"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 2, 2016

While India invalidates its bar exam for violating a fundamental right to practice law, the U.S. imposes upon its consumers of legal services a limited set of providers who were never taught or tested in areas of laws they are allowed to practice

I did not see this news announced by the American Bar Association somehow.

While this is a piece of news very relevant to the legal profession anywhere in the world.

I know, I know.

In the U.S. the already-licensed attorneys fighting for survival in the ever-shrinking market of paid legal services, will say - "no, without a bar examination, how will the consumers know that the attorney representing them knows the law?"

My question is - how do they know now?

Let's look at the laws of different states and see what the already licensed attorneys are expected to know.

My overseas friends often assume that law licenses in the U.S. are nationwide.

Yet, they are not.

They are state-wide only, and some states have "comity agreements" with some limited number of states to admit attorneys from participating states without an examination, and other states do not have comity agreements and require all individuals, including attorneys already licensed by other states, to take their bar examination.

Let's look at the requirement of bar examination from the point of protection of the consumer - the declared purpose of attorney regulation in the U.S. and in the states.

A bar examination is a culmination of law school education.

To get licensed in the state, an individual should have:

  • a high school diploma (usually K to 12, 13 years);
  • a bachelor's degree (usually 4 years);
  • a Juris Doctor degree (usually 3 years) from a law school accredited with the American Bar Association, all in all 20 years of formal education.
And, the law school graduate must pass the state bar.

State law licenses cover ALL TYPES of laws.

In other words, when a law school graduate gets a law license, that means that on the day the license was issued he or she is entitled to go into any state court and represent any person on any issue of state law.

And, the license and the education process is supposedly needed to guarantee quality of such representation to consumers of that person's services.

But, let's look at the set of state laws.

For example, let's look at the laws of the State of New York, here they are in open access.

When printed in books, these laws occupy a wall in a lawyer's office.  An entire wall.

Of course, there is not enough time to teach all those laws in the 3 years of law school.

And, of course, knowledge of all of those laws is not tested in the New York State bar examination.

But, nevertheless, the law license in New York permits any licensed attorney to practice any of the above mentioned laws - even if that attorney never read those laws in law school, was never taught about the content or intricacies of application of those laws, and was never tested on knowledge of those laws.

Now - where is the protection of clients here?

And where is the guarantee of knowledge by a licensed attorney?

What if a trusted individual without a law degree, a neighbor, read enough of a particular law to apply it better than a lawyer who never read that law, but is licensed to practice it?

The result will be counter-productive for the consumer.

The knowledgeable person will be criminally prosecuted for unauthorized practice of law if that person attempts to help a consumer of legal services with a problem that the knowledgeable person knows how to resolve and can provide real help with.

On the other hand, the licensed attorney who knows nothing about that area of law, will be allowed to present the case to the court - and botch it - and the only feeble way or protection against such an attorney, after the case was already botched because of the attorney's incompetence, will be a disciplinary complaint filed by the consumer or a malpractice lawsuit.

A disciplinary complaint will most likely be rejected, with no real mechanism to appeal (even the new rules of attorney discipline introduced in New York on December 29, 2015 do not provide for a strong right to appeal dismissals of meritorious complaints).

A malpractice lawsuit means more litigation, more money spent on attorneys, a difficulty finding an attorney who would be willing to sue another attorney, and an uncertainty of winning, where it is very difficult to prove a negative - lack of knowledge by a licensed attorney.

So, is the consumer of legal services protected by the process of attorney licensing?

The answer is apparent.

The answer will be even more apparent if, as part of an experiment, my readers can call their attorneys and ask off-the-top questions regarding some areas of law randomly chosen from list of statutes above.

Most attorneys would tell them that they do not "specialize" in such area of law, and they "specialize" only in a few narrow areas.

But, their license does not restrict their practice to those areas, so technically, an attorney who is desperate to get money from clients, can accept cases where he has absolutely no competence.

Actually, that is the case with the so-called "pro bono help".

I think I already told the story on this blog of some of my law professors not specializing in criminal law nevertheless boasting of accepting "pro bono" criminal cases.

My hair stood up when I heard that.

There are so many itty-bitty details in New York criminal law and procedure that taking a criminal case without knowing the law nearly guarantees that the case will be botched.

When I then was licensed to practice law, I heard many times from judges who were asked by indigent criminal defendants for assignment of a certain criminal defense attorney some quite cynical statements, such as that he is entitled to "an" attorney, not to an attorney of his choice, and not to a competent attorney either.

The same "protection through licensing" exists when one state blocks an attorney from another state from practicing within the state.

Please, tell me, how are legal consumers protected by requiring an attorney to have a physical office within the licensing state - that's what the 2nd Circuit recently ruled as "constitutional" for New York.

And how legal consumers are protected by allowing to practice, without an additional bar examination, attorneys who have agreements with the licensing state that they will do the same for that state's attorneys - license them without a bar examination?

