal profession regulated - for their benefit, as is the declared purpose of attorney licensing (not protecting the markets of legal servics from competition) - they would also prefer to have super-majorities of non-lawyers, consumers of legal services, on regulating panels, so that consumers can decide themselves how to regulate the legal profession for their own benefit.

There was not a peep about asking legal consumers as to what they want.

And this omission speaks louder than any assurances that ABA wants attorney regulation to continue ostensibly for the benefit of consumers of legal services.

The greedy ears are sticking out of the hat.  

And those ears stink.

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