"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 government's bait-and-switch for attorneys working for the poor

When I was entering law school, we had a week-long orientation.

My future law school classmates, kids with stars in their eyes, told me during that orientation, that their purpose in life is to serve the people, the indigent, those deprived by the government or "by the rich" and "by the corporations", of their civil rights.

Yet, by the end of law school, reality settled in in the form of student loans, and my law school class, those kids who were so eager to work for the poor and against infringements upon civil rights by the government, "the rich" and "the corporations", went, in their overwhelming majority, to work for the government, the rich, and the corporations.

In the law review article by law professor Professor Lisa Nicholson - who provides excellent references to other materials and excellent statistics, but makes illogical conclusions from her own information (that the "justice gap" should be bridged by forced labor of attorneys and by increase of attorney registration fees and bar dues) - Professor Nicholson provides astounding figures:

  • over 60 million people in the U.S., per year, cannot afford legal representation, and
  • while the legal profession claims that it is not a business, and that its main purpose is to "serve the public" rather than work towards a bottom-line, the legal profession is stratified - with an overproduction of lawyers, and great competition over positions in rich law firms, and, on the other hand, with shortage of lawyers for the poor (1 full time attorney working for the poor per 14,000 of indigent litigants).

The legal elite, including the judiciary, continue to pay the lip service to those attorneys who serve the poor, while their actions, to the contrary of their words, speak louder than those false declarations.

  1. The promise of 42 U.S.C. 1988 to attract attorneys into representing the poor without pay in civil rights lawsuits against the government, in the hope of being reimbursed at the end of litigation, results in:
    1. dismissals of most of civil rights actions based on this or that judicially created barrier - so the attorney who undertook litigation for free, does not get paid under 42 U.S.C. 1988;
    2. sanctions imposed upon civil rights attorneys for plaintiffs for "frivolous conduct" - "frivolous conduct" being either novel constitutional arguments, or constitutional argument based on precedent that courts do not want to acknowledge - naturally, the civil rights attorney does not get paid under 42 U.S.C. 1988 and remains with nothing;
    3. clients in civil rights litigation, those same clients who did not pay the attorney at the outset, pointing out that either they will pay themselves, or the attorney will be reimbursed through 42 U.S.C. 1988, do not pay, fire the attorney before the end of litigation, and settle the case on a condition that they do not apply for attorney fees under 42 U.S.C. 1988 - and courts rule that attorney fees of the attorney who was cheated out of them, do not belong to the attorney, but to the client, because 42 U.S.C. 1988 gives the clients, and not the attorneys, to apply for legal fees, and, if the attorney was fired for cause or for no cause, the attorney has no recourse to use 42 U.S.C. 1988 and get paid.  Under 42 U.S.C. 1988 an attorney who did not represent the client from the beginning to the end of litigation, do not have any rights (and they can be dismissed by the client without cause at any time during litigation) - and the client, being an indigent, will provide no hope of recovery; so the civil rights attorney can easily get cheated out of his or her payment under 42 U.S.C. 1988;
    4. even when clients do not want to discharge the civil rights attorney, the court can revoke the attorney's license and deprive the clients of their civil rights attorney - and the attorney of his or her legal fee for years of representation under 42 U.S.C. 1988;
    5. even when a civil rights attorney represented a client from beginning to end of litigation, the court may, out of spite, delay ruling upon the legal fee, forcing the attorney into bankruptcy - as it happened to California civil rights attorney Patricia Barry, the attorney who gave all women in the U.S. the gift of protection of law from sexual harassment in the workplace, and who, after winning the case in the U.S. Supreme Court, was waiting, on remand, for 1.5 years for a decision on legal fees under 42 U.S.C. 1988, while she was experiencing financial hardships and finally had to file for bankruptcy.
2.  Solo and small firm attorneys, criminal defense, Family Court and civil rights attorneys are predominantly targeted with attorney discipline.

3. Many judges are treating solo and small-firm attorneys in an openly derogatory fashion, calling them, as the now-retired Delaware County (NY) Judge Carl F. Becker did -  "bargain basement" attorneys and that "you get what you pay for" - meaning, that the underpaid public service attorneys necessarily are bad quality attorneys.

4.  Extraordinary things are done by courts to attorneys working for the poor.

Yet, despite underpaying, overworking and treating attorneys for the poor like shit - excuse my elaborate French - the government continued to lure - until recently - those "bargain basement attorneys" into low-paid public service positions by a promise that their oversized debts for law school education, their student loans, will be forgiven if they work for 10 years in public service and pay their loans during that time.

But then, the government, the U.S. Department of Education, now decided that it is not fiscally prudent to honor that commitment - the commitment upon which thousands of law school graduates relied when entering law school and when entering public service instead of lucrative mammoth rich law firms.

And, the American Bar Association is now suing the U.S. Department of Education - while at the very same time revoking certifications of certain law schools, which leads to revoking of student loan support of all students, not just those who plan to enter public service, and leaves students already halfway through the school, or close to graduation, without a degree - or hope of receiving one, simply because the school allegedly does not adhere to the "standards" of ABA, a corporation with foreign financing.

Since Charlotte Law School was oriented at the so-called "non-traditional" students, those who enter law school at an older age, not right after college, or who continue to work and study - and who are more likely to go not into the high-rise mammoth law firms, but into representation of the poor, and since Charlotte Law Schools offers 13 law clinics teaching its students how to represent the poor, it is quite disturbing that the killing of the law schools overproducing lawyers starts from those schools who produce lawyers working for the poor - under any pretexts.

Bar passage rate is NOT a good predicting factor of the quality of law students.

Bar exams are highly stressful, timed, and law professors preparing law students for such bar exams (and for law school finals) openly call exams "brain dumps" - meaning that students will forget all that they dumped on the test sheets after they took the exam.

The value of bar exam preparation, or of bar exam passage, under those circumstances is zero, and poor performance on subjects that have nothing to do with representation of the poor in criminal, family or civil courts, should not preclude attorneys who do want to serve the poor from practicing law.

It is apparent that the legal elite does not care about the fate of indigent litigants, or about the fact that regulation of attorneys under the guise of protecting the clients do not protect 61 million pro se litigants who, as a result of that regulation, and the resulting monopoly established by the legal profession for itself, cannot afford a court representative.

And, it is apparent that, despite all odds, there are still people who want to serve the poor - but who are undercut by the government every step of the way, despite lip service of "supporting" those who want to do "public service" and represent the poor in court.

I am confident that 200 years from now, when none of us currently living are alive any more, regulation of attorneys that created

will be a shameful thing of the past.

I only hope that the inevitable agony of attorney regulation, happens quicker and results in less trauma and loss of rights to the people.

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