"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 29, 2017

Issues in NWIRP's lawsuit against Jeff Sessions: is attorney ghost-writing for pro se parties and partial representation an attorney's constitutional right?

This is my third blog about NWIRP's lawsuit against Jeff Sessions portrayed in some media as a heroic deed.

I have written about conflicts of interest in connection with this lawsuit in representation of NWIRP in the U.S. District Court for the Western District of Washington here, and about conflicts of interest in NWIRP's Board of Directors and staff here.

The media, while hailing as good anything that is against Trump or officers in his administration, omitted to mention that the rule that NWIRP's lawsuit is attacking was introduced and enforced by the Obama administration in 2008.

What is even more bizarre is that NWIRP is asserting lawyers "constitutional right" to
  • not own up to their work (ghost-write pleadings),
  • not appear in proceedings in which they are advising clients, and
  • to represent clients only partially.
In its pleadings, NWIRP has written to the court that in represented cases clients fare better (4 to 5 times better, based on the outcomes) than unrepresented clients.


Yet, NWIRP is asserting their "constitutional right" to throw in for unsophisticated immigrant clients, often for those who do not know English, a sophisticated pleading (a petition or a motion), as a ghost-writer for a pro se respondent in an immigration proceedings, and then leave that same client to litigate what they threw in, on his own.

And, NWIRP asserts that they are actually providing their clients a benefit.

Let us model this on a hypothetical.

Imagine that a lawyer has a budget of over 6 MILLION DOLLARS - that's what NWIRP had in 2014 (the latest publicly available report).

Imagine that a lawyer is reviewing a case of ONE client - because a lawyer must have an undivided loyalty to every single client.

Is a budget of 6 million dollars enough to represent, from first to last day of immigration proceedings, ONE client?

Undoubtedly so.

Do NWIRP attorneys have any right (much less, a constitutional right), to instead emulate Jesus Christ and try to feed 5 000 men with 5 loaves of bread?

Because that's what NWIRP are trying to assert as their own right - and somehow as the right of their clients and potential clients.

They are claiming to the court in their lawsuit that:

  1. they do not have funds (6 million dollars per year is not enough) to represent people from first to last day of immigration court proceedings, and
  2. they have a constitutional right to provide consultations or to ghost-write pleadings for pro se clients, in violation of a disciplinary rule that was introduced by the Obama administration in 2008, because this way they will help more people.

Of course, if they just represent 100 clients from first to last day, and win all of these 100 cases, that will not be as impressive as saying that they "helped" by (ghost or partial) representation 10,000 people, as NWIRP is asserting in their lawsuit.

Now imagine an assigned attorney telling his client - I will only throw in one motion, and then you are on your own.

No court will allow that.

The court where they are suing will not allow NWIRP's own attorneys to get out of the case without the court's permission, and NWIRP knows that.

Immigration courts will not allow that either, there is nothing new about it.

In court proceedings in the blessed State of Washington (whose AG supported the NWIRP lawsuit through an amicus brief) withdrawal of an attorney over objection of a single party is prohibited without a court order - so, if a client objects, an attorney who is in the case, cannot withdraw without court's permission.

Is it constitutional?

Probably, not, but the constitutional right violated here is not the attorney's 1st Amendment rights, for sure.

It is the attorney's 13th Amendment right not to be ordered by the government into an unpaid servitude - and the 13th Amendment violation was, certainly, NOT asserted by NWIRP, because asserting that would clearly highlight that the attorney's "right" to ghost-write conflicts with the client's right for representation throughout the proceedings.

And that's what NWIRP is fighting - they are fighting AGAINST their clients' right to have NWIRP represent them once they step into an immigration case, as required by disciplinary rules of that court, until the successful or bitter end.

By the way, NWIRP practically lied to the court by manipulating the court with the statistics of outcomes of represented vs unrepresented parties in immigration proceedings, because those statistics were inapplicable to what NWIRP is doing.

NWIRP did not provide ANY statistics as to outcomes of its clients for whom they provided one consultation, ghost-wrote (possibly, by non-attorney illegal "advocates") one petition or one motion, and then let those clients hang out to dry on their own.

Since NWIRP asserts in the lawsuit their "constitutional right" NOT to represent their clients from the first to the last day of the immigration proceedings, statistics that NWIRP used for court comparing outcomes in represented vs unrepresented proceedings, is inapplicable - and was fraudulent to use in court (my personal opinion) in order to impress the court.

Why did NWIRP even file this obviously frivolous lawsuit?

The answer is clear - enforcement of the 2008 rule hurts their fundraising efforts.

As I mentioned above, it gives NWIRP, and their lawyers, more glory and more grounds for self-promotion to claim that they "helped" 10,000 people (without giving the statistics of outcomes for those 10,000 people and while claiming that identities of those 10,000 are secret - so there is no way to verify their claims that they actually helped those 10,000 people) than to openly, and following the immigration court rules, help, from the first to the last day of immigration proceedings, a much smaller number of people, but to actually help them by representation, not by bits-and-pieces consultations, ghost-writing and then USING those unnamed people in their further fundraising campaigns.

Once again, I would like to stress that NOWHERE in attorney conduct rules, federal or state, anywhere in the U.S., does a rule exist allowing an attorney for a non-profit organization to consider partial representation simply because by way of partial representation he will have more "heads" of clients to claim for purposes of reports and future fundraising - even if such partial representation hurts outcomes in the specific cases for specific clients, which it undoubtedly does, as NWIRP's own statistics indicates - unrepresented clients fare at least 4 times worse than represented clients.

So, when beating up on Trump and Sessions, no matter what they do, the press should at least look a little bit into the matter and figure out - maybe the truth is not on the side of those "revolutionaries" who are trying to filibuster Trump and Sessions not because they are doing anything wrong, but because they are not Hillary Clinton?

I will continue my analysis of the NWIRP's lawsuit.

Stay tuned.

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