"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, April 26, 2016

The latest discriminatory ruling of the 2nd Circuit regarding the legal profession hurts consumers of legal services

I wrote several blogs today about the decision of the U.S. Court of Appeals for the 2nd Circuit that reinstated the discriminatory New York "physical office" requirement for out-of-state attorneys only.

While the lawsuit was brought by an out of state attorney who was subjected to that discrimination, one BIG necessary party - New York consumers of legal services - was not included into the lawsuit and were not asked their opinion on it, so a challenge to constitutionality of the same Judiciary Law 470 can be made from a consumer standpoint.

Because the decision in Schoenefeld v Scheiderman by the U.S. Court of Appeals (see my blog about it here, with a link to the decision) will raise the costs of legal services for New Yorkers at the time when majority of New Yorkers already cannot afford such services.

It will happen, because of Schoenefeld v Schneiderman decision in the following way:

1) It will be more expensive for out of state attorneys (at lest 20,000 attorneys) to practice law in New York, so they can either stop practicing or raise their prices to justify office costs.  If out of state attorneys charge the same prices as in-state attorneys, they will themselves be getting less because of higher office costs, at least as compared with those resident attorneys who do not have physical offices.

2) Additional prices may force out of state attorneys to stop practicing law in New York, instead preferring jurisdictions with friendlier "virtual office" rules and their own home states.

For people litigating in New York courts (and that's predominantly New York residents) that will mean less attorneys.

When there are less service providers, the remaining service providers may raise prices, and that's exactly what New Yorkers may see soon after Schoenefeld v Schneiderman - the raise of in-state prices for legal services.

Let's recall that the declared purpose of attorney regulation in the first place is protection of the consumer.

Thus, all statutes pertaining to such regulation, must be related to that primary goal.

I did not notice any analysis in Schoenefeld v Schneiderman as to how New York "physical office" requirement to out-of-state attorneys will benefit the consumers.

Apparently, the Attorney General who represented the State of New York on the side of discrimination, did not care about protecting interests of consumers, New York taxpayers who elected him, either. 

But - because the ruling in Schoenefeld v Schneiderman was not made on behalf of consumers, it is arguably not enforceable against consumers, even though the State of New York was supposed to represent interests of consumers in that lawsuit.

Had the State of New York been interested in helping consumers, instead of creating and promoting competitive advantage for in-state attorneys, the State of New York would at least provide a coherent explanation of why the consumers would benefit from raised prices and reduced number of service providers which would be the inevitable result of the ruling that the State of New York sought.

Also, since New York State Attorney General is also a "market player" in regulating the legal services market, he cannot be deemed a proper representatives of consumer interests in such a lawsuit - according to North Carolina Board of Dental Examiners v FTC of February 25, 2015 and FTC Guidelines to Staff of October 13, 2015.

Therefore, in my opinion, constitutionality of Judiciary Law 470 continues to be open to a constitutionality/antitrust lawsuit from consumers of legal services in New York.

Schoenefeld v Schneiderman only highlights once again that the declaration that attorney regulation is done for the benefit of consumers of legal services is just a smoke-screen designed - designed badly, with the design crumbling - to hide the fact that the entire idea of attorney regulation is nothing than a plan of a powerful guild protecting its own turf that does not give a rat's ass about consumers of legal services.


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