"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, September 20, 2016

A petition for a writ of certiorari was filed with the U.S. Supreme Court, addressing the role of retaliative attorney discipline in widening the justice gap

I have filed my long-suffering certiorari petition with the U.S. Supreme Court.

I am planning to write a separate book as to how to prepare such petitions, based on my own experiences and documented steps as to how exactly to format, print and bind the petition the way the U.S. Supreme Court requires - and save money.

The entire text of the petition is available here.

Of course, the petition did not cover all issues I wanted to cover, because of the word limit and because restrictions to font, text field, page size and presentation of documents in courts below in the Appendix makes it extremely costly to properly present all issues you want to present, so you have to cut them.

The petition raises several important issues:

1) how New York lowers the prosecution's burden of proof in attorney disciplinary proceedings in order to skip hearings and strip attorneys of their licenses without a hearing based on retaliative sanctions of judges sought to be recused,  sanctions are imposed by the preponderance of the evidence standard - while the standard of proof in attorney reinstatement proceedings is higher, and the standard of proof in private attorney discipline is higher, too, not to mention that the standard of proof required by ABA Model Rule and by designation of attorney disciplinary proceedings as quasi-criminal is also higher;

2) how New York uses attorney discipline contrary to its declared purpose (protection of consumers), and thus widen the justice gap by removing predominantly qualified criminal defense, family court and civil rights attorneys working for the poor, while replacing them with uneducated, unskilled and often unlicensed providers;

3) how New York uses attorney discipline as the tool of retaliation in violation of 1st Amendment and Due Process; and

4) how New York punishes attorneys for doing their duty for their clients when New York gives attorneys one and only tool to secure for their clients the fundamental federal constitutional right to impartial judicial review - through confrontational motions to recuse in front of judges who are sought to be removed from the case, and how New York then teaches these judges how to sanction attorneys and removes attorneys' licenses, without a hearing, based on such sanctions.

I stress in the petition that, if the so-called justice gap is as important as the U.S. Supreme Court Justice Sonya Sotomayor recently publicly claimed - to the point that attorney slavery is required in order to remedy that gap - it is a good way to start bridging that gap by simply not widening it further and not removing those attorneys who are already working for the poor.

I describe in the petition the situation that, when attorneys' livelihood is automatically taken, without a hearing, for making motions to recuse, no attorneys can realistically be expected to make such motion - and thus litigants' right to impartial judicial review in New York has simply become unavailable, which is a constitutionally intolerable situation.

The petition points out to the U.S. Supreme Court that the court took 2 cases in the past 2 years dealing with the wrong use of occupational licensing contrary of its declared goal:

1) in North Carolina Board of Dental Examiners v Federal Trade Commission, 574 U.S. ___ (2015),  the Court addressed anti-competitive use of occupational licensing,  and

2) in Whole Woman's Health v Hellerstedt, 579 U.S. __ (2016), the U.S. Supreme Court struck the use of occupational licensing that was declared to protect women's health, while the regulation, in fact, was doing the opposite.

I do not know whether the U.S. Supreme Court will consider these issues important enough for its review.  The petition is in the Court's hands, and I will report on the petition's progress.

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