"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.

Monday, May 16, 2016

American courts rule that protection through attorney regulation is not needed for the illiterate, unemployed and criminal defendants, even in death penalty cases - then, who does attorney regulation protect?

In 1969, the U.S. Supreme Court has ruled in Johnson v Avery, that even a lay individual, never licensed as an attorney, may provide legal services to the "illiterate or poorly educated inmates" (indigence was not even mentioned in the holding, only lack of literacy), if the State does not provide "a reasonable alternative" to assist such "illiterate and poorly educated" consumers of legal services in protection of their constitutional right to liberty:

 "In the absence of some provision by the State of Tennessee for a reasonable alternative to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners."

This is a precedent of the top court of the United States, existing in this country since 1969, for 47 years, which already undermined lawyer monopoly and criminal unauthorized practice of law statutes, making attorney licensing, attorney disciplinary proceedings and UPL laws constitutionally invalid.

Yet, as a side note, the same U.S. Supreme Court stubbornly refuses to review disciplinary cases of attorneys, even when they are punished for criticism of judiciary.

Adding to the conceptual mess regarding validity of attorney regulation are the recent cases covering the states of:

  1. California;
  2. Connecticut;
  3. Minnesota;
  4. Michigan;
  5. Nevada;
  6. New York;
  7. Pennsylvania;
  8. Texas, and
  9. Vermont - (and that is in addition to the mess created by Johnson v Avery that covers all states in regards to unauthorized practice of law and exemption of jailhouse attorneys from the reach of UPL on constitutional grounds where serving under-served populations)

The top courts of three statesTexas, California and Michigan, have contrary precedents on file, on the same issue of the 6th Amendment - that even a representation by an attorney SUSPENDED from the practice of law does not deprive a criminal defendant from effective representation of counsel.

The State of Pennsylvania, while using attorney discipline to remove an elected public official, the State Attorney General, who is also the official attorney for the disciplinary board and for the courts, undermined validity of attorney regulation and further contributed to the conceptual mess in justifying validity of attorney regulation by recently ruling that in a quasi-judicial administrative proceeding, representation by a suspended attorney was 

1) not a practice of law under the Pennsylvania State law, and 
2) the consumer of services of such an attorney was entitled to such a representation, but
3) the suspended attorney in question could still be disciplined for violation of his order of suspension - which makes no sense, because, if the attorney was suspended from the practice of law, and if what he was doing was not the practice of law, what did he violate then?

In three very recent decisions of several federal courts covering the states of Nevada, Minnesota, Connecticut, New York and Vermont,  courts disqualified and blocked licensed criminal defense attorneys from representing clients in criminal cases, including, in Nevada and Minnesota, clients chosen by their clients for representation in a criminal defense case, on the basis of some discipline against those attorneys that did not lead to suspension or disbarment: 

  1.  United States v Ahmed, Crim. Case No. 15-49 decided by the U.S. District Court for the District ofMinnesota (within the 8th Circuit) on March 21, 2016;
  2.  United States v Bundy, Criminal Case No. 2:16-cr-046-GMN-PAL decidedby the U.S. District Court for the District of Nevada (within the 9th Circuit) on March 31, 2016;
  3. In Re Castillo, Case No. 14-90008-am decided by the U.S. Court of Appeals for the 2nd Circuit (covering the states of Connecticut, New York and Vermont) on April 4, 2016.
Once again, three federal courts, in three different federal Circuits, in the 8th Circuit, the 9th Circuit and the 2nd Circuit, within a 2 week's period of time, this year, from March 21, 2016 to April 4, 2016, ruled that alleged misconduct of an attorney that did not lead to suspension or revocation of the attorney's law license, may nevertheless allow the court, on its own motion, to block a criminal defendant from choosing that attorney despite the requirement of the 6th Amendment right to counsel.

In both sets of cases - 3 cases in federal courts vs 3 cases in state courts - decisions were made in favor of prosecution, against criminal defendants, against consumers of legal services of attorneys and in violation of criminal defendants 6th Amendment right to counsel.

So, as of now, in Minnesota, Nevada, Connecticut, New York and Vermont, an attorney's license does not guarantee that an attorney will be allowed to appear in court in a criminal case, even if chosen by a criminal defendant as part of the defendant's fundamental constitutional right to counsel under the 6th Amendment - if a court finds in the defense counsel's past something the court does not like.

On the other hand, in California, Texas and Michigan, representation of a criminal defendant by a suspended attorney, whether through "administrative" or a "disciplinary" suspension, will not be contrary to the criminal defendant's 6th Amendment right to counsel.

It is apparent that the declaration that attorney licensing somehow serves to protect consumers of legal services is a sham used by courts as they please - to remove from cases criminal defense attorneys who are "too feisty", and disregarded by the courts when a criminal conviction is at stake.

