"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, June 18, 2016

FTC and DOJ joint letter regarding statutory definitions of the practice of law confesses that the regulation of the legal profession is a sham

On June 10, 2016 the Federal Trade Commission, as well as the U.S. Department of Justice have issued a joint letter to the North Carolina legislature regarding the upcoming legislative bill that proposes to exempt interactive legal document preparation websites from the definition of the practice of law.

Here is the letter.

The letter is, let's say, interesting.

It asks the legislators to EXEMPT certain activities from the DEFINITION of the practice of law or unauthorized practice of law because - gasp! - the practice of law is NOT CLEARLY DEFINED.

Now, if something is not clearly defined, there is NO definition, and thus there can be NO regulation of the practice of law (which is not clearly defined) and NO prosecution for unauthorized practice of law (which is not clearly defined) and NO exemptions from what is not clearly defined - because there is nothing to exempt anything from.

That would be pure logic, wouldn't it?

By the way, FTC has been mulling on my complaint against New York State for its antitrust activities in regulation of the practice of law for over a year, but now gives birth to this masterpiece?

So, now FTC and DOJ recommends, in an official letter, to a state legislature that, to close the "justice gap" (access to court by litigants who cannot afford an attorney), document self-prep websites should be LEGISLATIVELY permitted so that the honorable legal profession wouldn't prosecute such justice-gap-closing and consumer-helping businesses for taking the bread out of attorneys' mouths.

What is also extremely interesting is that FTC and DOJ in its letter seems to separate the concept of "legal services" with the "practice of law":

"Overbroad scope-of-practice and unauthorized-practice-of-law policies can
restrict competition between licensed attorneys and non-attorney providers of
legal services, increasing the prices consumers must pay for legal services, and
reducing consumers’ choices."

As far as I know, there is no such thing as "attorney providers of legal services" in the American jurisprudence.

Instead, legal services are automatically equated with practice of law and, if done by unlicensed providers, are equated to the committing the crime of unauthorized practice of law.

So, FTC and DOJ is urging state legislatures to erode the concept of the "practice of law" even further.

Since that concept is not clearly defined anyway, it becomes increasingly clear that:

1) regulation of the legal profession creates and aggravates the "justice gap", for the benefit of attorneys and is harming consumers of LEGAL SERVICES;

2) what constitutes the practice of law is not clearly defined, thus undermining both the administrative regulation of the practice of law, and criminal prosecution of unauthorized practice of law;

3) separation of the terms "practice of law" and "legal services" BY THE FEDERAL GOVERNMENT and official promotion of competition between "licensed attorneys and non-attorney providers of legal services" further shows just how bad people are hurting BY regulation of the practice of law that prevents people from getting an affordable provider of legal services (which, for FTC and DOJ, is not the same as, exclusively, a licensed attorney).

What is unsettling though is that the federal government does not require the state legislatures to dismantle what constitutes illegal (and anticompetitive) regulation of the legal profession to help consumers of LEGAL SERVICES (which is not the same as the practice of law, according to FTC and DOJ), but instead humbly "recommends" to provide a "Band-Aid to cover the bullet hole" and to allow people who cannot afford a licensed attorney to at least be able to use document self-prep websites.

Yet, people who cannot afford an attorney, most likely, have a low literacy level and may have a problem with the self-prep websites, too, or no or poor Internet access and no literacy as to how to use the Internet.

So, why people who cannot afford an attorney should scramble either on their own, or with the help of document-prep websites, but cannot hire a "non-attorney provider of legal services" of their own choice who they trust?

And why FTC and DOJ, after all but confessing that regulation of the practice of law is a sham to protect the turf of the legal establishment, still continues to help protect it, instead of posing an ultimatum, according to its own logic:

1) Either you bring your attorney regulation in compliance with federal antitrust laws, in accordance with North Carolina Board of Dental Examiners v FTC (as of February 2015) and FTC Guidelines to Staff (as of October 2015) - or you STOP regulation of the legal profession as hurting consumers, creating and contributing to the justice gap;

2) Either you CLEARLY DEFINE what constitutes the practice of law, on a legislative level, and without participation of market players IN THE LEGISLATIVE PROCESS (remember what percentage of state legislators in any state are licensed attorneys?) - or you deregulate, because otherwise your regulation, including criminal UPL laws, is nothing other than helping the legal establishment protect their markets at the expense of consumers, in violation of federal CRIMINAL and civil antitrust laws.

So, my question is - the letter, while confessing a lot, is not doing much other than confessing a lot.

When will FTC and DOJ finally start doing their jobs and pursue elimination regulation of what is not defined, of the "practice of law" as unlawful and as a practice that hurts consumers, creates and contributes to the justice gap, only to enrich the market players?

And, by the way, the FTC and DOJ letter of June 10, 2016 somehow advises to state legislatures to actually regulate the document self-prep websites, too, for "consumer protection" purposes - and advise the state governments to use a 1980 U.S. Supreme Court precedent on permissible content-based restrictions on commercial speech.

Yet, the recommended 1980 U.S. Supreme Court precedent was effectively overruled in June of 2015 in Reed v Town of Gilbert, now requiring of the government to satisfy the "strict scrutiny test" (which the U.S. Supreme Court did not require in 1980).

So, why are FTC and DOJ recommending to use a precedent that was overruled a year prior to the date of their letter recommendation?

Are the FTC and DOJ trying to actually help state governments keep the corpse of attorney regulation alive for a little more, under the false pretensions of legality?

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