"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.

Thursday, February 11, 2016

Albany Law School legal ethics Professor Brescia inadvertently acknowledges the dirty little secret of the legal profession - the regulation of the legal profession by the government, allegedly to protect the public, is a fake

Professors of legal ethics are supposed to teach about legal ethics.

And while teaching about legal ethics they are supposed to be ethical themselves.

Yet, a legal ethics professor who testified before the New York State Commission for Attorney Discipline told the Commission that it is unnecessary to teach students about the workings of attorney disciplinary system, because if they would know of its shortcomings, they may engage in unethical conduct.

The professor thus demonstrated a lot of faith in the legal profession as a whole and in the integrity of his student body in particular.  Apparently, the only way to have a future lawyer to behave ethically is to deceive him and not to give him information about how to defend himself if charged with an ethical violation.

Albany Law School Professor Ray Brescia continued in Professor Mills and Gilberts' footsteps of making deliriously inadequate public statements - by attempting to teach non-regulated professions how to pretend to be regulated, in order to avoid real regulation by the real, neutral, watchful and efficient (his word is "intrusive") agency of the government.

In an article published yesterday in Huffington Post, named "How to Regulate the Sharing Economy? Look to the Law Governing Lawyers", Professor Brescia makes some interesting points.

He started his article benignly enough, by stating this:

"Whether it is ride-hailing services, the opportunity to rent a spare room for a short-term stay, the chance to participate in an on-line auction for Star Wars memorabilia, or the excuse to purchase artisanal jewelry, Sharing Economy platforms are connecting consumers to providers in new and technology-enabled ways, making life easier, more convenient, less expensive, and maybe a little more interesting."

So, Professor Brescia, a professor of legal ethics, suddenly became interested in providers of services who invade a turf of licensed service providers - such as licensed taxi drivers vs. Uber.

The interest of a legal ethics professor to the "Sharing Economy" and giving the UNREGULATED "sharing economy" trades an unsolicited advice as to how to regulate themselves is already an interesting choice of topic.

While being a professor of legal ethics (which are governed by lawyer-invented rules for lawyers), Professor Brescia is not an expert on occupational regulation at large, does not have business, economic or management education and is definitely treading upon the turf where he has no expertise.

He is doing it "coincidentally" at the time when the American Bar Association has issued a Resolution 105 grudgingly conceding to not fight too much if states start to allow "non-traditional legal service providers" to provide legal services - and did that against the resistance of the New York State Bar Association fighting the unbundling of legal services into provision of information - separately, and legal services - separately, and fighting it viciously and in completely uncivilized (and unethical) language.

Professor Brescia is fully aware of the "disruption" of the legal profession by emerging potential new service providers - he even cautiously welcomed it in his recent article, and here is the abstract of the article:


The legal profession is in the midst of a disruption: a monumental, transformative shift in shape and focus that will change the practice of law forever. Some lament this phenomenon. Some worry that it signals the end of Big Law, and that it will have ripple effects throughout the legal industry. Many assess the impact of these disruptions on the delivery of services to wealthier clients and corporations, who, in many instances, are the only ones able to afford lawyers in the U.S. legal market in the first place.

Clayton Christensen has coined the term the "Innovator’s Dilemma" for the phenomenon of business disruption, through which high-end producers of goods and services are "disrupted" by those entering the market on the lower end. Those disruptors are first ignored by incumbents and then those entrants find ways to serve a larger and larger segment of the market, eventually displacing the incumbents. If this theory is to be believed, true change in the market for the provision of legal services will not come from those serving wealthier clients, where many today look for the impacts of disruptive techniques and technologies. Instead, true disruption is likely to come from those serving the "lower end" of the market: the solo practitioners, legal services lawyers, and "low bono" providers of legal services. It is innovation in these corners of the market where pathbreaking disruption will take place, mostly out of necessity. What’s more, it is the low end of the market that is actually quite robust: i.e., there is a desperate need for legal services, just an inability to pay for them.

