"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: what is the state interest in federal regulation of practice in front of a federal administrative board?

This is my fourth blog regarding the lawsuit by non-profit NWIRP portrayed as a heroic deeds in the press.

I covered
  • conflicts of interest in court representation of the lawsuit here;
  • conflicts of interest in composition of the Board of Directors and staff of NWIRP here;
  • conflicts of interest regarding assertion that one-time ghost-writing for clients somehow serves clients' best interests here.
Now I am raising another issue - what is the "interest" of the State of Washington to interfere into this lawsuit as a "friend of the court" (amicus)?

First of all, I already wrote that two current members of the Board of Directors of NWIRP, Teresa Mosqueda and Regina Garcia, are employees of the State of Washington, and, as to Garcia, of the Washington State Bar (the regulator), which creates an impression that NWIRP is a part of the government of the State of Washington.

Moreover, that is what the Washington State Attorney General was directly asserting in his amicus brief, claiming that a staff attorney in NWIRP, paid by grant money from Washington State Attorney General, is actually conducting functions of a criminal investigator or prosecutor for the Washington State AG.

So, NWIRP's "partnership" with its own regulator (Washington State AG regulates NWIRP as a non-profit) is snitching on its own competition - because the AG considers as "notario fraud" representation for money (not necessarily bad representation) without being admitted in front of immigration courts - which is the same as NWIRP's own "legal advocates" .

Yet, the Washington State AG prefers not to prosecute NWIRP's "legal advocates" for "notario fraud", but instead gives NWIRP money for snitching - through "cy pres grants" no less, while installing into NWIRP an attorney to discharge a function of a de facto Washington State Assistant Attorney General, which is, of course, an illegal act of sub-delegation of the Attorney General's power to a private non-profit, in exchange for
  • squashing the non-profit's competition;
  • non-prosecution of the non-profit for their own "notario fraud" acts;
  • giving the non-profit money in exchange for their snitching;
  • giving the non-profit the status of a de facto Assistant Attorney General, by placing a paid attorney on its staff with the functions of the Assistant Attorney General, and
  • even referring clients to that non-profit.

Considering, once again, that two of the State of Washington's high-ranking employees are on the Board of Directors of the non-profit - regulated by the State of Washington - the relationship is more than murky.

It is even murkier that, while asserting the interests of the State of Washington in this litigation, the State of Washington did not attempt to intervene as a party.

But, the elephant-in-the-room question, and especially for the State of Washington is - when the challenged rule in litigation is a FEDERAL rule regulating practitioners in front of a FEDERAL agency, what the heck may be the State of Washington's "state interest" in such regulation?

Isn't it a crystal clear case of separation of what state government does and what federal government does?

Isn't the State Attorney General of the State of Washington trying to butt into what the state of Washington has absolutely no right to regulate - appearances in representative capacity in front of a federal agency?

And isn't the State Attorney General of the State of Washington, in order to cater for its pet non-profit, wasting taxpayer money (of state and federal taxpayers) by supporting a frivolous lawsuit against the federal government in their official capacities, thus suing all of us, American taxpayers, to block the federal government from providing a BENEFIT to the immigrants in immigration proceedings?

The rule that the State AG is opposing (by supporting the NWIRP lawsuit) is a federal rule created to do the same thing as the State AG paid NWIRP $125,000 for doing - fighting the "notario fraud".  How does all of this make any sense - other than that the name of the Defendant is Jeff Sessions, and thus any frivolous lawsuit against him must be allowed to the pro-Clinton lawyers as a matter of right?

Let's ask the question again - what is the State of Washington's interest in regulating representation in federal agencies?

The State AG has the audacity in claiming, in his amicus brief, that the FEDERAL rule regulating appearances of representatives in FEDERAL immigration proceedings in front of a FEDERAL agency allegedly violates the 10th Amendment right of the State of Washington to regulate the practice of law IN THE STATE OF WASHINGTON.

Apparently, such a claim can be made only to an extremely "sympathetic" judge - because any fair judge doing his job would have tossed such a claim, with sanctions.

First of all, the federal agency allows to practice in the immigration courts the following individuals:

  1. accredited attorneys in good standing;
  2. accredited non-profits and their employees who are separately accredited with the courts (which NWIRP's multiple employees are not);
  3. law students;
  4. parents and/or legal guardians of children who are subject to immigration proceedings;
  5. "reputable persons", by permission of immigration courts.

