"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 U.S. Court of Appeals for the 2nd Circuit: New York may discriminate against out of state attorneys to protect business of in-state attorneys. Dissent: no, facial discrimination for protection of insiders' business against a fundamental right to practice law is unconstitutional

Since September 7, 2011 1/3 of attorneys practicing in New York State (out-of-state attorneys) enjoyed the benefits of the decision of Judge Lawrence Kahn - yes, Judge Kahn not only engages in corrupt behavior by ruling against enemies of his friends from American Inns of Court where he is an "officer", he also did something right, too - nearly 5 years ago.

In his decision filed on September 7, 2011, Judge Kahn declared unconstitutional New York "office requirement" for out of state attorney - which was clearly anachronistic in our day and age of the Internet, and violated Privileges and Immunities clause of out-of-state attorneys who were licensed to practice in New York.

Let's say it again - New York ISSUES licenses to out of state attorneys, without requiring them to have offices in New York.

New York CHARGES money for those licenses, CHARGES money for continued legal education, but when it comes to actually exercise their rights to practice, it BURDENS out-of-state attorneys with additional requirements - to have a physical office within the state of New York, something the so-called "resident" attorneys are not required to do.

On April 22, 2015, the 2nd Circuit overruled Judge Kahn and claimed that the requirement of a physical office of the out-of-staters, which is not required from the "resident" attorneys is not a violation of Privileges and Immunities Clause, but instead that by asking the court to strike the office requirement targeting ONLY out-of-staters, out-of-staters are trying to create a "privileged situation" for themselves.

Go figure the logic.

The dissenting opinion (that starts on page 32 of the 2nd Circuit's decision made by the majority of just TWO judges who decided to uphold discrimination against 1/3 of New York State attorneys) judge Peter Hall picked up on that warped logic right away:

That's exactly right - Judiciary Law 470's office requirement was meant ONLY for out-of-state attorneys, which meant that the statute was discriminatory - and thus unconstitutional under Privileges and Immunities clause - ON ITS FACE.

Judge Hall further states that the majority acknowledged that the statute had "protectionist aims" that did not survive the required scrutiny, or in other words, that New York State government MEANT to discriminate against the out-of-state attorneys in order to protect the business of in-state attorneys:

Judge Hall recognized that the practice of law is a fundamental right - which means that additional protections and scrutiny are needed before the government can burden such a right:

The majority does not mention that the practice of law is a fundamental right by the way - you can word-search the decision, the words "fundamental right" (according to the U.S. Supreme Court's decision in Supreme Court of N.H. v Piper, 470 U.S. 274 (1985) ) are only contained in the dissent and in majority's footnotes describing the dissent.

As to the so-called "resident attorneys", such attorneys do no have to have an office. 

The contrived reason for discrimination is the alleged amenability of in-state attorneys to service on their residential address.

That is simply not true.

Look up New York state attorneys with New York State P.O. Box addresses only - they do not have their residential addresses listed, so service upon their residential addresses is, naturally, not available.

I had an experience with Judiciary Law 470 while it was still deemed unconstitutional and while my license in New York was still not suspended.

I was NOT an "out of state attorney" because my residence remained in New York, even though I visited out of state, and even stayed for some time out of state.

Many New Yorkers have two residences - in Florida, for example, and in New York, and the "residency" requirements are not clearly defined, by the way, in Judiciary Law 470.

NYS AG Kenneth Gellhaus accused me, this past summer, of unauthorized practice of law because he claimed I had to, as a "non-resident attorney", and did not have the "required" physical office in New York to oppose a case he handled against my client.

In opposition, I, first, stated that Judiciary Law 470 at the time was unconstitutional because of Judge Kahn's decision. 

Second, that I was at that time a resident attorney in New York, and did not have to have a physical office.

Third, even if an attorney has a P.O. Box outside of the State of New York to receive mail, that may not be used as proof of out-of-state residency, because the U.S. post offices do not have residency requirements to provide those P.O. Boxes anywhere, and my South Carolina P.O. Box was the only "proof" of my "non-residential status" that Mr. Gellhaus had.

And fourth - I asked Mr. Gellhaus to disclose his own personal RESIDENTIAL address, because that is the whole difference that is claimed to justify discrimination of Judiciary Law 470 - that "resident" attorneys may be served at their residential addresses.

I never got that residential address from Mr. Gellhaus, which shows how much worth are the arguments about amenability of "resident" attorneys to personal service in New York - exactly "zero". 

Mr. Gellhaus was, by the way, the first person who notified me of suspension of my law license - I guess, he was very much interested in that event to occur and I wonder if he made sure that event would occur.

After all, both the disciplining court and the disciplining attorney grievance committee were both his clients.

So - now any discriminated "out of state" attorney who is licensed in New York can DEMAND to know 

RESIDENTIAL ADDRESSES of the so-called "resident" attorneys to be able to serve them at their home, and 

DEMAND that New York State must now REQUIRE "resident" attorneys to publish their residential addresses along with their office addresses or P.O. Boxes to make themselves "amenable" to personal service - as a matter of equal protection challenge, because the "resident" attorneys' status as living within the State of New York and amenable to personal service at their homes within the State of New York was the ONLY distinction made by the 2nd Circuit as to why discrimination against attorneys must exist.

So - did the 2nd Circuit's decision really protect the "resident" attorneys in New York?

Did it make them safer?

I don't think so.

The service issue is also a non-issue because by being licensed in New York, attorneys agree to service of process wherever they are.

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