Not only this is a significant split on the issue of a fundamental constitutional right to counsel, but such a split, by courts which are at the same time regulating agencies of the legal profession, confirms that attorney regulation and licensing declared to be for the benefit and protection of the consumers is nothing more than a sham in order to suit the government, which can be disregarded if it interferes with the governmental purpose to: 

  1. prevent appearance of certain attorneys as criminal defense attorneys, or, 
  2. even when the government suspends such criminal defense attorneys and removes them from professional activities,
  3. make convictions obtained during representation by suspended attorneys stick.

I put the rulings of these various courts into a table to verify the logic as to correlation of attorney discipline, competency and moral fitness of court representative to ability to provide legal services.

Here is what I got:


U.S. Supreme Court
What constitutes the practice of law
State criminal law on unauthorized practice of law (UPL)

Correlation between attorney license, discipline and attorney competence and effective assistance of counsel

competence and/or moral fitness
of provider
of legal
Preparation of petitions by lay individuals

Allowed, lay "jailhouse lawyer" not subject to prison discipline

Not clearly defined in statute
It is a criminal offense to practice law without  a license, whether the individual never had a license or whether the license was suspended or revoked.

Actions of the "jaihouse lawyer" constitute the state crime of UPL in Tennessee

No correlation, unlicensed individual is allowed to provide legal services
Representation before administrative board by a suspended attorney

Allowed for the consumer to use a suspended attorney, but is a disciplinary violation for a suspended attorney to provide such representation, exposing the suspended attorney to contempt of court charges and further disciplinary proceedings for violation of prohibition on practice of law

Not clearly defined in statute,

But in Pennsylvania, it is clearly defined by statute what DOES NOT constitute the practice of law, and that is  representation before a quasi-judicial administrative board where decisions have the power of collateral estoppel as if they were made in a court proceeding

Not the practice of law,

Actions of suspended attorney do not constitute unauthorized practice of law,

but do constitute a violation of a court order of suspension prohibiting the practice of law

No correlation, an unlicensed individual is allowed to represent clients before a quasi-judicial board, and that is not even deemed "practice of law" under the state law, even though it is essentially the same process as in court proceedings
Validity of criminal convictions involving representation in criminal court by a suspended attorney

Court representation by suspended attorney does not invalidate a criminal conviction in Texas, Michigan and California

Not clearly defined
Court representation by a suspended attorney constitutes UPL in Texas, Michigan and California, as well as contempt of the court order of suspension

No correlation, the courts claimed that attorney discipline to the point of suspension does not necessarily mean that a suspended attorney will provide ineffective assistance of counsel

Formally – yes, but, since the validity of criminal convictions is upheld, even for death penalty cases in Texas – de facto, No
Injunctions/disqualifications on representation in criminal court by a licensed attorney

Nevada, Minnesota and 2nd Circuit federal courts find that court representation by a fully licensed attorney of a criminal defendant's choice may be denied sua sponte by the court if the court finds misconduct or discipline not leading to suspension in criminal defense attorney's history

Not clearly defined
No UPL issues are involved in representation by a licensed attorney
Correlation found between prior attorney discipline not leading to suspension and forced disqualification of a licensed attorney from a criminal case despite being chosen by the client as a matter of 6th Amendment right to counsel
Formally – yes,
De facto – a license is a presumption of fitness,
Licensed attorneys were still disqualified, so the courts required fitness of criminal defense attorneys, but not of prosecutors, above and beyond licensing requirements, including in cases where alleged misconduct was committed by both the defense attorney and the prosecutor, but only the defense attorney was disqualified

The table shows that, first of all, what constitutes the practice of law in all states, is not clearly defined, so all state unauthorized practice of law statutes do not give prior notice of prohibited conduct, and are unconstitutional as such, under the U.S. Supreme Court precedent Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972) ("because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.")

If what constitutes the practice of law, is not clearly defined by statute, so that people can regulate their conduct accordingly, the state may not prohibit "unauthorized practice of law" which is not clearly defined.

The next thing is - there is no correlation between UPL and court decisions allowing provision of legal services in violation of UPL statutes (which presumably were created to protect the public from exactly the conduct that courts either directly allow or validate the results of):

In Johnson v Avery in 1969, the U.S. Supreme Court validated what constituted a crime under the state law.

In California, Michigan and Texas in 1996, the top courts validated the result of what constituted a crime under the state law.

There is also no correlation between education, competence and moral character and ability to provide legal services.

In the same Johnson v Avery, the U.S. Supreme Court allowed provision of legal services to illiterate individuals by a lay individual without regard whether the lay individual was educated, competent or of good moral character.

In Powell v Unemployment Compensation Board of Review, an unemployed individual was allowed representation by a suspended attorney, where no discussion was held whatsoever whether representatives in front of such Board should have any minimum levels of competences, education or moral fitness.

In criminal proceedings in California, Michigan and Texas, including in death penalty cases in Texas, suspension of attorneys who represent criminal defendants did not invalidate criminal convictions, and the Michigan court (cited by the California court) specifically claimed that there is no correlation between even a disciplinary suspension and competency and moral character and fitness.

Reading these decisions is like reading "Alice in Wonderland" - it is a "beyond the mirror" logic.

