"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, February 2, 2017

What is the practice of law? A survey of state laws

I am currently conducting research of laws across this country defining what is "the practice of law".

So far, I have found the following:

1) In all states of the U.S. knowledge of all laws by all people,
  • whether knowing English or not,
  • whether literate or not,
  • whether having any level of education or not,
  • whether trained in the law or not,
  • whether licensed attorneys or not,
is presumed as a matter of law.

2) All states in the U.S. regulate the "practice of law" through attorney licensing.

3) All states in the U.S. prosecute unauthorized practice of law as a crime.

4) In all states in the U.S. criminal law is codified - in other words, nothing is a crime unless committed into a statute.

5) In all states of the U.S. decisions of what constitute crimes are legislative decisions given only to elected public representatives, in the Legislatures;

6) The "practice of law" is an element in all criminal statutes regarding unauthorized practice of law - which is a misdemeanor (up to 1 year in jail + fines and surcharges in some states, and a felony, with the resulting loss of civil rights including the right to vote, in other states, with over 1 year incarceration in prison and over $1,000 in fines).

With that said, I found that what constitutes the practice of law, which is the direct subject of licensing, and an element of the crime of unauthorized practice of law, is not clearly defined by statute in any of the U.S. jurisdictions.

Here is how the practice of law is defined in different states:

·        By a court rule, definition is open-ended, not clear and subject to change at the whim of judges - in 6 states:

o   Arizona;

o   Colorado;

o   D.C.;

o   Louisiana;

o   Washington;

o   Wyoming

·        By open-ended and vague statutes - in 17 states:

1.      Alabama;

2.      Alaska;

3.      Georgia;

4.      Kentucky;

5.      Louisiana

6.      Maryland;

7.   Michigan

8.      Mississippi;

9.      Missouri;

10.      New Mexico;

11.   North Carolina;

12.   Rhode Island;

13.   Tennessee;

14.   Texas;

15.   Utah;

16.   Virginia;

17.   West Virginia

As an example of a vague definition of the practice of law here is the statute from the State of Alabama (there are same and/oro similar problems with vagueness, overbreadth and reaching constitutionally protected conduct in all statutes listed above):


Alabama.  Title 34. Professions and Businesses.  Chapter 3. Attorney-at-law.  Paragraph 34-3-6.  Who may practice as attorneys.

“(b) For the purposes of this chapter, the practice of law is defined as follows: Whoever, 

(1) In a representative capacity appears as an advocate or draws papers, pleadings or documents, or performs any act in connection with proceedings pending or prospective before a court or a body, board, committee, commission or officer constituted by law or having authority to take evidence in or settle or determine controversies in the exercise of the judicial power of the state or any subdivision thereof; or 

This section criminalizes:

1) parents representing their children wherever and drafting any documents on their behalf sent to schools (a "body" which is a "political subdivision" of the state with "powers" to "take evidence" and "resolve controversies"; yet, parenting is a constitutionally protected conduct;

2) legal guardians other than parents, of minors as well as incompetent adults; and

3) any agents of any kind, acting on powers of attorney or through contracts of agency.

Moreover, this section criminalizes an exceptionally broad scope of everyday conduct if it is "in connection" with - see the definition above.

What constitutes "in connection", what constitutes "proceedings", what constitutes a "body", an "officer" - is vague and subject to interpretation of courts on an after the fact, case by case basis.

This statute's plain text criminalizes, among other things, for example, a server who has served court papers on behalf of a party (even though requirements to servers in many states are simply to be 18 years of age).

The next subsections of the statute are no better, they define as "practice of law", acts of a person who"

"(2) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, advises or counsels another as to secular law, or draws or procures or assists in the drawing of a paper, document or instrument affecting or relating to secular rights; or 

(3) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, does any act in a representative capacity in behalf of another tending to obtain or secure for such other the prevention or the redress of a wrong or the enforcement or establishment of a right; or 

(4) As a vocation, enforces, secures, settles, adjusts or compromises defaulted, controverted or disputed accounts, claims or demands between persons with neither of whom he is in privity or in the relation of employer and employee in the ordinary sense;  is practicing law."

 Section (2) criminalizing the same conduct done for money, but does not criminalize the conduct done for free - which makes no sense: if conduct is wrong to the point of being criminalized by the government, it must be wrong whether it is provided for money or not.

Section (3) criminalizes actions of, once again, parents, law guardians, agents of any kind, victims advocates and lay human rights defenders who do "any act" (including emotional or financial support or providing merely INFORMATION, not advice - like bringing or pointing at a law book, pointing at a body of laws published on the Internet, or an article published on the Internet, in the hopes that that information might help a person to resolve his or her problems.

Section (4) messes up definitions in all previous sections by providing an exemption regulation of "practice of law" of anybody who "enforces, secures, settles, adjusts or compromises defaulted, controverted or disputed accounts, claims or demands between persons" if they have "privity" or "relation of employer and employee" "in the ordinary sense".

First, nearly every word of this section is subject to exceptionally broad interpretations.

Second, what is "in privity"

means "contact, connection or mutual interest between parties" of ANY kind - and may mean "privity of contract" (an agent), privity of familial relationship (spouses, parents, relatives to represent one another), privity of association (members of the same group), or just members of the same class action with a "mutual interest between parties".

