"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.

Saturday, May 14, 2016

A conceptually new challenge against occupational licensing and discipline by organized bars was launched in Florida

Occupational licensing, as was recognized by President Obama, is stifling the U.S. economy, where over 1/3 of work force in the United States is licensed or certified, thus blocking entries into those professional markets and preventing labor mobility and provision of competitive services.

Attorney regulation is part of occupational licensing.

I have posted many articles on this blog showing that attorney licensing does not protect consumers, does not guarantee good levels of education, training or integrity of members of the bar, monopolists in court representation, and does not ensure protection of people's constitutional rights.

In fact, dependence of court representatives upon the government that those court representatives may have to challenge to protect their clients' constitutional rights, guarantees the opposite, that attorneys will sell out, with few exceptions, their clients' interests in the name of self-preservation.

Therefore, I view any efforts to undo the monopoly of the entrenched legal profession from its monopolistic position that hurts the economy and hurts people's access to justice in this country, is a good thing.

I was recently alerted to a conceptually new challenge on attorney regulation, made in Florida.

Florida, as the majority of jurisdictions in the United States has what is called an "organized bar".

That means that the local state bar association, a labor organization, usually a non-profit, comprised to protect interests of its members, is also "vested" by the state government with state power to regulate occupational licensing among its members.

Well, that is exactly what was the basis of the challenge.

In a motion filed on May 12, 2016, an attorney in Florida asserted that Florida Bar is a Labor Organization under a federal statute, National Labor Relations Act (NRLA), 29 U.S.C. 152(5).

The argument then goes that the Florida bar does deal with employers regarding conditions of work of its members - thus discharging its functions as a labor organization under 29 U.S.C. 152(5).

If the Florida Bar is a labor organization under NRLA, the argument then goes, the NRLA prohibits labor organizations to "threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, whether in either case an object thereof is forcing or requiring any person to cease doing business with any other person".

But, the argument goes, suspension or revocation of a law license is specifically "forcing or requiring any person to cease doing business (law business - T.N.) with any other person".

The lawyer next raises the issue of federal pre-emption of inconsistent state law:

Since, as the lawyer argues, National Labor Relations Act pre-empts inconsistent state law, specifically, regulation of attorneys by a labor organization, Florida State Bar, when Florida State Bar attempts to disbar the attorney, it violates NLRA:

And, since there is a pre-emption of actions of the Florida Bar through NRLA, the disciplinary court has no subject matter jurisdiction over attorney disciplinary proceedings, and the case should be dismissed.

The challenge, which appears to be logical and sound, presents a complete bar to jurisdictions of state courts in attorney disciplinary proceedings, and in all other proceedings regarding revocation of occupational licenses where the petitioner is the labor organization that is allowed by the state to act as the regulator of that particular market.

Thus, nearly at the same time, in two states, Tennessee and Florida, there emerged two new ways to attack validity of occupational licensing - 

  • the federal National Labor Relations Act, and a federal pre-emption doctrine in the 32 states with "organized bars" (bar associations allowed to act as regulators of its own profession):
    1. Alabama, 
    2. Alaska, 
    3. Arizona, 
    4. California, 
    5. Florida, 
    6. Georgia, 
    7. Hawaii, 
    8. Idaho, 
    9. Kentucky, 
    10. Louisiana, 
    11. Maine, 
    12. Michigan, 
    13. Mississippi, 
    14. Missouri, 
    15. Montana, 
    16. Nebraska, 
    17. Nevada, 
    18. New Hampshire, 
    19. New Mexico, 
    20. North Dakota, 
    21. Oklahoma, 
    22. Oregon, 
    23. Rhode Island, 
    24. South Carolina, 
    25. South Dakota, 
    26. Texas, 
    27. Utah, 
    28. Virginia, 
    29. Washington State, 
    30. West Virginia, 
    31. Wisconsin, and 
    32. Wyoming.

Since jurisdictions that do not have organized bars, usually have reciprocity agreements with jurisdictions that do have organized bars, the innovative challenge currently brought in Florida may affect all attorneys practicing law in the United States.

I will follow the progress of both the Tennessee lawsuit and the motion to dismiss in Florida and will report about it on this blog.

Stay tuned.


  1. I appreciate Tatiana's blog. The case is The Florida Bar vs Erwin Rosenberg, SC2015-2237.

    NLRA - 29 U.S. Code § 152(5)states as follows: "The term 'labor organization' means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work."

    Even though New York does not have an organized bar, arguably the Court and/or the Grievance Committee is a "labor organization" under NLRA. Employees participate since New York Judiciary Law § 468-a. Biennial registration of attorneys states as follows: " 4. The biennial registration fee shall be three hundred seventy-five dollars, sixty dollars of which shall be allocated to and be deposited in a fund established pursuant to the provisions of section ninety-seven-t of the state finance law, fifty dollars of which shall be allocated to and shall be deposited in a fund established pursuant to the provisions of section ninety-eight-b of the state finance law, twenty-five dollars of which shall be allocated to be deposited in a fund established pursuant to the provisions of section ninety-eight-c of the state finance law, and the remainder of which shall be deposited in the attorney licensing fund.  Such fee shall be required of every attorney who is admitted and licensed to practice law in this state, whether or not the attorney is engaged in the practice of law in this state or elsewhere, except attorneys who certify to the chief administrator of the courts that they have retired from the practice of law." Furthermore, "any agency" may include the NY Court and/or the the relevant NY Grievance Committee and, like The Florida Bar, it exists for the purpose in part of dealing with employers concerning conditions of work. See NY Rules of Professional Conduct Rule 5.2 (" Responsibilities of a Subordinate Lawyer (a) A lawyer is bound by these Rules notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does not violate these Rules if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty"). Erwin Rosenberg