Disruption of the legal services industry has the potential for bringing real benefits to low- and moderate-income consumers of legal services. What this Article attempts to do is identify ways that disruption can occur in the provision of legal services to improve access to justice, particularly for low- and moderate-income individuals and families. While many recent entrants into the market for legal services risk running afoul of charges of unauthorized practice of law, those who are providing free services through the internet appear to be acting in compliance with lawyer rules of professional responsibility. This Article will review both the for-profit and non-profit models of technology-enabled legal assistance and assess the extent to which each may comply, or not comply, with unauthorized practice of law requirements. It will then review current efforts of non-profits to deliver technology-enabled services, and describe one initiative in detail that involved the creation of a web-based application to assist homeowners facing foreclosure in New York State.

Given the need in low- and moderate-income communities for affordable legal services, perhaps disruption in this market has its benefits: at a minimum, it offers a way to improve access to justice for communities and individuals underserved by the present — and expensive — modes of delivering legal services in the United States. This article explores those benefits, but also highlights some of the concerns that arise when technology is used to improve access to justice.


Professor Brescia is even aware of the "justice gap" where too many law graduates do not have jobs while too many Americans cannot afford an attorney.

Professor Brescia's solution for that? (Remember, Professor Brescia is not an economist) - More funding for "legal aid" services, which, of course, should come out of the pockets of the same American taxpayers who cannot afford those legal services directly in the first place.  

Yet, Professor Brescia, not being a specialist in business or economics, does get interested in certain business theories - such as the theories of "disruptive innovators".

Apparently, Professor Brescia is aware of the work of a Harvard business professor Clayton Christensen, of his concept of "disruptive innovation" that was coined in 1995 as a general theoretical term of business development and not in connection with legal services, but reaching the legal profession in earnest only now, with the rapid proliferation of information technologies that take away from lawyers the monopoly to disperse legal information (for a hefty fee), a disruption that got NYS Bar Association President David Miranda all fired up.

With that background on Professor Brescia in mind, let's see where his interesting interest in what has nothing to do with the legal profession led him, and his amateurish, but self-interested advice as to how to regulate unregulated businesses that have nothing to do with the legal profession.

"Self-interested" because Professor Brescia is also a licensed attorney, and thus is not a neutral expert on issues of regulation of the legal profession.   

In his article, Professor Brescia, in fact, attempts to fight against encroachments upon his own turf as a licensed attorney - whether such fight promotes and prolongs the justice gap he laments about or not.  

After all, Professor Brescia is educated in the elite Fordham University and in the elite Yale School of Law and is very far away from the economic and civil rights reality of the justice gap, while his own livelihood is, of course, important to him and trumps any justice gap issues.

Professor Brescia mentions in his article that "what companies in this Sharing Economy are doing is disrupting incumbent industries, upending regulatory schemes, and challenging the legal infrastructure and the governments that oversee it" and indicates that governments, from Europe to the U.S., take "wildly different" approaches to regulation of such emerging and unregulated service providers.

Then, Professor Brescia pays lip service to the declared purpose of governmental regulation over professions: "Regulation in many of the industries where Sharing Economy platforms are thriving serves an important consumer protection purpose", and points out that people who engage in earning a living do it - gasp! - for a profit!  That is something new, isn't it? ("Even though Sharing Economy companies strive to serve the common good, they are also out to make a profit.")

I wonder if Professor Brescia works without compensation at Albany Law School.

I also wonder whether Professor Brescia was paid for his article about regulating the "Sharing Economy" providers, and if he was, then who was his sponsor and how much he was paid.

Professor Brescia then (remember, he is NOT an expert in occupational licensing) tries to teach the poor sillies in the unregulated market to embrace the government regulation as a way to gain "more economic activity":

"When it comes to regulation, however, what many are saying is "trust us, don't regulate us."  But what Sharing Economy platforms don't seem to understand is that regulation can actually lead to trust, which can foster more economic activity."

Let's remember that statement for the future.  Professor Brescia thinks that occupational regulation "can lead to trust", and that the trust created by occupational regulation "can foster more economic activity" for the regulated profession.

Because after advising the poor sillies of the "Sharing Economy platform" to embrace regulation, Professor Brescia drops a bomb - like this:

"There is another industry that has, for centuries, operated under the notion that some regulation is actually good for business, but it opts to regulate itself as a way to fend off more onerous regulation. Let us regulate our profession ourselves says this industry and stay out of our business model.  Malpractice lawsuits on the periphery, for the worst cases of abuse, are fine, but, leave the regulation of the profession to the profession. That industry is the legal services industry."

By the way, Professor Brescia explores his interesting claims even in more depth in his forthcoming new article.

