"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.

Wednesday, December 7, 2016

D.C. Bar does not "like" attorneys' Facebook "likes" - and comments

The D.C. bar - the very one that refused to pursue Hillary Clinton and her attorneys for destroying evidence in defiance of a court order and that instead targeted for discipline a whistleblower attorney Ty Clevenger for forcing into retirement a federal judge based on his sexual misconduct - issued an "ethical opinion" "cautioning" lawyers against fully expressing themselves publicly in social media.

The opinion suggests that:

1) law firms are "encouraged" to monitor their attorneys' posts on social media to verify whether their employees comply with disciplinary rules:

Since law firms are "encouraged" to monitor postings of lawyers in social media regarding compliance with any and all disciplinary rules, the claim that it is done to verify that the particular attorney does not disclose confidential information in social posts is just a pretext for a larger spying on attorneys' private out-of-the-job lives on the Internet.

2) attorneys are threatened not to lie in their social media posts, because that exposes them to the disciplinary rule regarding the attorney's "duty of candor":

Of course, the duty of candor is to the clients and to the tribunal, and not whether you look 70 or 30 in the photo you post online.

3) Attorneys are encouraged to post bold-lettered disclaimers that their communications on social media are not legal advice and do not lead to attorney-client relationships - with a warning that even a disclaimer may not help, if attorney's "subsequent conduct is inconsistent with the disclaimer".

Think how many friends you may have on social media who will not think you are a freak, if you put a bold-lettered disclaimer on your Facebook, Twitter, LinkedIn, Pinterest, Instagram, WhatsApp, Messenger, or what-not accounts.

Or - are you supposed to add that bold-lettered disclaimer to all your messages? 

Like:  "hey, how are you today? - but, please, be warned, that anything I tell you today in my messages is not and is not intended to be legal advice, and my messaging with you does not and will not lead to an attorney-client relationship."

Just think how many replies you will get to this one, and what kind of replies.

4) The ethical rule warns against "inadvertent acquisition of information", forming a "relationship" with unknown people (think accepting friend requests from people you never saw), or expressing your own views through comments, likes or tweets, if your views are contrary to the "interests" of your clients:

Apparently, the ethical opinion hints that

  • when clients hire an attorney, clients literary own him, even in his private life, and control his private life and his public political life as a citizen;
  • that an attorney should only represent people who he sides with on all issues and who have uniform interests - as in: an attorney should not represent clients with views and interests contrary to one another, and
  • that the prohibition is not on holding views contrary to those of the client, but against publicly expressing them - so this rule is a manual of hypocrisy for lawyers.
Of course, all of that is pure nonsense.

Imagine that an attorney is a child of a divorced couple, where the attorney's one parent was abusive against the other, or prevented the attorney, as a child, to communicate with the other parent.

Now, should this attorney be ethically bar by "personal interests" from representing a parent who would like to bar the other parent from communicating with the child for legitimate reasons.

Should the attorney be barred from communicating a child in such a setting.

Should the attorney lay bare all of his childhood to his clients, or turn them down?

Or, should the attorney still proceed in representing the client (despite contrary "personal interests"), yet, not post about his or her childhood experience on the social media - and not express his or her opinion regarding parental abuse or misconduct in preventing children from communicating with the other parent on social media?

Or, if an attorney is representing a mother alleging sexual abuse of a child by the father, should the attorney abstain from also representing, in a separate case, a father claiming that the wife hurts children by falsely claiming sexual abuse of children by the father and subjects them to endless sex abuse evaluations by OB/GYNs? 

Or, should the attorney simply not make known his opinions as to sexual abuse of children by their parents (when it really happens, and it does happen), and as to false allegations of sexual abuse of children by parents in order to win a court custody or divorce battle (and that happens, too)?

So, keeping your opinion mum is now the ethical obligation of an attorney?

So, it is expressing your opinion - not having it - that creates a conflict of interest and an unethical situation?

5) The opinion also "encourages" attorneys
  • not to allow social media to collect his contact list from his e-mail (which happens anyway if the attorney opens a web-based free e-mail address, which most of attorneys do for convenience and cost-control);
  • to monitor reviews about themselves and ask to remove incorrect posts - good luck with that; and
  • restrict privacy, communicating with only the people the lawyer knows well and trusts - which is, in our day and age, a requirement for a lawyer to go back to the stone age and live a life of a hermit.

Of course, the government, as a condition of allowing a person to earn a living in a certain government-regulated trade or profession, may not impose restriction on the person's personal and political life - and especially of the extent the D.C. bar tries to.

And, of course, where the "rules" are so sweeping, and so contrary to the realities of everyday life, and so vague and overbroad, that it can be fairly predicted that the rules will not be followed.

Which provides, in itself, a rife ground for selective enforcement and corruption.

After all, the legal profession "regulates itself", or, is engaged in unlawful regulation of its own competitors.  Consider that the U.S. Supreme Court has ruled in 2015 in North Carolina Board of Dental Examiners v Federal Trade Commission, that regulation of attorneys by super-majorities of attorneys is an antitrust violation, unless there is a statutory approval or an oversight by a neutral government body.

