And, I also wrote on this blog about decisions in three states ruling, in criminal cases no less, that representation by an unlicensed individual has nothing to do with ineffective assistance of counsel.
And, I wrote a lot on this blog about the fact that all 168 jurisdictions regulating law licenses in the United States:
1) The U.S. Supreme Court acting as a regulatory agency for lawyers appearing in that court;
2) 13 federal appellate court separately regulating attorneys appearing in front of them;
3) 94 U.S. district courts, separately regulating attorneys appearing in front of them, and
4) 50 states separately regulating attorneys appearing in front of them
ALL 168 of courts acting as regulatory agencies and populated by people highly educated in the law, so far have not defined what exactly constitutes the practice of law - and since the practice of law is not clearly defined, criminal prosecution for unauthorized practice of "nobody-knows-what-it-is" is not legal.
Nevertheless, the blessed state of Kentucky now found resources to obtain a grand jury indictment against a woman (with a law degree) for unauthorized practice of law - while it cannot find resources to provide more legal services for the poor.
The individual in Kentucky, #AlmaRosaBonilla, also known as #AlmaRosaOlmedo, was charged with unauthorized practice of law, theft-by-deception and other crimes after she accepted $1,000 from an undercover officer for representation on immigration issues.
Representation in immigration proceedings, which are administrative proceedings, is first, not practicing law in state courts, and, second, does no require a law license.
All that an individual has to have to represent individuals on immigration issues is a Federal Board accreditation, and that can be given to unlicensed "reputable individuals".
So, the charges are illegal to begin with - because representation on immigration issues is not a state practice of law, but a federal issue - where a state law license is not required.
But, there are more issues in the Kentucky criminal charges.
Here is the Kentucky unauthorized practice of law (UPL) statute:
What is problematic with this statute?
Problem # 1. Judge-legislator problem, denial of impartial judicial review
There is a reason for separation of powers, why a legislator may not adjudicate or enforce the laws - because that creates an issue with impartiality.
If the court created a rule that it is then enforcing, the court may not be receptive to claims that the court-created rule is unconstitutional, and the court may not be impartial in enforcing its own rule.
Here we are dealing with the main material element of a criminal statute, what constitutes the practice of law.
First of all, the Kentucky UPL statute does not actually define what constitutes prohibited conduct, the practice of law, but instead, the legislature delegates that definition to a "rule of the Supreme Court" - making courts both legislators and adjudicators on the issue of UPL, which is an impermissible violation of separation of powers doctrine destroying criminal defendants' fundamental constitutional right to impartial judicial review.
If the Supreme Court of Kentucky both issues the law upon which criminal charges are brought, courts cannot then adjudicate such charges.
Well, in Kentucky, they do adjudicate such charges - and thus UPL defendants in the State of Kentucky, as in all other states where the definition of the "practice of law" is delegated to courts, are deprived of their right to impartial judicial review.
Problem # 2. No rigorous legislative procedure
Since the statute is based on a "rule" of the state Supreme Court, and rule-making is not subject to as rigorous a procedure as legislative acts, in Kentucky, as in all other states, definition of the practice of law is done at a whim.
Problem # 3. Delegating legislative authority to a special interest group
I doubt that the Kentucky State Legislature has authority to delegate its legislative authority to special interest groups.
That the Supreme Court of the State of Kentucky is a special interest group in regards of what does or does not constitute unauthorized practice of law, is unquestionable, because it is also a licensing agency regulating state law licensing, and consists in its entirety of licensed attorneys.
Thus, the State Legislature of the State of Kentucky entrusted foxes to guard the chicken coop, and to legislate in a way to punish their own competitors.
Legislating on subjects of personal interest is misconduct for any public official - as is delegating such legislating to a special interest group.
So, UPL statutes - across the nation - in states that allow the definition of what constitutes the "practice of law" to be governed by a court rule and not a legislative provision, may be invalid as based on the definition of the practice of law invented by a special interest group in its own favor, to punish competitors.
Problem # 4. Definition of the practice of law is vague and overbroad
Here is the actual rule of the Kentucky Supreme Court defining "the practice of law":
- any service rendered
- that involves legal knowledge or legal advice,
- whether of representation, counsel or advocacy in or out of court,
- rendered in respect to
- rights,
- duties,
- obligations,
- liabilities, or
- business relations of one requiring the services
Why this definition is unconstitutionally overbroad?
It covers anything from being an accountant or business partner to a parent.
First, there is this "any service" clause.
"Any service" involving legal knowledge can be ANY service at all.
A law professor, teacher or tutor (including a public school teacher or a homeschooling parent) may be teaching students about the law, and teaching law involves legal knowledge - so teaching law is practicing law without a license under Kentucky Supreme Court rule.
The restriction of "any service" to "whether by representation, counsel or advocacy in or out of court" does not cure the problem since what constitutes "counsel" is in itself an unknown.
"Counsel" can be provided by a neighbor, a teacher, a doctor, a therapist, a parent, a friend - who now all need law licenses if their "counsel" involves "legal knowledge".
So, when a parent talks to a child and counsels him or her against certain behavior that involves "legal knowledge", such as "do not do drugs/ do not speed/ do not have non-consensual sex with girls - that is a crime", a parent provides to the child "a service" for which the parent must either be licensed as a lawyer - or go to jail on UPL charges.
Next, many administrative boards, including federal boards, as we have in this particular case - the woman was charged with accepting money for representation on federal immigration issues - allow lay representation that does not require a law license.
Such representation unquestionably requires legal knowledge, though, and, thus, the service that Alma Rosa Bonilla was charged with providing "unlawfully", does fall within the definition of the UPL law, as per Kentucky Supreme Court Rule - even though such service is completely legal under the federal law.
