"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.

Monday, May 22, 2017

Immigration lawyers' lawsuit against the Trump administration - fighting for lawyers' right to NOT represent clients in the entire proceeding, and claiming to do that for the benefit of those same clients. Come again?

There is a hilarious piece in "Above the Law" by their staff writer Joe Patrice, who reportedly has 11 years of litigation experience, about the lawsuit filed by immigration attorneys against the U.S. Department of Justice and Immigration authorities - for allegedly threatening a non-profit in the Stae of Washington, the non-profit North Western Immigration Rights Proctice (NWIRP),  with "attorney discipline" for providing legal services to indigent immigrants, and for the DOJ's alleged attempts to "shut down" their asylum services.

The piece is full of derogatory rhetoric, but has no details about what exactly is happening and is claimed in that litigation, which is propaganda, not journalism and especially is not legal journalism.

So, I went to to get the first-hand information about the case, and I present it here to the public, with my comments, for the public's own review and conclusions.

Here is the complaint/lawsuit by NWIRP.

Here is their motion for a Temporary Restraining Order.

Here is the government's opposition to the TRO, catching NWIRP in multiple misrepresentations, and pointing out, correctly, that NWIRP has no standing to make claims on behalf of unnamed clients who are not parties in the lawsuit, as well as no grounds to ask for enforcement of an alleged ORAL agreement with an UNNAMED court administrator to not enforce a 2008 disciplinary rule applicable to all practitioners in immigration courts. 

Try filing a lawsuit to enforce

An oral agreement with an unnamed individual who does not have authority to enforce disciplinary rules against practitioners, or opt out of enforcing them, is not and cannot be legal - that is clear.

An ex parte communication with an unnamed court administration gaining a favor of not having a certain disciplinary rule apply to a certain group of attorneys is COURT BRIBERY - a crime.

Yet, NWIRP is happily asserting that that "agreement" must be enforced, and enforced nationwide, and judge Richard Jones

happily agreed, without giving any legal reasons for that!

And "Above the Law" is celebrating enforcement of an illegal ex parte agreement as a victory for civil rights?

I don't think you will find an attorney to dare to file such a thing, for a legitimate fear of sanctions for frivolous conduct.

Yet, NWIRP found not just one, but 8 lawyers, to file the lawsuit to enforce the illegal ex parte oral agreement to allow one group of practitioners to opt out of a long-standing disciplinary rule:

8 attorneys! 3 from NWIRP and 5 from a large private law firm.

And do you know that in their complaint against the federal government in its official capacity (meaning that NWIRP is suing American taxpayers, you and me, not just Trump and Sessions, as it is being portrayed in the press) the NWIRP is asking for costs and attorney fees of their frivolous litigation?

That is why NWIRP employed 8 attorneys of record? 

That is why attorneys from that private law firm (with high fees) are employed as attorneys of record, and especially attorneys with no listed experience in civil rights, attorney discipline or immigration litigation, the main issues in the lawsuit?

Here is the list of attorneys from Davis Wright Tremaine hired by NWIRP for this litigation (from the docket report of the case available on Pacer), and their experience reported on their law firm's website:

1) Jaime Drozd Allen - partner from Seattle, WA

Ms. Allen does not claim any experience in immigration law or civil rights on her law firm's website,

or on her LinkedIn profile, so there was no need to add her to this litigation other than to inflate attorney fees.

2) James Harlan Corning - associate, former software developer

Same as attorney Allen, attorney Corning has no reported experience in the three areas of law that the litigation is about:

  • civil rights;
  • immigration law;
  • attorney discipline,
but has a personal connection to the court, being a former recent law clerk and "judicial extern" for a judge in the very court where the case is being litigated:

3) Laura-Lee S Williams - associate

Same as attorneys Corning and Allen, Ms. Williams does not report litigation experience in the three major areas of law that the lawsuit is about.

Instead she advertises her prior work for the Defendant U.S. Department of Justice.  She should have been specifically excluded from litigation for this reason - but she was instead included.

4) Michele Radosevich - a partner

Also no reported experience in civil rights, attorney discipline or immigration law, but instead connections as a reported former lobbyist before the Washington State Legislature,

recent former president of the Washington State Bar Association, an attorney regulating body (Washington has a mandatory bar) and a president professor of the Seattle School of Law (an organization that obviously is wining and dining local federal judges, including the presiding judge):

Ms. Radosevich, apparently, has high enough connections to be able to yank the license of any attorney in the state of Washington - including that of the presiding judge Richard Jones.