The current D.C. bar Board of Professional Responsibility issuing these opinions is comprised of 100% of attorneys:

Robert C. Bernius is an attorney from Nixon Peabody, a "Global 100" law firm, and a competitor to attorneys Bernius strips of law licenses and the right to earn a living.

Attorney Bernius is double-Ivy-League-educated (Brown University and Yale Law School),

self-reports on his law firm's webpage that he is admitted in 17 jurisdictions, including the U.S. Supreme Court,

and reports of his total recognition by the various "peers" (not customers) and being a member of the D.C. Board of Professional Responsibility as part of his business advertising -

like, "come hire me and my law firm, we are that good, and fully protected, and whatever we do, I will make sure we will never be sanctioned - after all, I am the law".   

Oh, and while issuing opions that are in direct violation of attorneys 1st Amendment and making the information that he is part of Board of Professional Responsibility part of his attorney advertising, Bernius has the audacity of claiming the highest rating and recognition on "ethics", "legal competency" - and the 1st Amendment:

The Vice-Chair of the D.C. Board of Professional Responsibility, Patricia G. Butler is an attorney and a highly-paid federal employee, and is thus also regulating her own competitors - apparently, in violation of federal antitrust laws.

I also wonder when does attorney Butler work in her job as the member and even the Vice-Chair of the Board of Professional Responsibility of the D.C. Bar - after hours or during the hours when us the taxpayers pay her over $226,000 per year to do something entirely different than regulating attorneys admitted by the D.C. bar?

Jason E. Carter, the Board's former Vice-Chair and present member, is an attorney and a high-ranking federal employee: he reportedly is an Associate Director for Europe and Central Asia of the U.S. Attorney's Office's Criminal Division, Office of International Affairs.  He is both a competitor to attorneys he disciplines, and a very busy man, on the payroll of us the taxpayers, and there is a question - where does he get time for the regulation of the D.C. bar, when his Associate Director job for the U.S. Attorney General, Criminal Justice Division, Office of International Affairs, for Europe and Central Asia must be taking all his waking hours?

Mary Lou Soller is a civil and criminal defense attorney in a D.C. law firm Miller & Chevalier dealing with tax law and white collar crime.  Ms. Soller is also a competitor of attorneys she is "regulating" through the D.C. Bar's Board of Professional Responsibility.

The next member of the D.C. Bar's Board of Professional Responsibility, Billie LaVerne Smith, is not an attorney, but is reportedly a federal employee, a dietitian employed in the Office of the Aging:

Thomas R. Bundy, III is an attorney and partner in a D.C. law firm Lawrence & Bundy.

Thomas Bundy is a competitor of attorneys he is "regulating".

John C. Peirce is an attorney in Washington, D.C., according to his own LinkedIn profile, and a competitor to attorneys he "regulates".

David Bernstein - if I've got the correct David Bernstein - is, according to his LinkedIn profile, an attorney for the Jewish Council for Public Affairs in Washington, D.C., and a competitor to attorneys he regulates.

Matthew G. Kaiser is a founding partner at Kaiser Dillon PLLC, a law firm in Washington, D.C., "a small litigation boutique firm", according to attorney Kaiser's biography on the site of George Washington Law School, where attorney Kaiser is listed as an adjunct professor.

Imagine - a partner in a law firm, an adjunct professor and a member of the Board regulating attorneys in D.C. - when does attorney Kaiser get the time for all of that?

Not to mention that attorney Kaiser is a competitor to attorneys he "regulates".

So, out of 9 members of the Board of Professional Responsibility, 8 - a super-majority - are attorneys "regulating" their competitors, or, rather, deciding how to squeeze out their competitors.

That's exactly what the U.S. Supreme Court - and the Federal Trade Commission - meant in stating that such anti-competitive regulation either has to have the approval of the Legislature or supervision of a neutral governmental body.

Upon my information and belief, D.C. bar has neither and operates in violation of federal antitrust laws.

And that is exactly what a former federal antitrust attorneys warned State Bars against - competitors disciplining competitors not for the benefit of consumers, but to quash competition.

The D.C. Bar's latest "opinion" as to how an attorney should behave during attorney's personal time on social media, is, apparently, one of the efforts of the "regulators" to create a net of vague and grossly over-reaching rules that would be violated anyway, so the "regulators" will decide who they would let live - as a favor that can be called in the future, or whom, of their competitors, they will sink.

By the way - I put a "like" on the Facebook page of D.C. Bar - not because I like the D.C. Bar, but because a "like" is sometimes just a bookmark to follow certain pages and events.

And the D.C. Bar, with its own presence on Facebook, cannot be unaware of such use.

Or - are they on Facebook to follow their own opinion - to spy on attorneys?

By the way, the U.S. Court of Appeals for the 4th Circuit has ruled back in 2013 that a Facebook "like" (which D.C. Bar opinion also "cautions" about) is a form of protected speech - in a case where an employee of a Sheriff's Department was fired for a Facebook "like" of his boss's opponent in a re-election campaign...

I wonder if the D.C. Bar is aware of such a development of constitutional law - or if they do not "like" it?

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