"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.

Thursday, December 22, 2016

The failed promise of the limited scope representation and presumption of knowledge of the law

On December 16, 2016, New York Court Administration issued an administrative order of December 16, 2016 officially (but conditionally - by permission of court) allowing "limited scope representation" by attorneys.

In view of all of the above problems, New York Chief Administrative judge coughed up this kind of relief:

There is nothing revolutionary about the administrative order.

Attorneys ghost-wrote for unrepresented clients behind the scenes forever, and provided, also forever, one-time consultations on certain issues of an ongoing case.

The only difference the administrative order makes is that it will now allow representation of a client for one appearance - or for one motion - in court, but also, with court permission and at the court's discretion.

It could have been good and bad - had the procedure of how the "limited representation" been clearly set, which it hadn't been - for both clients, and good and bad for attorneys, too.

The bad is that an attorney would bear liability only for a portion of representation in litigation - and can thus make motions or appearances with a view to "perform" only for purposes of this motion or appearance - and not to fulfill a larger role to win the entire litigation.

Moreover, it is impossible, with a patchwork of attorneys performing discreet small tasks on the case to establish malpractice liability of that attorney - because, with few exceptions, it is impossible to establish for purposes of malpractice that it is the particular attorney's mistake at the particular stage of litigation that substantially caused the loss of an otherwise meritorious case for the client.

Moreover, if the client's case in the same litigation presents a patchwork of attorneys appearing "for one appearance" or for "one motion", which appearances are interspersed with no appearances at all, the case thus presents a potential problem of "too many cooks that spoil the broth" and ruin the case instead of helping, because each attorney will come with his or her own strategy.

The patchwork of representation though provides an excuse for judges to not consider the otherwise pro se status of litigants and to rule as if the litigant is represented by "competent counsel" - which is usually an excuse for courts to claim that, if any issues were not raised in litigation (and a "patchwork counsel" is likely not to raise a lot of issues, restricting him- or herself to just one narrow portion of litigation), that is because it was not malpractice, but some kind of "strategy" of "competent counsel".

Of course, judges do not want to deal with pro se litigants - to the point that New York judges claimed, and received this year, a large increase in their already high salaries claiming difficulties in handling the ever raising number of pro se litigants in their caseloads.

And, the order is good for attorneys who, once they have the risk of appearing in a case were - unfairly - kept by courts as slaves of their non-paying clients, because New York law allows withdrawal from a case only:

  • by a sworn permission of the client, or
  • by a court order - permission of the court,
and courts are notorious not to give such permission to withdraw "only" for client non-payment.

I was ordered by Judge John F. Lambert, assigned judge in Delaware County Supreme Court, to handle a trial for a non-paying client, even though the opponent presented in the trial ample evidence of her ability to pay - and I was supposed to litigate AGAINST those claims, while not being paid myself.

Of course, such attitude of courts, enslaving an attorney to non-paying clients, backfired since attorneys reacted to such court practices in two ways:

  • either by not taking cases at all whenever they would sense that the client will not be able to afford to pay throughout a potentially long litigation, or
  • claim huge and immediate down-payments at the outset of representation to offset the risk of future non-payment -
both of which tactics, which were reasonable on behalf of attorneys, in response to unfair laws and court practices forcing them to work for free - made it impossible for many people to obtain an attorney to represent them.

Supposedly, again, had the procedure for the December 16, 2016 administrative court order set through, pro se litigants would have benefitted from at least a patchwork of attorneys appearing at some stages of litigation, if the pro se litigant cannot afford their appearance at all stages.

I already wrote that this "partial" decision of a problem is not necessarily a good thing.

Imagine a doctor overseeing only a portion of a course of treatment, otherwise allowing the patient to self-medicate and self-treat - what good will such a strategy produce.

So, even if the procedure for "limited scope representation" would be set up - which it wasn't - it would have provided questionable benefits, if any benefits at all.