So, here we may have a federal pre-emption issue, and an issue of being criminally charged for legal conduct.
Next, UPL in Kentucky makes it a crime to provide any out of court advocacy involving legal knowledge.
Representation by Alma Rosa Bonilla in front of a federal immigration Board is an out-of-court representation and advocacy, involving legal knowledge - but allowed by federal law.
Lay advocates are allowed in a variety of settings - including special education, health, representation in tribal courts, disabilities, advocacy for victims of crimes.
Such advocacy necessarily involves legal knowledge, and, often, advice about rights, making any lay advocacy in Kentucky a criminal offense.
So, Kentucky legislature, in its infinite wisdom, delegated legislating as to what constitutes the practice of law to a special interest group, the Supreme Court of the State of Kentucky where all legislators of the rule had a material interest in fending off competition since judges of Kentucky Supreme Court are licensed attorneys not elected for life.
And, that special interest group legislated in such a way that, theoretically, it is possible to charge anybody in Kentucky for unauthorized practice of law, from a parent to a teacher to an accountant to a customer service representative to a business partner.
Moreover, Kentucky made lay representation and advocacy criminal, even as to representation and advocacy in federal administrative proceedings, which is expressly permitted by federal law.
Why is it so?
Did Kentucky satisfy all legal needs of the indigents that it can clamp down so upon lay advocates, and immigration representatives?
No, quite the opposite.
Six years ago Kentucky, with much fanfare, joined "two dozen other states" by forming the so-called "Access to Justice Commission" citing the increasing inability of Kentuckians to pay for necessary legal services.
The Legal Aide in Kentucky turns away thousands of callers per year, unable to meet the demand for services for lack of funding.
And, while Alma Rosa Bonilla was charged for accepting money for her services in immigration proceedings (which is legal under federal law without a law license), the Kentucky UPL statute prohibits lay advocacy regardless of whether it is paid or pro bono.
Under such circumstances, criminalizing lay advocacy runs contrary to the declared purpose of attorney licensing - protection of the consumer - and runs contrary to the U.S. Supreme Court case, Johnson v Avery, a 1969 case, which held that:
"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".
So, for 48 years, according to the U.S. Supreme Court decision, the State of Kentucky MUST allow unlicensed individuals to provide legal services in the areas where it cannot ensure provision of affordable licensed legal services.
There is no such provision in the Kentucky "practice of law" rule created for lawyers by lawyers, or in Kentucky UPL (unauthorized practice of law) criminal statute criminalizing everything that moves.
In the case of Alma Rosa Bonilla, the State of Kentucky has no AUTHORITY to handle immigration proceedings - that is a federal issue, and thus, by definition, cannot interfere into how advocacy is handled in federal administrative proceedings.
Moreover, as to criminalizing ANY services requiring legal knowledge, representation, counsel or advocacy, Kentucky very clearly does not make an alternative (same as the State of Tennessee back in 1969) "to assist illiterate or poorly educated" - or poor - Kentuckians in their needs for in and out of court services involving legal knowledge or advice, and involving representation, counsel or advocacy.
If Kentucky openly admits, by forming the "Access to Justice" Commission, to a wide "justice gap", then, under Johnson v Avery, Kentucky "may not validly enforce a regulation which absolutely bars" Kentuckians, for lack of money, knowledge and/or education or literacy, from obtaining the legal remedies they need and are entitled to.
Of course, membership in that Access to Justice Commission is another issue.
There are 30 members in the Kentucky Access to Justice Commission.
Note that NOT ONE member of the "Access to Justice Commission" is a representative of the class to be served - the indigent, the illiterate, the poorly educated Kentuckians. Not one.
Instead, out of 25 voting members of the Commission, 21, an absolute super-majority, are lawyers, judges or court employees, 3 are top government officials and one is a law librarian.
And, out of 5 non-voting "ex officio" members:
- one member collectively represents three law schools in Kentucky,
- one member represents the Kentucky Sheriff's Association - which has absolutely no relevance or connection to access to justice for the poor and illiterate;
- one member represents the Administrative Office of court,
- one member represents the Kentucky Justice Association, and
- one member represents the Kentucky Defense Counsel.
The most telling "membership" is the one of the Kentucky Sheriff's Association, the organization that is interested in the poor and illiterate criminal defendants to NOT have good representation, advocacy, information and legal advice - in or out of court, because otherwise, how will Kentucky fill its quotas in private prisons and feed its corrections officers and police officers, members of that association?
So, while the members of class to be protected are NOT included into the "Access to Justice Commission", all members, voting and non-voting, are members of special interest groups.
Once again, even amongst the non-voting "ex officio" members there are NONE who would be allowed to discuss the issues of access to justice who are actually members of the class allegedly sought to be protected - by the very interest groups that prevent such access to justice, partially by making legal education an expensive privilege, and criminalizing cheaper lay advocates and representatives.
And imagine - the representative of the Sheriff's association meets behind closed doors, as part of the "Access to Justice Commission" for the poor and illiterate, no less, and discusses court cases with judges - members of the same association.
Potential for corruption is poetic.
And imagine - the representative of the Sheriff's association meets behind closed doors, as part of the "Access to Justice Commission" for the poor and illiterate, no less, and discusses court cases with judges - members of the same association.
Potential for corruption is poetic.
So, Kentuckians can be assured that under the existing scheme of things, the justice gap will not be getting any narrower.
As to the criminal case against Alma Rosa Bonilla, I hope she can get it thrown out as completely unconstitutional - but then, to whom will she or her counsel be arguing the constitutionality of the UPL statute based on the "practice of law" rule created by the court?
To the same court, the same special interest group that created the rule, and enforces it in order to keep privileges for members of its class intact.
I will follow this case with great interest and report it on this blog.
Stay tuned.
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