What is wrong about Professor Brescia's claims?

Let's start.

As I said above, Professor Brescia is NOT an expert in occupational regulation as a whole, and he is NOT an expert in business, he does not have either a Masters or a PhD in business management or economics (by way of disclosure, I have a Masters degree in business management and I have been conducting research of occupational regulation as a whole for years and am writing a book on the subject).

Yet, Professor Brescia IS an expert on legal ethics and MUST know the law governing the regulation of the legal profession.

And that law includes federal antitrust law.

Professor Brescia MUST know, as an expert in legal ethics and professional discipline of lawyers, that the U.S. Supreme Court has ruled A YEAR AGO in North Carolina Board of Dental Examiners v. Federal Trade Commission that when market players regulate their own profession without supervision from a neutral governmental source, that is a violation of federal antitrust laws that is not entitling such regulators to immunity from antitrust liability.

And Professor Brescia MUST know that the Federal Trade Commission does not recognize supervision of market players by other market players (even if temporarily removed from the practice of the profession - like judges supervising lawyers are) as a neutral supervision that would absolve market-player-regulation of federal antitrust liability.

Let's backtrack to the beginning of Professor Brescia's article where he pays the lip service for the declared need for regulation:

"Regulation ... serves an important consumer protection purpose".

Right.  But, see later in the same article by Professor Brescia:

"some regulation is actually good for business" 


"leave regulation of the profession to the profession" where the legal profession "opts to regulate itself as a way to fend off more onerous regulation".

So, is the regulation about protection of consumers?

Or, is the regulation (of lawyers) a pretense that lawyers are regulated by the government, when in reality lawyers are SELF-regulated (in violation of federal laws) and SELF-regulated in order to avoid a "more onerous regulation".

But, Professor Brescia, you've just admitted - on behalf of the legal profession, while being an expert in legal ethics and attorney discipline - that there is NO REGULATION BY THE GOVERNMENT of the legal profession.

Than what constitutes attorney licensing?  Self-regulation?  Isn't the law license given to attorneys by the government?

Isn't practicing without a license given by the government a crime prosecuted also by the government?

Does licensing by the government and punishing for unlicensed practice also by the government sounds like SELF-regulation to you?

Or does Professor Brescia, in his rush to advise the unregulated silly "disruptive innovators" from other industries, admitted that the regulation of attorneys ostensibly by the government IS A FAKE meant to skip the REAL regulation for the protection of consumers, so that in reality the profession would be self-regulated (in violation of federal antitust laws), which is "good for business", and so that the profession would avoid a "more onerous regulation" - by a neutral government body, which is what the regulation MUST be about.

The legal profession, "coincidentally", is the only profession regulated by the judicial branch of the government, and not by the executive branch of the government that handles regulation of all other professions.  Why?  Because the judicial branch consists of market players, too.

When the judicial branch provides judicial review of license revocation of a doctor or a taxi-driver, it does not regulate its own profession.

When the judicial branch revokes (without any judicial review) a law license of a lawyer (like Pennsylvania Attorney General Kathleen Kane, for daring to investigate and expose judicial misconduct, misconduct of the regulators of the legal profession), the judicial branch is market players regulating market players for purposes of market players, not to protect consumers.

 I recently filed an antitrust complaint about this peculiar way to regulate the legal profession, as compared to all other professions, with the Federal Trade Commission.

Professor Brescia actually insists that the legal profession "self-regulates" so that the government would not intrude into independence of attorney's performance for their clients:

"For the most part, the regulation of lawyers has proceeded under the belief that too much state intervention gets in the way of the lawyer doing his or her job. "

In fact, that is exactly what is the purpose of THIS blog - to show that the EXISTING REGULATION of attorneys BY THE GOVERNMENT DOES INTERFERE into the lawyer's independence in serving her client.

When the government who is a defendant in a civil action removes the law license of its opponent's attorney, as the State of New York did with my license when I was suing the State of New York on behalf of a client, I would call it "too much" of "state intervention" that "gets in the way of lawyer doing her job".  

Right, Professor Brescia?

Yet, Professor Brescia continues to insist that regulation of attorneys by the government does not exist - even though he himself has a license to practice law FROM THE GOVERNMENT, 

which is the ultimate evidence of at least pretended government regulation:

"Against the backdrop of this freedom from regulation are a number of means of ensuring lawyers do not take advantage of their clients..."

