"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, September 10, 2016

No good deed goes unpunished - attorney discipline for effective representation of clients and consumer choice of service providers

Recently, legal blogs exploded with criticism of decision by Minnesota Supreme Court punishing a Colorado-licensed attorney for unauthorized practice of law in Minnesota - for trying, without coming to the state, to settle a case for his in-law by e-mail.

The Colorado-based attorney contacted, by e-mail, the Minnesota attorney who was representing plaintiffs threatening to sue Colorado's attorney's in-laws. 

The Minnesota attorney asked if the Colorado attorney was licensed in Minnesota. 

The Colorado attorney said "no", but that he will get admitted pro hac vice if the case goes to court.  Then, Minnesota attorney (who was not disciplined for aiding and abetting unauthorized practice of law) continued to communicate with the Colorado attorney in discussion of a potential settlement, and, only after a dozen such e-mails exchanged, turned the Colorado attorney in to the Minnesota disciplinary authorities for unauthorized practice of law.

Here is the decision of the Minnesota disciplinary court pointing out all the facts.

The case relied upon a California disciplinary case against an attorney who was licensed in New York, for the proposition that an attorney who has never set foot in the disciplining state, can still be deemed to be unlawfully practicing law in that state without a license.

There was a strong dissent in the Minnesota disciplinary decision stating:

The whole dispute was, reportedly, for $2,368.13 between the lawyer's out-of-state in-laws and their condominium association.

The Colorado lawyer was fully competent and experienced to handle the case, and handled it for his in-laws for free.

Legal blogs, as well as the dissent, commented that the disciplinary proceeding was not worth the effort, was against the ABA rule 5.5 promoting multijurisdictional practice in our increasingly inter-connected world.

A prominent legal blog also pointed out an idea
"no good deed goes unpunished", an idea that slowly makes it into the mainstream.

Some blogs are trying to make a distinction between the UPL by attorneys who are licensed in one state - but not in another - which they think is too heavy-handed an approach, and UPL by an individual who "is not a lawyer anywhere".

Yet, this distinction without a difference misses the point of whether services provided for the client were actually competent services, and whether the client was or was not injured.

By the way, California, the state from which Minnesota disciplinary court borrowed grounds for its disciplinary decision against Colorado attorney - for UPL - has claimed that lack of license because of attorney discipline had nothing to do with ineffective representation of counsel.

So, California, the state upon whose UPL decision Minnesota relied, claimed that, even though it is a crime of UPL for a New York-licensed attorney to practice in California without a license, and the New York-licensed attorney is not entitled to a fee because he was not licensed in California, a criminal conviction where a suspended attorney (attorney without a license) represented the criminal defendant, should not be overturned for ineffective assistance of counsel.

Makes a lot of sense, doesn't it?

Attorney licensing is declared to exist for the SOLE purpose of PROTECTING CONSUMERS from unskilled, incompetent and dishonest attorneys.

The Colorado attorney was neither incompetent nor dishonest, and the disciplining court did not even interest itself with the question whether actual services provided by the Colorado attorney to his in-laws (members of class protected by attorney licensing) were of good quality or not.

Which brings me to the issue of choice by consumers.

The Colorado lawyer's in-laws CHOSE their son-in-law to represent them in a small claims matter with their condominium association.

The Colorado lawyer, a service provider CHOSEN by his clients, did apparently a good job - otherwise the opposing counsel would not have turned him in after a dozen e-mails (not the first e-mail).

If attorney licensing exists for protection of consumers, there was nothing to protect Colorado lawyer's in-laws from.

And, my point is that a consumer must be given a choice of  service provider, and their choice must be the beginning and the end of all governmental inquiries into propriety or impropriety of such representation.

The in-laws were not complaining about the quality of their son-in-law's services.  It is the opposing counsel who complained.  And, the opposing counsel was in no position to protect the in-laws' rights as consumers.  And, the opposing counsel was not sanctioned for aiding and abetting unauthorized practice of law by knowingly engaging in settlement negotiations with a Colorado attorney for months - while knowing that the Colorado attorney is not licensed in Minnesota.

There is a definite conflict of interest here - the Minnesota counsel was using attorney discipline that is meant as a shield to protect the Colorado lawyer's in-laws (Minnesota counsel's opponents) as a sword to strip them of free and effective representation of counsel.

To me, it is the Minnesota counsel who should have been punished - and much more severely than a reprimand - for the wrong use of attorney discipline in order to get advantage in litigation, and to have the Colorado lawyer's in-laws have to look for and pay for another attorney (which could be difficult for a small-claim dispute) instead of using their son-in-law's services for free.

The Colorado attorney did not have a license in Minnesota, and was trying to resolve a Minnesota legal case - that is unquestionable.

From that point of view, the Colorado attorney was in the same position as any other individual without a license to practice law in Minnesota.  He was, indeed, practicing law in Minnesota without a license.

Yet, the case, really, boils down to the issue of the ACTUAL QUALITY of service provided, and the CONSUMER CHOICE of a provider.

A competent adult consumer may not be told by the government who they can or cannot choose to represent them in a private dispute - and the government should not be able to use the tool of removing service providers of choice from consumer's reach by the completely illogical use of attorney discipline, punishing service providers for providing GOOD, and free, services, as a mere formality.

Various government officials, once in a while, make statements about the existence and gravity of the so-called "justice gap", about the majority of Americans not being able to afford legal representation because attorney fees are out of sight

(and attorney fees are out of sight because of lawyer monopoly for court representation, and because of the high costs of legal education and maintaining a law practice - the costs that go into the legal fees).

Yet, the justice gap is only being widened by decisions such as the recent one in Minnesota - where a competent service provider of choice was sanctioned for being chosen by consumers and for providing good services for those consumers who chose him - for free.

After all, the U.S. Supreme Court has ruled in Johnson v Avery many years ago that when a state cannot fix a "justice gap", it has no say who represents a consumer, even if that person was NEVER licensed to practice law ANYWHERE.

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