"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, March 8, 2016

The Oklahoma State Supreme Court contributes to accelerating demise of attorney regulation

Attorney licensing, as any other form of occupational regulation, is declared to be done in the interests of consumers.

The government verifies, we are explained, for the benefits of consumers, that licensed attorneys should have the right qualifications and skills to practice.

For that purpose, rigorous standards are set for certification of law schools, and for licensing examinations for attorneys called "bar examinations".

And, certifications of educational institutions and licensing exams exist - remember? - to protect the consumer from unqualified providers.

So, what if law schools cannot get certified by those rigorous standards?  They must then close - the logical answer.

So, what if law students cannot pass that bar exam (a pass or fail test)?  They must then be denied the law license.  Anything else undermines the declaration that attorney licensing is done for protection of consumers.

Well, the Oklahoma Supreme Court just helped show the America public what a sham attorney regulation is, by lowering the bar for the statewide attorney licensing - because law graduates increasingly fail to pass it, despite the fact that previous generations of law students (of better educational caliber, obviously) could and did pass it in higher numbers.

Is it a protection for consumers at all if attorney candidates who cannot prove their skills in order to gain the right to represent their clients are simply forgiving the fact that they cannot prove their skills to the required standards, and the standard is simply dropped so that they can meet it?

Why take the bar exam at all then if it is a chameleon test, to be suited to the body of students taking it.  

They say - do not blame the mirror for your face.

Do not blame the result of the bar exam for your own lack of knowledge.

Not any more.

Now that the Oklahoma bar exam is changed from a real-life mirror to a magic mirror.

Instead of reflecting to the consumers that those who passed the test possess the required skills to represent them, now the simplified Oklahoma bar tests insults all future bar takers and puts into all consumers doubts as to whether all future Oklahoma bar takers idiots who are unable to satisfy rigorous standards that previous attorneys could satisfy.

Therefore, in Oklahoma, the price of attorneys admitted to the bar in the "pre-dumb bar exam era" will go up and it will be even more difficult for the "post-dumb bar exam era" attorneys to find a job.

If regulation of the legal profession is dying, the courts should not insult those still trying to join it by lowering the test standards to all applicants, as if all of them are unable to meet the previous standards.

In any event, consumers of legal services, beware.

If the previous bar exam was not a guarantee of quality of legal representation, the dumber bar exam leaves a gaping question as to why attorney regulation continues to exist at all.

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