"Freedom from regulation".  Professor Brescia, are you admitting to professional incompetence?

After Professor Brescia, a licensed attorney, claimed that there is a "freedom from regulation" for attorneys, he listed the following as "self-regulation":
  •  "there are barriers to entry to the profession that strive to admit into the profession only those individuals with the requisite skill and moral fitness to practice law; 
  • there are codes of conduct that lawyers must follow; 
  • lawyers are disciplined and 
  • subject to malpractice lawsuits when they engage in improper conduct and take advantage of clients; and 
  •  lawyers can be stripped of the right to practice law in the event of egregious violations of trust".

Now, Professor Brescia, let's start from your last statement.

Who - if the profession is SELF-regulated - "strips" attorneys "of the right to practice", and are you so sure that such stripping occurs only "in the event of egregious violations of trust", or rather, as a measure to quash competition or retaliate against critics of misconduct.  

Can you honestly and in good faith continue to keep you head in the sand as to the use of attorney discipline as a political tool of retaliation and of private vengeance, as well as a tool to eliminate competitors?  And continue to keep your law students (myself included, I was your law student) in the dark as to volatility of their investment into the legal profession and law license which can be taken away on a whim of a disgruntled judge whose misconduct a lawyer would expose AS IS HER DUTY TO HER CLIENT?

You misled me, Professor Brescia, by not providing to me that vital piece of information in your "legal ethics class", didn't you?  

As you apparently continue to mislead law students, class after class.  

And now are striving to mislead even professions outside of the legal profession.

But, most importantly for the essense of Professor Brescia's argument that the legal profession is "SELF-regulated" - who then strips an attorney of his or her "right to practice".  The tooth fairy? Or the government?  And isn't that stripping called regulation BY THE GOVERNMENT?

Let's go on.

Barriers to entry.

What does "moral fitness" has to do with regulation of a profession, and shouldn't morality (which is a subjective concept and for many, a religious concept) be left outside of GOVERNMENTAL regulation of a DUE PROCESS right to earn a living?

And what this subjective "moral fitness" has to do with ability to provide quality services to customers?

Furthermore, isn't it the GOVERNMENT that issues those "codes", and isn't it the GOVERNMENT that checks "fitness" of lawyer candidates to practice law, and isn't it the GOVERNMENT, and isn't it the GOVERNMENT that disciplines attorneys?

And isn't malpractice NOT part of attorney regulation?  Isn't it a common law cause of action where the aggrieved party simply sues an attorney, same as an aggrieved party would sue any other service provider in whose services the party is not satisfied - like a doctor, a plumber, or a construction worker?

Don't you, as an expert in legal ethics, Professor Brescia, have to know this much?

Professor Brescia insisted on his professional incompetence more and more, by stating this:

"In the end, though, we regulate lawyers through a "light touch" approach that provides some degree of guidance and oversight, but also gives lawyers the latitude to practice their craft outside the watchful and intrusive eye of the state. "


Now, who are "we" who regulate lawyers "through a light touch"?

The "we" that are not "the watchful and intrusive eye of the state"?

If it is not the state, then who?

And what is this "light touch", Professor Brescia, can you enlighten us on this one, please?  Might it be the non-prosecution of politically connected attorneys, relatives, friends and employees of judges, former judges and their political sponsors and connections?  Why did you not mention that the "light touch" has an important exception for critics of judicial misconduct?  Than the "light touch" becomes a "vicious strangle", doesn't it? Or do you not mention that to your law students, because otherwise you will not have your lucrative and well-paid position in Albany Law School, funded by these mysterious "self-regulators" entitled to the "light touch" "outside of the watchful and intrusive eye of the government".

Well, at least you recognize that regulation by the government must be watchful and intrusive, and that regulation of attorneys (with the judicial critics exception) is neither watchful nor intrusive (effective).

Professor Brescia puts his foot even further into his own mouth by stating this:

"Some argue that the Sharing Economy shares the legal profession's need for such light touch oversight.  If a driver for Lyft or Uber had to follow the same licensing requirements as taxi drivers in many cities face, it is unlikely that any would sign up to work within the platform."

Once again, the UNREGULATED drivers of Uber are equated by Professor Brescia with the REGULATED legal profession.