So, Section (4) allows what the previous sections criminalized, which messes up any possible "notices" that this statute could possibly send to the public as to what is regulated and what is prohibited by the government, on the threat of criminal prosecution.

The prohibitions - and notices - are messed up even further in the following exception clause:

"(c) Nothing in this section shall be construed to prohibit any person, firm or corporation from attending to and caring for his or its own business, claims or demands, nor from preparing abstracts of title, certifying, guaranteeing or insuring titles to property, real or personal, or an interest therein, or a lien or encumbrance thereon, but any such person, firm or corporation engaged in preparing abstracts of title, certifying, guaranteeing or insuring titles to real or personal property are prohibited from preparing or drawing or procuring or assisting in the drawing or preparation of deeds, conveyances, mortgages and any paper, document or instrument affecting or relating to secular rights, which acts are hereby defined to be an act of practicing law, unless such person, firm or corporation shall have a proprietary interest in such property; however, any such person, firm or corporation so engaged in preparing abstracts of title, certifying, guaranteeing or insuring titles shall be permitted to prepare or draw or procure or assist in the drawing or preparation of simple affidavits or statements of fact to be used by such person, firm or corporation in support of its title policies, to be retained in its files and not to be recorded.”

In plain English, this section says:

an individual or a business, including a corporation, MAY draft documents for itself, if:

they have a proprietary interest in the property, and
if they do not record such document, but just keep it in their files -

which makes no sense, because it is a prohibition, at least for individuals, for pro se representation and to secure their own rights - on their own.

It makes no sense that the government WILL accept a pro se pleading, but WILL NOT accept a pro se deed that somebody drafted giving his own property to somebody else.

Moreover, this section is in conflict with Section (2) that allows to do everything in a representative capacity on just one condition - do it for free, without charging money or "rewards" or "pecuniary benefits" for it.

So, the statute gives no real notice of what is allowed and what is prohibited, is a conceptual mess, prohibits a broad scope of lawful conduct, including constitutionally protected conduct, and, prohibits in one section what it allows in the other.

Statutes from other states are no better.

And, the judiciary of the State of Alabama that is regulating the practice of law in the State, is more concerned with infringement on  their own power - right now it is supporting the Chief Judge of the State of Alabama suspended for defiance to a U.S. Supreme Court precedent - than to make any effort in changing the situation where access to court for all residents in the state of Alabama, guaranteed by the Petitions Clause of the 1st Amendment and the Due Process and Equal Protection Clauses of the 14th Amendment of the U.S. Constitution all of the judges were sworn to uphold, that access to court is curbed and "regulated", as to who can help litigants and anybody having any problem with any state "body", based on non-existing definitions, messed up kind-of definitions that give no notice to any reasonable person whatsoever and are begging for arbitrary after-the-fact application - which is a definition of unconstitutional acts.

But, let's go further with how the practice of law is defined in other states.

What constitutes the practice of law is defined on an ex post facto (after the fact) case by case basis by courts - in 24 states:

1.      Arkansas

2.      California

3.      Colorado

4.      Connecticut

5.      Delaware

6.      Hawaii

7.      Idaho

8.      Illinois

9.      Indiana

10.   Iowa

11.   Kansas

12.   Mississippi

13.   Montana

14.   Nebraska

15.   Nevada

16.   Ohio

17.   Oklahoma

18.   Oregon

19.   Pennsylvania

20.   South Carolina

21.   Texas

22.   Utah

23.   Vermont

24.   West Virginia

That means that "notice" of prohibited conduct is given to the public:

  1. not through a statute - in violation of the "notice" requirement given in criminal law only through criminal statutes (see, for example, Judge Aaron Persky's case - who was absolved of any wrongdoing because, at the time of sentencing of Brock Turner, having sex with an unconscious woman was not considered a rape by statute in the State of California);
  2. and not in advance - but after the person did the act, and charged for doing something wrong, the government tells him that it was wrong and why it was - which is a direct violation of the due process "notice" requirement, as well as of the "ex post facto" and "bill of attainder" clauses off the U.S. Constitution.

And, finally, there is no definition at all of what the practice of law is - there are 4 states like that in the U.S., including the state of New York:

1.      Hawaii – where the Legislature expressly refused to define the practice of law

2.      New Hampshire

3.      New York

4.      South Dakota

All of that boils down to one thing: regulation of attorneys in all states of the U.S., as well as criminal prosecutions for unauthorized practice of law in all states of the United States, while there is no clear statutory definition of the practice of law, lacks the constitutionally requires "notice" to the public of what exactly is being regulated and prosecuted - and is unconstitutional and thus void.

So - the "honorable" judiciary restricts help to those who seek access to court to redress grievances against the government, as guaranteed by the 1st Amendment, with full support of the "honorable" legal profession that benefits from such an arrangement financially, to the detriment of the public that has, as a result, the "justice gap" where an average American does not afford a licensed attorney to represent him in court, but is not allowed to get an unlicensed representative to help him in any way -
based on non-existing definitions of what it is that they are regulating and prohibiting.

Isn't that great?

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