"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.

Tuesday, May 2, 2017

How Chief Administrative Judge of the State of New York Lawrence Mark single-handedly deregulated the legal profession and abolished the criminal statute on unauthorized practice of law

In the previous blog, I discussed a "Law Day 2017" article of a New York appellate judge about efforts of the court system to reinforce public FAITH in the rule of law.

That judge is actually the chief disciplinary judge for lawyers in 1/4 of New York State, and it is through her efforts that the attorney monopoly for court representation is maintained and reinforced, blocking indigent people's access to justice and making sure that the regulation "serves" only the rich who can afford a lawyer without any regulation and do not need protection against their own lawyers because they have enough money to obtain that protection through malpractice lawsuits and political pressure.

In the same "Law Day" splurge of articles by judges, yet another remarkable article appeared, authored by Chief Administrative Judge of the State of New York Lawrence Marks, with this intriguing headline:

In that article, Chief Administrative Judge Marks

stated this (among other things, of course):

But, that was a predictable - and desirable for lawyers - result of attorney monopoly.  Any economist worth his salt will tell you that a monopoly creates:

  • a shortage of providers of goods and services;
  • an increase in prices; and
ultimately hurts the consumer.

That's why we have anti-monopoly laws, right?

And, no matter how anybody is going to be persuading us that THIS is GOOD monopoly, for our benefit, unless we took part in establishing that monopoly

(and we didn't, lawyer bureaucracy decided it without us, and still do not allow "lay" people to make any meaningful decisions in attorney discipline, where lawyers appointing lawyers and making rules for lawyers constitute a "supermajority" of the disciplinary boards, so that a "lay" member of the public has no chance of having his voice and opinion prevail, if it differs from the opinion of an attorney, competitor of the attorney he is "regulating") -

that monopoly is not good for us.

And, that is especially so that attorney regulation, and any other occupational regulation, is offered as government help in checking FOR US, the background, competence, honesty and "fitness" of professionals, so that we could safely choose out of those government-vetted individuals.

Yet, if you simply say, as any competent adult can when offered help - no, thank you, I want to choose on my own, from a larger pool of people who were not pre-vetted by the government (and that is especially important when that individual simply does not want to trust government vetting when he either sues the government, or the government pursues him in a civil or criminal proceeding) - then, that individual will be told by the government - oh, no, this help of ours is MANDATORY, you cannot choose an unlicensed individual, that will be, for you, aiding and abetting unauthorized practice of law, and for your chosen court representative - unauthorized practice of law, a crime, and he/she will go to jail for that and have a criminal record.

The situation gets even more murky - and especially so in view of Judge Peters' claims of "reinforcing public faith in the rule of law"  that what constitutes that "law" in the area of "practice of law" is not clear - because what constitutes the practice of law is not defined by statute.

That means that no notice is given to the public as to what exactly is being regulated as "the practice of law", and that means that under such circumstances the government has no authority to regulate the legal profession. 

When that happens, the regulation must STOP to allow the legislature to figure out what the heck the government is actually regulating and give it a strict definition, to give the public the due process notice under the 14th Amendment that Judge Peters and other judges who published Law Day articles profess they love so much.

Not so.

They just go ahead and make rules as they go, in arrears.

And, for that reason, and because they want to gear those rules to the particular situations, to keep the gates closed to those who courts and the legal elite does not want competing with them, the "regulating courts" who are in the pocket of that legal elite, are all over the place defining what the practice of law is, and they define it as something entirely different if you are:

  1. a never licensed paralegal;
  2. a licensed attorney;
  3. a consumer of legal services;
  4. a suspended or disbarred attorney; or
  5. a nonlawyer "helper", like Judge Marks is describing in his article.
While practicing law without a law license is a crime in New York, and while the 3rd Department included into the practice of law the following activities listed in Gaspar Castillo's motion decided this past January,

judge Marks has the following opinion as to how to close the "justice gap".

So, what would be the "creative solution" in Chief Administrative Judge Marks' opinion?

But, wait a minute - isn't such an "aid of a trained non-lawyer" a crime of unauthorized practice of law?

It is, according to Matter of Castillo, and Matter of Brandes, and the latter was affirmed by New York State's top court.

Yet, Judge Marks marches right on:

So, Judge Marks tells you that appearing in court with an unlicensed individual, a "non-lawyer", "can greatly improve a litigant's court experience and also affects outcomes".

Come again?

Committing a crime on both sides (litigant and non-lawyer) of unauthorized practice of law or aiding and abetting UPL greatly improves outcomes of a court case - that's what the Chief Administrative Judge of the State of New York advises litigants on Law Day?

Judge Marks plunges right through, admitting now that courts, the very same branch that regulates the undefined "practice of law" and enforces criminal laws against unauthorized practice of law, actually break that same law themselves by doing this - courts are "harnessing" (whatever that cute word means) "the skills of non-lawyer volunteers to assist people in need".  In other words, courts that are supposed to enforce the law, are aiding and abetting unauthorized practice of law, in order to help the public overcome the justice gap created by regulation of the undefined "practice of law".

If ANY of these "services" would be provided by me, my husband, or any other suspended attorney, we would be immediately dragged out of court in handcuffs, for unauthorized practice of law.  So, why the "navigators", whose educational level is not known, who may not have even a high school diploma, allowed to work as substitute lawyers, and practice law without any license?

Why do we need regulation of the "practice of law" at all, if it causes the "justice gap", and if courts themselves disregard it by allowing this "bypass solution" of unlicensed "law navigators" practicing law in violation of New York Criminal Code?

Because regulation is for the rich?

Because representation by "navigators" are for the so-called "needy" people?

Then, what prevents the State of New York to just cancel regulation of the practice of law, so that the "needy people" can simply choose whoever they want to represent them in court?

Why control people's private choice of their own providers?

Chief Administrative Judge Marks writes:

Helping litigants file answers in Housing Court may be the practice of law in New York.  At least, it will be if I (a suspended attorney) try to do that.

Since there is no "navigator" exclusion in the UPL criminal statute in New York, Judge Marks is praising people committing the crime of UPL.

Moreover, Judge Marks points out that advice from nonlawyers may "improve outcomes" for litigants in court.

Of course, there are questions to such a hilarious approach to court representation.

  • Why did it suddenly stop being a crime of UPL for "navigators", "Legal Hand" and such like "helpers"?
  • Who amended the UPL statute so that it is no longer a crime - Judge Marks?  He has no authority to do that;
  • Why it is OK, under the current scheme of attorney regulation that established attorney monopoly specifically to protect consumers from incompetent service providers that in "consumer court" especially, people will be represented by non-attorneys, "consumer advocates", while opposed by licensed attorneys represented banks?  So, Judge Marks finally recognized that representation by a licensed attorney is the privilege of the rich?  If that is so, who does attorney regulation protect?  Those rich people who can afford to protect themselves?

And, last but not least:

  • did law school education, bar exam, fitness committee and law license become obsolete because, as Judge Marks confirmed, as "research shows", representation by non-attorneys is just as good and improves outcomes of otherwise unrepresented parties?
Of course, Judge Marks finishes with lip service to the UPL statute and is saying that he is not promoting or condoning unauthorized practice of law.

Yet, by his article, that is exactly what he is doing.

As well as making the death toll of attorney regulation sound louder.

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