5) Robert Miller - associate

Same as the previous 4 attorneys of record from Davis Wright Tremaine in this case, Robert Miller does not report any experience in civil rights, attorney discipline or immigration law.

But, same as attorney Corning, attorney Miller, a recent law school graduate without any experience needed for this case, is "coincidentally" also a former "judicial extern" for a judge (the same judge as attorney Corning worked for) in the court where the case is being litigated:

That is why NWIRP employed high-priced private attorneys in addition to their own lawyers, a law firm with multiple offices across the U.S. and one in China?

A firm ranked # 114 in the country in gross revenues?  Imagine the hourly rates of this law firm!

So, the law firm, with a team of 5 attorneys, 2 partners and 3 associates, having no experience for this particular type of litigation, was hired to:
  • inflate the amount of attorney fees claimed in litigation, and
  • to use their connections to influence the court?
That's what it appears to be.

Imagine how many indigent immigrants could be represented for the money paid, unnecessarily, to 5 private attorneys representing NWIRP in this frivolous litigation, asserting NWIRP's "right" NOT to represent immigrants throughout a given a case and to leave their clients on their own before immigration courts.

And, here is the TRO (temporary restraining order), heralded by Joe Patrice as upholding the law by the federal judge where the federal judge in question did not address any of the legitimate concerns raised in the federal government's response and granted the TRO without any explanation or legal grounds whatsoever, here is judge Richard Jones' 2-paragraph (!) no-legal-grounds "explanation" that the plaintiffs have allegedly met their burden of proof - because the judge says so. 

A judge's "say-so" has never before, without legal grounds or reasoning, been enough to sustain the extraordinary relief of a temporary restraining order.

So, civil rights litigation is definitely changing in this country - but only when the Trump administration is on the other side.

Because what is challenged is a "practitioner" (the government's term) or "attorney's" (NWIRP's term" disciplinary rule.

You know where such challenges usually end up?

In the garbage bin with sanctions against those who filed them - whether the challenge was meritorious or not.

This challenge was clearly not meritorious - because NWIRP was claiming a right to NOT represent clients in immigration proceedings under the guise of trying to stretch its resources to more recipients.

Of course, attorneys no constitutional right to ghost-writing in any administrative or court proceedings.

Of course, prohibitions on partial and ghost representation exist in many states, and no attorneys dreamt of challenging them as unconstitutional - legitimately fearing sanctions.

And, while Joe Patrice is alleging that it was all Joe Sessions' fault, the rule that NWIRP are challenging was introduced, and the initial inquiry commenced, under the Obama administration.

Moreover, after having read, in detail, while making notes and researching issues, the complaint and the motion for the TRO, as well as the opposition to that motion and the actual TRO order, I have come to a personal opinion that what NWIRP is doing is:

  • not fighting for their present or potential clients;
  • not trying to assert independence of representation, as they claim -
but are trying to stamp out competition by lay representatives who are allowed to practice in immigration courts, and to assert their right to not abide by the rules of the forum where they are practicing, immigration courts, to the detriment, not the benefit, of their clients.

And, for the public's information, the disciplinary rule that NWIRP "succeeded" to block - with Above the Law cheering - was meant to fight fraud in immigration proceedings, so now, with that rule blocked, fraud can proceed full speed.

Quite a victory.

There were several motions for amicus briefs filed in support of the TRO, most notably, by the Attorney General of the State of Washington, the attorney who usually OPPOSES civil rights lawsuit by Washington state attorneys challenging constitutionality of attorney disciplinary rules, so NWIRP is definitely in bed with the devil on this one.

NWIRP is claiming in their complaint that the federal government, by applying federal disciplinary rules to practitioners in federal immigration courts somehow interferes with the State of Washington's right to regulate the practice of law - while practicing before federal immigration courts is NOT practice of law since lay practitioners are allowed.

So far, the new precedential "law" continues to emerge in federal courts, and it is quite simple:

  • no evidence is usually enough to sustain a civil rights lawsuit against an attorney disciplinary rule; but
  • no evidence is necessary to sustain a civil rights lawsuit against a practitioner (including attorney) disciplinary rule, if that is aimed against the Trump administration.
It is very clear that federal courts have become political bodies that have foregone their oaths of office in order to suit the judges' and their supporters, political beliefs, the question arises loud and clear about the necessity to enact short terms of office for federal judges, and effective measures of accountability for misconduct in office, including decisions that disregard the law.

And, there are a lot of interesting issues raised in this peculiar and peculiarly frivolous lawsuit, which I will discuss in detail in future blogs.

Stay tuned.

No comments:

Post a Comment