Moreover, Professor Brescia states that if an unregulated driver (which is the same as a regulated lawyer for Prof. Brescia) was to follow the REAL licensing requirements of taxi-drivers (no equivalent in the legal profession for the REAL licensing requirements, I guess), it is unlikely that the Uber drivers would agree to work under such conditions.


In Professor Brescia's opinion, "Sharing Economy companies are trying to create new, peer-to-peer economic models that are, like the attorney-client relationship, difficult to regulate."

Once again, Professor Brescia is comparing UNREGULATED economic models with FIERCELY REGULATED legal profession - to the point of making it a FELONY to practice law without a STATE-ISSUED license - like you have, Professor Brescia, remember?

And now comes the sermon.

Professor Brescia advises the UNREGULATED "disruptive innovators" of other industries the following:

"The Sharing Economy should embrace the components of the law governing lawyers: self-regulation through the imposition of meaningful barriers to entry and the promulgation of robust codes of conduct for Sharing Economy providers; recourse through the courts for significant violations of consumer interests, including holding Sharing Economy platforms liable and not just providers; and dispute resolution mechanisms, including the courts, that can offer the opportunity to remove providers from Sharing Economy platforms for significant violations of consumer trust. "

Now, Professor Brescia, are you advising to the "Sharing Economy" providers to do the same as lawyers do - come together as criminal cartel, violate federal antitrust law by the admitted "SELF-regulation" (regulation exclusively by market players without supervision by "the watchful and intrusive eye of the state").  

You are advising the Sharing Economy providers to violate civil and criminal federal antitrust laws?  

And why such an interest in "Uber" or "AirBnB"?  They have nothing to do with the legal profession, other than being an analogy to the disruptive innovators OF the legal profession - Nolo, LegalZoom and similar companies?

Why not simply say: Nolo and LegalZoom, stop being silly and, finally, agree to regulations BY US - regulation by us is so good, it is so "light touch", you won't even notice it.  You will simply die in your sleep from suffocation.

 Then Professor Brescia criticized Uber for having a code of conduct for its drivers that contains only 592 words (for Professor Brescia, obviously, the length of the code of conduct is a criteria of its worth), and as to AirBnB that has no "code of conduct" for the private homeowners that use that platform as a clearing house to rent their houses to strangers.

Professor Brescia concludes his article by resoundingly pushing his foot even further into his mouth:

"What Sharing Economy platforms should learn is what the legal profession learned a long time ago; regulate yourself or someone else will do the regulating for you. "

Professor Brescia did not spare the poor American Bar Associations, and exposed it this way:

"As an American Bar Association report stated in the 1980s, if lawyers did not band together to combat a perceived lack of professionalism in the bar "far more extensive and perhaps less-considered proposals may arise from governmental and quasi-governmental entities attempting to regulate the profession."   The report continued: "The challenge remains. It is up to us to seize the opportunity while it is ours."

So, SELF-regulation of the legal profession under the pretense of the regulation (and in violation of civil and CRIMINAL federal antitrust laws) is a concerted action, directed by the American Bar Association as a way of "seizing the opportunity while it was theirs" to AVOID regulation from the government.

Then, again, WHAT ARE those law licenses issued allegedly BY THE GOVERNMENT?  Including Professor Brescia's law license?

Can you enlighten us on that one, Professor Brescia?

I doubt, that Professor Brescia will enlighten us why, right after the ABA's quirky resolution 105 made in a lame attempt to "seize the opportunity while it is still theirs", and while the opportunity for monopoly over the market of the legal services is definitely slipping, Professor Brescia engaged in this incompetent sermon.

Why he repeatedly claimed that the legal profession is "self-regulated" and not regulated by the government. 

Isn't it misleading the public?

Isn't it unethical for a licensed attorney to say that from the pulpit of the Albany Law School, as a legal expert?

Isn't it unethical for attorney Brescia to give this legal advice to the "Sharing Economy platforms"?

"The challenge for Sharing Economy platforms is clear, and it is a challenge the legal profession has long embraced Accept some form of regulation, including meaningful self-regulation, or someone else is going to do it for you."

Thank you, Professor Brescia.

Your article will make a very nice addition to my complaint to the Federal Trade Commission.  From the lips of an expert - an admission that regulation of the legal profession WAS DESIGNED to violate federal antitrust laws, civil and criminal.

Good job.

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