"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, April 20, 2017

Russian lawyer bureaucracy, inspired by the American Bar Association, pushes to strip Russian consumers of legal services of diversity in servives and prices - and to create a justice gap. Just like we have in America

Today there was an interesting day for consumers of legal services in Russia.

A "congress" of the Federal Chamber of Advocates (the elite of attorney bureaucracy) was concluded today, adopting various changes as to regulation of attorneys.

The Congress did not introduce attorney monopoly - yet.

But Russian legal elite is vigorously pushing for it, claiming that attorney monopoly "justified itself" in "civilized countries" like Europe and America, and thus, should be introduced in Russia.

So - how justified attorney monopoly is in the U.S., as compared to the market of legal services in Russia?

I put together a comparative table as to how the market of legal services is regulated in Russia and in the United States.

Features of attorney regulation

Lay representation in court allowed? Yes/No

Is there a general licensing requirement as a condition to provide legal services?

Is the country a federation?

What is the area of the country?

6.602 million square miles
3.797 million square miles (nearly twice less)
Must a licensed attorney draft deeds?
No, a notary does that

Must a licensed attorney draft any contracts?
No, an in-house unlicensed lawyer does that
Yes – there is, only of late, some leniency to in-house attorneys, but still some sort of certification and checking is required, it is not in Russia

Must a licensed attorney provide any consultations?
No, usually an unlicensed lawyer-consultant does it

Must a licensed attorney provide court representation?

No, your next door neighbor can represent you in court based on a power of attorney

Does the government regulated attorneys?

What branch of the government regulates attorneys?

Is the branch of the government regulating attorneys the same as the branch of the government regulating other regulated professions?
No, all other professions are regulated by the executive branch

Do the regulators themselves have to have a law license in order to do their jobs?

Yes, judges regulating attorney licensing are themselves licensed attorneys, as a condition of becoming a judge

Are their criminal laws against unauthorized practice of law?

Are criminal laws for unauthorized practice of law specific for each subject of the federation?

Do criminal sentences for unauthorized practice of law involve incarceration? Yes/No
Yes, from 1 year for misdemeanors to 5 years where UPL is a felony

Is a law graduate, after passing a graduation exam and receiving his law degree, provide legal services?

Can a law graduate, based on his diploma alone, provide legal services in the entire country?

Is an attorney allowed by law, once licensed in one state, provide legal services in the entire country? Yes/No?

Can an attorney licensed in one state, but not licensed in another, be charged with UPL? Yes/No


Do regulators regulate personal behavior of licensed attorneys?  Yes/No
Yes, attorneys in New York and California are prohibited to have an intimate relationship with their clients

Do regulators regulate political behavior of licensed attorneys? Yes/No

Yes, attorneys are suspended/disbarred for out-of-court criticism of each other, the government and especially the judiciary, attorneys’ own regulators

It is very obvious that in the U.S., as compared to Russia, both consumers and lawyers have a worse business climate.

While both countries are federations in their political structure, in Russia, a law graduate, once receiving his/her law degree, can work without any licenses as a notary, as a law consultant for the public, as an in-house transactional counsel, or as a trial lawyer.

Moreover, even a never-licensed individual may represent people, simply on the basis of a power of attorney.

In Russia, as opposed to the U.S., no licensing authority (as yet) controls, as a condition of being allowed to earn a living by practicing his trade, personal and political freedom of a lawyer as to who to be with romantically, and whether and how to criticize the government.

As for consumers, in Russia a consumer is free to hire:

  • a next door neighbor, an unlicensed attorney, an attorney - member of the "Chamber of Advocates" - to represent him in court;
  • a notary - to draft a deed or a will.
Such diversity of choice and of a variety of educational levels of providers necessarily tells on prices.

The more credentials - the higher the price, but the customer in Russia (as yet) is allowed to choose a highly credentialed (Chamber of Advocates) and, thus, highly priced lawyer, or a less credentialed provider with a lower fee.

Moreover, in Russia, a federation, same as the U.S., with a territory nearly twice that of the U.S., a law school graduate, once he/she got her law degree, can practice from Moscow to Vladivostok without any restrictions.

Not so in the U.S.

In the U.S. a New York attorney can be criminally prosecuted for practicing, let's say, in Florida without a Florida law license.

Some states have "reciprocity agreements" with other states, allowing attorneys licensed in certain enumerated states to practice in their state without passing an additional state bar examination.

Yet, coastal states like Florida and South Carolina, where attorneys usually retire, do not allow admission on reciprocity, obviously protecting not the consumers, because retired attorneys are obviously skillful, but the local lawyers from incoming competition.

It is very obvious that it is a very expensive feat to hire a licensed attorney for every sneeze, for doing a will, for drafting a deed or a contract, for representing you in every matter, small or large, in court.

For that reason, Russians can hire non-attorneys or non-advocates (not members of the Chamber of Advocates, but still law graduates, even though not credentialed) - at a range of lower prices.

In the same situation, Americans simply go without a lawyer, which results in massive loss of rights, the so-called "justice gap".

Now the American Bar Association, through its Rule of Law pet project, apparently bribed enough people in the Russian lawyer bureaucracy, or showed enough people in that bureaucracy the beauty of instilling attorney monopoly to implode the existing system of provision of legal services in Russia from within.

We will see very shortly whether the elite of Russian "Federal Chamber of Advocates" (and American law firms that came into the Russian market and want to be as comfortable their, without competition, as they are in the U.S.) will get their way.

To protect the consumers, no less.

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