Despite the claim that the reason for the "limited scope" court order is to help pro se litigants, the benefits from such order will be obtained by judges who will be freer in their decisions because of a "competent counsel" representing the otherwise pro se litigants at a certain stage of litigation, and because they do not need to "deal" with a pro se litigant, and to attorneys who will now have the ability (at least theoretically) to undertake a case without considering the risk of non-payment.

In reality though, the "right" - of the client to have a "limited scope representation", or of attorney to engage in such representation - is not that straightforward, as per Administrative Order of December 16, 2016.

It is conditioned on three things:

  1. the attorney taking a "certified CLE course" for limited representation - and thus putting a bull's eye on him- or herself if the attorney then would decide not to do the "limited scope representation" by leave of court, but give behind-the scene consultations and occasionally ghost-write pleadings for a pro se litigant;
  2. having a specific "limited scope" retainer agreement spelling out the terms of limited representation - which is fair to both sides; and
  3. have permission of court to proceed with a limited-scope representation

Now, how will this permission of court work in practice?

A counsel usually does not appear in court unless the client signed a retainer agreement and paid the initial amount - and thus hired the attorney.

But, if the attorney feels that the "limited-scope retainer" can be made subsequently unenforceable by the court's denial of permission to proceed only as a "limited scope", not a "full scope" attorney of record, the attorney can still stick to the previous strategy - either abstain from representation or charge a large down-payment to protect him-/herself from the risk of non-payment further in litigation - the very strategy, caused by court's orders of free representation that made the administrative order necessary in the first place.

Attorneys can see this "permission of court" condition as a trap - because no procedure was prescribed in that order for an attorney
  1. FIRST appearing before the court in writing to ask for permission to proceed on a limited scope representation without actually representing the client;
  2. then signing a court-approved "limited scope representation" retainer agreement, and
  3. only then actually appearing on behalf of the client.
The way the order exists now, it changed nothing other than created an illusion that New York State Court administration wants to do something to close the "justice gap" - while at the same time  the same court system is relentlessly persecuting attorneys who work, pro bono and at reduced rates who already represent the poor, thus widening the "justice gap", and fights tooth and claw against federal lawsuits that try to restore unconstitutionally revoked licenses of civil rights attorneys.

The only "value" of the order is a declaration that New York State Court system cannot miss the writing on the wall and is starting to "unbundle" legal services by allowing a "break-up" representation.

The judiciary is resisting still the idea that it is the judiciary that actually CAUSES the justice gap by not allowing representation of those who cannot afford an attorney by anybody but a licensed attorney.

Such a requirement, of court representation only by a licensed attorney is, firstcontrary to the long-standing U.S. Supreme Court precedent Johnson v Avery, providing that

where the state cannot ensure legal representation,
(and such lack of legal representation results in massive loss of legal rights by the poor - which is what the administrative order of December 16, 2016 admits in its "Whereas" part):

- the state has no right to prohibit legal representation by unlicensed individuals.

Second, there is a fundamental constitutional right to privacy and autonomy in personal decisions of competent adults that restriction of court representation to only licensed attorneys violates.  Who will represent a person in court, is a personal decision of the litigant, and the government has no right to demand from the litigant that the litigant either accepts from the government its help to pre-approve, through licensing process, who the litigant wants to represent him/her in court - or have no representation at all.

As I stated in this blog previously, occupational licensing is help in checking out potential providers' backgrounds, training and moral character, and, as with any other type of help, a competent adult should be able to either accept it or reject it.

Third, in New York as well as in federal courts, an "expert" does not have to be licensed or formally educated to testify in court as an expert - an expert can be qualified as an expert without any formal education or licensing whatsoever,  "by knowledge, skills and experience", and based on self-education alone.

If an expert qualifies for court testimony to influence the court and the jury without any formal training - and that includes expert in law - there is no reason to heighten that standard for representation in the same court.

And fourth, but not last in importance, is the principle of presumption of knowledge of the law upon which enforcement of all laws in this country rests.

