"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.

Sunday, April 9, 2017

Once again on what is exactly attorney regulation (and any other occupational regulation) - protection of the public or protection of attorneys from competition? And are courts regulating attorneys acting as administrative agencies, after all?

Often, truth about games government plays and lies it tells the public comes out when competing interests of various economic groups clash and when, in the zeal to promote one "cause", the government overlooks that it exposes its own lie regarding another important issue.

For example, the U.S. Congress has enacted a statute, 8 U.S. Code § 1621 called "Aliens who are not qualified aliens or nonimmigrants ineligible for State and local public benefits".

That statute includes into public benefits professional licenses:

"(c) “State or local public benefit” defined
(1) Except as provided in paragraphs (2) and (3), for purposes of this subchapter the term “State or local public benefit” means—
any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government".

Now, what would be wrong about that?

What is wrong is that regulations of professions is claimed to the public to be necessary for protection of the CONSUMERS, of the PUBLIC, not of the licensed professionals.

If that is true, a license is a restriction, not a "public benefit" for the licensed professionals.

What is also interesting, specifically in connection with regulation of attorneys is that 8 U.S. 1621(c)(1)(A) talks, as about public benefits, about professional licenses "provided by an agency of a State or local government".

Attorneys are regulated by the judiciary branch that, when I challenged it in federal court pointing out that attorney regulation is an administrative function and attorney disciplinary proceedings are administrative in nature, claimed to the federal court (and the federal court agreed) that such proceedings are judicial in nature.

New York State Attorney General is representing in New York everybody in town - all three branches of the government, including the prosecutorial, investigative and decision-making side in attorney disciplinary proceedings.

So, the New York State Attorney General was arguing to the 2nd Department reviewing a case of application for admission to the bar to the 2nd Department's attorney disciplinary committee while arguing to both that they are an "agency" within the meaning of a federal statute, and that what they give (law licenses) is a state agency giving out a public benefit to the holder of the law license.

The same New York State Attorney General is arguing to federal courts, repeatedly, that Appellate Divisions and attorney disciplinary committees are not administrative agencies, but are members of the judiciary branch.

Those two arguments are mutually exclusive, and, thus, frivolous and fraudulent.

But, who is going to discipline the New York State Attorney General when he represents all judges in the State of New York, and when he represents all attorney disciplinary investigators and prosecutors in New York who can easily yank law licenses from all judges in federal courts sitting in New York, thus subjecting them to impeachment - while judges are reviewing civil rights actions where New York State Attorney General is opposing such civil rights lawsuits, and is advancing these mutually exclusive, and thus, fraudulent arguments?

Once again, who is going to discipline the New York State Attorney General for making fraudulent arguments to the court while representing regulators of the judges' own law licenses?

Yet, while the New York State Attorney General can continue to lie all he (and his staff) wants to courts in view of their apparently impunity, it is quite apparent that, conceptually, the same law license cannot possibly serve BOTH as a measure of protection of the public, AND as a "public benefit" given by the state to lawyers, from whom the state government is protecting the public by means of that same law license.

Moreover, when the New York State Attorney General acknowledges that a law license is a "public benefit provided by a State agency" in one setting, it is then fraudulent to assert that courts and their attorney disciplinary boards do not operate in attorney regulation as agencies (executive branch), but operate as courts (judiciary branch), in order to obtain benefits for the government that is available to the judicial branch and is not available to the executive branch.  That's another "chameleon" argument by the New York State Attorney General that is inherently incompatible.

Had New York State Attorney General been consistent in its argument that attorney regulation is for protection of the public and that the regulating court is not acting as an agency, but as a court, it would have advanced two arguments in the Matter of Vargas that it did not advance:

  1. 8 U.S.C. 1621 is not applicable to attorney regulation because a law license is not a public benefit to the attorney, but is a measure of protection of the public, not attorneys;
  2. 8 U.S.C. 1621 is not applicable because the regulator in the proceedings is not a "State agency", but a court.
None of these arguments were advanced, instead, the N.Y.S. Attorney General wholly endorsed both points:

  1. that a law license is a public benefit to the attorney and not a measure of protection for the public (because it cannot be both); and
  2. that the regulating court that issues and revokes licenses it a "State agency".

I understand that, given the absolute impunity from any discipline or accountability, and the ability to have "independent" federal judges (licensed attorneys regulated by private attorney disciplinary boards sitting in secret) rule in their favor, no matter what the law says - one and the same thing, the law license and regulation, cannot be used to provide benefits to both sides - to protect the consumers from attorneys, and to provide a benefit to the attorney.

As I said, truth sometimes seeps out inadvertently.

No comments:

Post a Comment