"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, November 21, 2016

The California State Supreme Court overrides the State Legislature and orders funding of attorney discipline - the discipline that, according to the same court, has no meaning

That one decision made the entire attorney regulation system in California, the system that exists since 1926 and is mired in controversy since its beginning, completely meaningless.

Yet, it continued.

And, of course, California State Bar - regulating lawyers by lawyers, for reasons that have obviously nothing to do with protection of consumers of legal services (since suspended attorneys could provide as good a representation as licensed attorneys) - continued to operate like nothing happened.

In 2012, the annual dues of the State Bar were set by the State Legislature at $410.00 from every attorney licensed in California - which was necessarily put into the fees of California lawyers, as a cost of doing business.

 The State of California Legislature stopped short though from enacting a law that would demand the State Bar of California to split its regulation and its professional advocacy functions - which should be a requirement for an "arm of the government".

 Nevertheless, the funding bill that would allow the State of California to collect membership dues, did not pass this year.

 So, what did California State Bar do when it was stripped of ability to collect member dues for purposes of attorney regulation?

 Did it stop collect membership dues - because there was no law allowing California State Bar to do that?

No way.  The California State Bar bypassed the lack of Legislative bill authorizing it to collect annual fees and applied to the California State Supreme Court for an override of the Legislature.

The California Supreme Court stepped in and allowed the California State Bar - in the absence of the required bill allowing to charge annual membership fees - to charge every attorney a "regulatory assessment", without indicating an amount - so, the amount can be unlimited, to fund the disciplinary system, whether that particular attorney is subject to disciplinary proceedings at the time the fee is charged, or not.

So, the California Supreme Court is now defying the Legislature in order to allow its own "administrative arm", the California State Bar, to do exactly what the Legislature did not allow it to do - to collect membership dues, albeit in a somewhat reduced amount.

That is the same California Supreme Court, remember, that claimed that representation by a non-attorney (an attorney whose license was suspended for non-payment of those same membership dues) is effective representation - even though it is also unauthorized practice of law.

Let's recall that regulation of attorneys - by attorneys and judges - must be slam-dunk and free of any conceptual problems.  Because judges and attorneys are legal experts, right?  That was the underlying reasoning for allowing regulation of attorneys by attorneys and judges, and not by lay members of the public, right?

Yet, it is an ongoing mess.

Because the top state court of the State of California:

1.      makes prosecutors of attorney disciplinary proceedings its own "arm", creating an unconstitutional accuser-adjudicator problem;

2.      legislates (illegally) for funding for disciplinary proceedings from attorney-members of the State Bar; and

3.      makes attorney disciplinary proceedings meaningless because representation by a suspended attorney, in the opinion of that same court, is as good and effective as representation by a licensed attorney - so WHY LICENSE ATTORNEYS THEN?

And, you know how the State Supreme Court of the State of California got out of the quagmire that it is overruling the State Legislature and instead legislates on the issue of funding of California State Bar?

That's it - when every attorney licensed to practice in the State of California receives a demand for a "charitable donation" to fund a government agency's investigative and prosecutorial activities, that is called "voluntary" and not mandatory.

Of course, if a donation is voluntary, it cannot be of a pre-set amount from each licensed lawyer of the State of California.

Because, if a donation is voluntary, it may be given or not given, and, if given, it can be given in any amount at all, or "in kind", not of a set amount of $297.00 from every "donee".

Nevertheless, the "donation" ruse was immediately blown by the press, where the court's pretended non-interference with the State Bar's solicitations of charitable donations of $297 from every licensed attorney in the State of California in order to fund the State Bar's disciplinary proceedings (or, most likely, salary and benefits of disciplinary investigators and prosecutors) was presented as a direct order allowing the State Bar to do what the Legislature did not allow them to do - to CHARGE California lawyers an annual fee of $297.

Yet, at the same time as claiming that the court will not interfere with solicitations of "donations", the court also did two things:

And, on November 17, 2016, the California State Court issued a direct order allowing the State Bar to collect a "special regulatory assessment" from California attorneys, without indicating HOW MUCH IS TO BE COLLECTED.  So, since the order only speaks of a "regulatory assessment", but does not provide for the amount, supposedly that gives authority to the California State Bar to set that "assessment" at any amount, at its whim.

When a court orders financing of investigations and prosecutions of its own "arm" dealing with such investigations and prosecutions, at the time when the State Legislature, charged with that duty, specifically refuses to so do - because of controversies and unethical behavior within the State Bar - that legislative act makes the court so much an advocate for the prosecution that disciplinary activities that the court felt it has an "inherent constitutional authority" to fund became completely and irreversibly tainted.

I do not know about authority of the California Supreme Court to fund disciplinary prosecutions of attorneys.

But I know that the U.S. Constitution is the Supreme Law of the Land, and that the California State Constitution may not provide to California attorneys subject to discipline LESS protection than the federal Constitution does.

And, under the federal Constitution, when a Court acts as a legislator and an advocate, financing activities of a disciplinary prosecutor, and when the disciplinary prosecutor is considered an "administrative arm" of the disciplinary court, such a situation is intolerable under federal constitutional law as an "accuser-adjudicator" problem, invalidating all orders on discipline of California attorneys.

Not that the judiciary would care for doing anything unlawful.  They are the law in this country. 


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