Those people who are the least capable of protecting themselves, by being illiterate, those people who are the least capable of obtaining a quality court representation through inability to pay - the unemployed, the indigent criminal defendants - are, on the one hand, those who are claimed to be protected by the U.S. Constitution (the 6th Amendment right to counsel), by attorney regulation (consumer protection), but in fact are not protected by the ad hoc court decisions, and that includes:

1) The U.S. Supreme Court in Johnson v Avery, regulator of the legal profession in its own court and across the country through appeals, did not seek to protect illiterate clients (following attorney regulation logic) where it allowed representation of such illiterate individuals by jailhouse lawyers are not checked out and vetted by the government as to their education, competence and moral character;

2) Pennsylvania courts, regulators of the legal profession, do not protect consumers of legal services by:

  • suspending civil rights attorneys and making their services unavailable to public at large;
  • suspending an elected public official, Attorney General Kathleen Kane, because she was protecting the public from corruption among regulators of the legal profession, the state judiciary, and among state prosecutors, the breeding pool for the judiciary;
  • nevertheless, allowing the allegedly unfit individuals (suspended attorneys) and never-checked individuals (lay individuals) to represent the unemployed in the quasi-judicial proceedings having collateral estoppel effect in court;

3) California, Michigan and Texas courts, regulators of the legal profession, do not protect the public from unfit attorneys by:

  • suspending criminal defense attorneys from the practice of law, then
  • being negligent in allowing such suspended attorney to continue to practice in criminal cases, including death penalty cases, and then
  • validating the results of their work by claiming that there is no correlation between effective assistance of COUNSEL and status of a suspended attorney, even if suspension was disciplinary

4) federal courts in Nevada, Minnesota and the 2nd Circuit covering Connecticut, New York and Vermont do not protect the public by 

  • disqualifying good and well known, licensed criminal defense attorneys, and by 
  • not only acknowledging correlation between attorney discipline and predictions of effective representation of counsel for the future (without any evidentiary basis for such predictions), but 
  • requiring a higher degree of competence and moral fitness than what licensing requires from renowned criminal defense attorneys (without imposing the same requirements upon prosecutors who those same courts never discipline no matter what they do), and by
  • blocking renowned criminal defense attorneys from representing criminal defendants, even if they are attorneys of choice for such clients, thus undermining the adversary nature of criminal proceedings and working as advocates for the prosecution.

The rule that can be discerned from this whole conceptual mess is that there are no rules.

The rules of attorney licensing, attorney discipline, the criminal statutes for unauthorized practice of law, cannot withstand even minimal conceptual scrutiny and exist for decades exclusively because of lobbying efforts of the legal elite that permeated all three branches of local, state and federal governments.

The illiterate can be represented by whoever.

The unemployed can be represented by whoever.

Criminal defendants can be represented by whoever - yeah, yeah, we heard about the U.S. Constitution and the 6th Amendment, we even swore to uphold it to get our permanent paycheck - but, there is a point where those pesky libertines with their constitutional arguments should just shut up and let us rule.

Because we said so.

Of course, the raw exercise of judicial power without solid conceptual basis is judicial misconduct.

That's not me saying it, that's what Alex Kozinski said in his famous dissent opposing dismissal of disciplinary proceedings against Judge Manuel Real, in reliance on legal authorities and opinions of scholars.

Yet, UPL prosecutions and lawyer monopoly in court representation continue, even though it is not supported by any evidence.

Education of lawyers is not superior to self-read knowledge, knowledge of all laws in one state is not taught or checked when a statewide license is given, and especially if it is given through "reciprocity", "comity" agreements with other states.

Legal education is not superior, because 

(1) law school accreditation for purposes of state licensing is handled by a non-profit corporation American Bar Association that has foreign membership and financing and which is, in essence, a labor organization;  such an organization has its own, and not consumer's interests in mind;  

(2) law school professors are bought up by monopolists in bar-prep courses to actually bar superior legal instruction materials.

Attorney discipline is conducted not as a tool of protection for consumers of legal services, but as a tool of vengeance against good attorneys for critics of what is wrong in the judiciary and the legal profession.

Attorney discipline and regulation is also conducted in violation of federal antitrust laws and federal labor-regulation laws.

And, while 80% of the public cannot afford an attorney, the U.S. Supreme Court already ruled in Johnson v Avery - where the individual is illiterate, anybody can represent him (and dupe him, accordingly).

So, where there is no logic and no protection in attorney regulation and discipline (and no consumers are allowed to participate in such regulation and discipline for their own protection), it is not the rule of law.

It is the rule of whim, for self-serving interests of the ruling elite.

Attorney regulation is a formal framework created so that the legal elite can pretend, by having formal disciplinary proceedings pretending at "self-regulation" (which in itself is an antitrust violation, as the U.S. Supreme Court ruled in 2015 in North Carolina Board of Dental Examiners v FTC), that protection of consumers' interest exists, without allowing consumers to make decisions regarding that regulation.

So that those pesky consumers would not interfere with the legal elite's making laws for themselves and enforcing the laws in their own favor.

Because they said so.