It is disingenuous (illogical, arbitrary, irrational and stupid) for the government to claim, on the one hand, that a person appearing Pro Se in court, without counsel, is PRESUMED to know ALL the laws, and that, for that reason, a Pro Se litigant's lack of knowledge of the law is no defense - and at the very same time claim that the Pro Se litigant does not know the law that he or she is presumed to know - enough to choose his own court representative, out of other members of the public, licensed or unlicensed, who are all also PRESUMED to know the law.

Under presumption of knowledge of the law, all the claims of lack of sophistication of litigants that are advanced by opponents of attorney regulation fall on their face.

What kind of extra sophistication is needed by a person presumed to know ALL the laws in order to hire another person, also presumed to know ALL the laws - whether the person choosing and the person chosen are licensed to "practice law" or not - and especially that what constitutes the "practice of law" is not defined by statute in New York at all, or with any degree of clarity.

Of course, the legal profession is the only profession that shot itself in the foot by claiming, at the same time, that:

  1. court representation, and legal services in general, need to be regulated because regulation (of attorneys by attorneys, in a classic "fox guards the chicken coup" scheme) allegedly helps protect unsophisticated consumers who do not know the law and do not know how to distinguish a good provider of legal services from a bad provider without government's help through attorney licensing; and, at the very same time, that
  2. every person suing in U.S. state and federal courts, including illiterate, the poor and the people who do not know the English language, is presumed to know all laws, regulations and ordinances of the United States, several states, down to separate townships.
Unlike lawyers, plumbers, as a licensed profession, did not put on the books laws claiming that everybody is presumed to know about plumbing.
And, unlike lawyers, doctors did not put on the books laws claiming that everybody is presumed to know about medicine, down to neurosurgery techniques.

But, plumbers and doctors are not dominating courts and state and federal legislatures and administrative agencies that produce and enforce the principle of presumption of knowledge of laws - the knowledge of which is the "merchandise" licensed attorneys deal in.
And, of course, the presumption of knowledge of the law is a "legal fiction" created and maintained for convenience of law enforcement - because, if people claim they did not know the law they are accused of having violated, laws will become unenforceable, and chaos will ensue.

Yet, this is a situation when the government, after it said that a legal presumption "A" exists, cannot now oppose the legal presumption "B" following from the legal presumption "A", that people presumed to know the law can choose whoever they want, licensed or unlicensed to practice law, and that unlicensed individuals are also presumed to know the law, and are thus perfectly fit, as a matter of law, to represent anybody in court or give to anybody legal advice, based on the law that they are presumed to know. 

Of course, the government never recognizes that it is wrong easily.

Instead of recognizing that attorney regulation is a stillborn child of the legal profession in order to protect itself from competition and secure high fees - and that this stillborn project backfired by depriving millions of people of court representatives of their choice, resulting in massive loss of basic human rights to custody of children, property, shelter, liberty and sometimes life - the legal profession is digging in and is trying to invent runarounds the writing on the wall.

The "limited representation" rule introduced in New York is yet another of such runarounds.  

Yet, the law, to be enforceable, should not be arbitrary and irrational.

And, therefore, pure logic requires that, in application to the presumption of knowledge of the law for law enforcement and the presumption of no knowledge of the law for choice of counsel and for the "practice of law" by unlicensed individual - that such arguments are inherently incompatible and thus irrational, void and cannot support laws, as a matter of due process of law. 

The government cannot cancel presumption of knowledge of the law - because then chaos will ensue, and laws will become unenforceable. 

But, the government cannot also maintain, as a matter of due process of law, that the same people who are presumed to know the law for purposes of being held accountable for its violation, are not presumed to know it enough to choose their own advisor about that law in and out of court, or that the advisor, who is also presumed to know the law, whether the advisor is licensed or not, is presumed to not know the law when he/she is not licensed to practice law (while what is the "practice of law" is not defined by statute).

It is time to point out that regulation of attorneys is conceptually unsustainable, not to mention unconstitutional, as depriving people of their access to court, aided by representatives of their own choosing - and it is high time for the government to recognize it, instead of beating around the bush and inventing half-measures that hurt rather than help bridge the "justice gap" caused by attorney regulation.

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