Moreover, as to the last category, the "reputable persons", federal courts do not consider as "reputable" people who represent respondents in immigration proceedings for compensation (even a very low compensation), and who do it frequently.

That, of course, makes no sense at all - because doing business for money, per se, does not make anybody a disreputable person;  and, having experience in doing a certain thing, like representation in an immigration proceeding, does not make a person automatically a "disreputable person".

Well, in federal immigration courts, it does.

So, the rule existing in federal court may be challenged - BY CONSUMERS - as having nothing to do with the declared purpose of regulation, protection of CONSUMERS from

  1. dishonest and/or
  2. incompetent

Charging money for services, or having experience in your business, does not make a person automatically incompetent and/or dishonest - that's clear as day.

Moreover, if the situation with representation in immigration proceedings is as dire as NWIRP asserts in its pleadings, so that NWIRP takes upon itself the role of Jesus Christ trying to feed 5,000 people with 5 breads (provide one-ghost-motion-per-client "services" to spread their 6 mln dollar per year budget upon a maximum number of claimed clients), neither the federal, not the state government have ANY right to regulate that representation AT ALL, according to the U.S. Supreme Court precedent that is on the books FOR 48 YEARS:

"In the absence of some provision by the State of Tennessee for a reasonable alternative to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners".

When the "reasonable alternative" is throwing in a ghost-written motion and then leaving the immigrant without a legal representative or a translator to fight his case in court on his own, it is obviously not a "reasonable" alternative.

Yet, the State of Washington and the federal government are fighting over the right to regulate where they obviously may not do so, because their regulation CREATED a crisis of the lack of representation, and fighting "notario fraud" is (1) counter-productive, as it deprives people of ANY representation, simply because they cannot afford an attorney or were not lucky enough to get full free representation from a non-profit; and (2) deprives consumers of their choice of representative, possibly, of their only choice.

So, the fight between the state and federal governments on the issue of who gets to regulate what NEITHER of them have a constitutional right to regulate is clearly frivolous.

But then, there are more conceptual inconsistencies than disobedience of the U.S. Supreme Court precedent of 48 years.

I will just list those inconsistencies.

  1. States may not interfere with how federal government regulates practice in federal agencies.  So, the State of Washington has NO interest whatsoever in how federal immigration courts regulate their representatives - and claiming that such regulation affects "residents" of Washington State (illegal aliens) - does not create any state interest;  creating a statute, as the State of Washington did with lobbying of its AG and NWIRP, on the subject of fighting "notario fraud" in FEDERAL proceedings does not create such a "state" interest either, as federal law pre-empts inconsistent state law;
  2. practice in front of federal agencies where lay representation is allowed is not "the practice of law";
  3. what constitutes "the practice of law" is not clearly defined in Washington State by statute; the ad hoc court rule that may change, in arrears, the definition of the practice of law, does not give constitutional notice of what is being regulated, so the ENTIRE regulatory scheme in the State of Washington is unconstitutional;
  4. the AG is challenging the federal disciplinary regulation for practitioners that is meant to fight "notario fraud" - which is what AG is claiming he is doing, too - and the lawsuit so far succeeded to stop this federal regulation, and thus lift the supposed protection against "notario fraud", which doesn't make any sense;
  5. how did the State AG end up supporting plaintiffs in a civil rights lawsuit challenging an attorney/practitioner disciplinary rule, when the same State AG is habitually representing DEFENDANT Bar of the State of Washington in challenges of attorney disciplinary rules by disciplined attorneys;
  6. the AG is challenging only ONE federal disciplinary rule for practitioners in front of immigration courts, while not arguing that the ENTIRE federal regulation of practitioners in immigration courts is the domain of the State of Washington, and such a selective challenge is illustrative in view of AG's connections with two Board Directors of NWIRP and AG's financing of NWIRP and mutual efforts to help each other in and out of court.
Yet, there is one thing in common
the presumption that a non-lawyer advice and HELP to consumers FOR COMPENSATION, no matter the quality, must be outlawed.

That is part of the General Rule 24, that is specifically, by its language, prohibited by the state statute, and that is prominent in the "reputable person" regulation in immigration courts:

And look at the "efforts" of Washington State AG, "partner" of NWIRP, in fighting "notario fraud":

Note that the State Attorney General sued the supposed "offenders" not in federal court, but in state court, for unauthorized practice of law - while there is no STATUTE defining what the practice of law is, and while violating a COURT RULE should not be able to create a "state cause of action" to sue in court for its violation.