New York has "comity" agreements with 39 states:

I will repost the list of states that entered the comity licensing agreement with New York so that the number of state is visible:

1. Alaska
2. Arizona
3. Arkansas
4. Connecticut
5. Colorado
6. District of Columbia
7. Georgia
8. Idaho
9. Illinois
10. Indiana
11. Iowa
12. Kansas
13. Kentucky
14. Maine
15. Massachusetts
16. Michigan
17. Minnesota
18. Mississippi
19. Missouri
20. Montana
21. Nebraska
22. New Hampshire
23. New Mexico
24. North Carolina
25. North Dakota
26. Ohio
27. Oklahoma
28. Oregon
29. Pennsylvania
30. South Dakota
31. Tennessee
32. Texas 
33. Utah
34. Vermont
35. Virginia
36. Washington
37. West Virginia
38. Wisconsin
39. Wyoming

Do you think Albany Law School and other schools in New York teach laws of these 38 states and the District of Columbia?


Do you think law schools in these states teach New York law?

Equally - nope.

Yet, you do not know how big is the horde of attorneys from those states who were admitted "on motion" in New York without having a clue of New York law, and the same applies to attorneys admitted in those 39 jurisdictions having not a clue about the laws of those states.

HOW does that protect legal consumers and HOW does that guarantee quality of representation and HOW does that guarantee that the licensed attorney knows the law?

By the way, if you check out attorney registration pages of New York attorneys, those pages DO NOT reflect how the attorney was admitted - after a full bar examination.

In New York bar exam, conducted in 2 days (testing state and federal law on separate days), there is a "New York State" testing day, with a 6-hour rigorous examination of at least some areas of New York law, and the same applies to other states checking knowledge of their own state laws, at least some of them, in their own bar examinations.

Yet, if you are represented by a licensed attorney, with this extensive comity agreement that New York has with 39 jurisdiction, you have no guarantee that your attorney was EVER taught New York law, any of it, or EVER sat for a New York bar examination.

A lot of protection, isn't it?

Isn't it true that waiver of a bar examination does not guarantee that the states who are parties to mutual "comity" agreements teach laws of participating states?

So, such comity agreements between states are none other than turf-sharing agreements that have nothing to do with protection of the consumer, right?

By those agreements, an attorney admitted in the State of New York and who knows NOTHING about MOST of the laws of his or her own state (see list above), is accepted without a bar examination to be licensed in yet another state where he knows NOTHING about MOST of the laws of that state either, and a horde of lawyers from 39 jurisdictions are similarly accepted in New York, by simply paying a $400 motion fee.

It's a matter of revenue, nothing more, nothing else.

Not a matter of consumer protection.

And, despite the fact that the attorney was never taught or tested on knowledge of laws of the state where he is licensed, he will be licensed to practice in ALL of areas of law in both states, including in the areas he knows nothing about, was never taught about it and was never tested about.

Supporters of such arrangements can, of course, say - but, that attorney can read and self-teach him/herself about the new law!

He or she can certainly self-teach.

And he or she can hopefully read.

But - so can everybody else, every other unlicensed individual.

Yet, the declared purpose of licensing of the practice law is a guarantee of quality of service through education and testing, and that guarantee goes out the door when licensing covers areas of law which were neither taught nor tested.

And in that respect, India is ahead of the U.S. to simply recognize it and cancel the bar examination as an unconstitutional encroachment upon a right to earn a living.

Bar examinations are money-makers for the states and for bar-prep companies facilities where such examinations are held.

Yet, bar examinations - which are also known as a rapid brain-dump where quickly-learned bar prep course is as quickly forgotten after the bar exam - are useless to assure any guarantees of quality of service for legal consumers, and should be abolished, same as India has wisely done.

And, attorney licensing should go the way of the bar examination, too, protecting nobody but the legal establishment, and hurting those who it is claiming to help - consumers of legal services.

Consumers of legal services are hurt when they are restricted by the government (by the way, that same government which consumers may want to sue controls who consumers can choose to represent them to sue that government - a direct and irreconcilable conflict of interest) as to who they may choose to represent themselves in court, through attorney licensing.

And yet, as it is described here, because law schools do not teach or test knowledge of all laws of the licensing state, and because bar exams do not test all areas of laws in which the attorney is licensed, and licenses cover areas of law not taught, tested or even known by the licensed attorney, and because comity agreements allow licensing of attorneys who were never taught or tested on knowledge of ANY of state laws where they are being licensed - there is NO protection of legal consumers in attorney licensing, and it makes NO sense.

Because law licensing excludes people who know the law and can help from being able to help, and instead allows people who have no clue and can hurt instead of help, to have exclusive right of such "helping" - which makes no sense at all and contributes to the "justice gap" crisis in the United States.

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