Also note that the State Attorney General is claiming that unauthorized practitioners' clients are "victims" of "notario fraud", without regard to the quality of provided services.

And, please, note that the State Attorney General (political supporter of NWIRP's Director Teresa Mosqueda) and, "coincidentally", a sponsor of a state statute to fight "unauthorized practice" of "immigration law" (which must be enforceable by the federal agency and not the states), claims in his own press-release that what he is prosecuting is "peddl[ing] assistance completing immigration forms and navigating immigration processes that legally can only be provided by qualified attorneys and accredited representatives".

Of course, the Washington State AG does not explain two interesting things:

Bill Schwarz, NWRIP's "legal advocate", a non-attorney who is not an accredited representative (those who are, are listed by NWIRP as such) "works to provide direct legal services to individuals detained at the Northwest Detention Center".  The State AG does not seek to prosecute Bill Schwarz for unauthorized practice of law (UPL), or its employers for aiding and abetting UPL, on the opposite, the State AG empowers such behavior by providing NWIRP a $125,000 grant.

Jenna Golan-Strieb is another NWIRP's unaccredited "legal advocate" who has a degree in Spanish Language, Literature and Culture, Latin American Studies, and Global Development Studies - but not a law degree.  Ms. Golan-Strieb is "working to provide pro se legal orientation assistance to immigrants detained at the NWDC" - the same "services" which the State AG prosecutes against other people as "notario fraud".

Maria Cordero-Miranda, a yet another NWIRP's unaccredited "legal advocate" with a degree in Political Science and Spanish, and in Urban Studies (but not in law), and a native of Nicaragua, reportedly "enjoys helping others navigate the immigration system by providing the tools and information necessary to do so".  That is exactly what the State AG prosecutes as "notario fraud" - for "peddl[ing] assistance completing immigration forms and navigating immigration processes that legally can only be provided by qualified attorneys and accredited representatives".  Maria Cordero-Miranda who "enjoys" helping others "navigate" immigration processes is somehow not the focus of State AG's prosecution - as are other people.  Nor is NWIRP, Cordero-Miranda's employer the target of State AG's investigation and prosecution for aiding and abetting "notario fraud".  Instead, State AG pays NWIRP to report others doing the same as its non-attorney employees are doing, for prosecution.

State of Washington AG then says that "[i]mmigration services fraud places the legal status of unsuspecting immigrant consumers in jeopardy, risking their ability to live and work in the U.S. - and takes their hard-earned money in exchange for dubious services".

So, the Washington State AG is claiming that ANY representation by a person who is not a "qualified attorney" or an "accredited representative", including help in "completing immigration forms" and in "navigating immigration processes" constitutes a "dubious service" that must be prosecuted - to protect "consumers" no less.

Yet, NWIRP's "legal advocates" somehow do not fall into this definition, or rather, Washington State AG does not enforce legislation against his friends and paid informants.

And, there are also parents who are allowed to represent their children (note that the federal regulation does not say "minor children", simply "children").  Parents do not become competent legal representatives simply because they are parents, and children, as consumers of supposedly legal services, should not be regarded as second-rate consumers with less rights than other people.

Parents are also not "accredited representatives", so the AG's claims are just a little bit self-serving, especially considering that the statute that the AG has "sponsored" only fights advice by "notarios" in exchange for compensation - which looks very much like efforts to stamp out competition to AG's own law license, and to law licenses of his friends, and officers and staff members of pet non-profits.

But an even bigger "elephant-in-the-room" issue emerges here:

  • while fighting enforcement of federal immigration laws through a lawsuit against President Trump's executive order;
  • while fighting enforcement of federal immigration laws by fighting prohibition on discretionary disbursements of federal funds against "sanctuary cities" because they disobey federal immigration laws, and REFUSING to enforce federal immigration laws;
  •  the State of Washington suddenly claimed an interest in ENFORCING federal immigration law in fighting "notario fraud" - in an interesting way, while fighting in court, a disciplinary rule that was devised to PREVENT that same "notario fraud" in immigration proceedings?

So, the State of Washington now has a "state interest" in ENFORCING some portions of immigration laws - against the federal government - while fighting against that same federal government's efforts to COMPELL the State of Washington and its municipalities to abide by those same federal immigration laws?

Doesn't make any sense - other than, when you need to use your power to prevent the money trickle towards your friends' businesses from drying up - the end justifies the means.

And let those consumers who are left without any immigration services as a result take care of themselves.

They are only numbers in head counts for the Washington State AG and non-profits in their fundraising campaigns, after all.

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