"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

NWIRP lawsuit highlights: how occupatinal licensing prohibits those with full stomachs from feeding the hungry and the literate from helping the illiterate

I am continuing to comment on the lawsuit of the so-called "airport lawyers" proclaimed by some media sources as heroes fighting the Trump administration - while their lawsuit has so far blocked a federal regulation that was established to fight fraud in immigration proceedings.

So far, I've published 4 blogs, commenting on:
This article, Part V, is about the actual interest of immigrants in "services" in immigration proceedings and how those interests are thwarted by self-interested groups - including the State of Washington officials, and their pet non-profits, of course, under the guise of helping them.

There are plenty of articles on the web - not related to services by attorneys or by lay representatives in administrative proceedings - showing that occupational regulations often are used as an excuse for completely inhumane practices, such as:

It is the same, if not worse, than destroying the food in front of the hungry - to prohibit the literate to help the illiterate (including immigrants) to fill out a form, or to prohibit explaining to the illiterate what is the dictionary meaning of a certain word in that law.

Washington State AG who supported the lawsuit of immigration lawyers in the U.S. District Court for the Western District of Washington through an amicus brief, claimed that somehow, by regulating federal practitioners in federal immigration courts through federal regulation, the federal authorities interfere with the State of Washington's regulation of the practice of law.

Yet, the same regulation has produced a huge "justice gap" where, according to State of Washington's recent official report a very large number of State of Washington residents cannot afford an attorney - but are prohibited by the State to use an unlicensed representative of their own choice.

Moreover, there are more conceptual glitches in Washington State AG's enforcement efforts about "notario fraud" that the "mainstream" media, including mainstream "legal" media would not cover.

Presumption of knowledge of the law

The concept of presumption of knowledge of the law is, of course, an ancient legal fiction.  Nobody can actually know all laws, even attorneys, even attorneys specializing in that same law.  There are reference books for that, so that a person can consult those laws.

Yet, the concept of the "presumption of knowledge of the law" is indispensable for law enforcement, because otherwise people would always raise as a defense that they did not know that the law they are charged with violating existed.

Nevertheless, if the government uses presumption of knowledge of the law BY ALL for law enforcement purposes, the government should be estopped from pretending that people who are not licensed to "practice law" are suddenly presumed not to know that same law - and that refers to both providers of "legal" services and to consumers choosing such providers.

First, if knowledge of all laws by all people is presumed, there can be no such thing as "notario fraud", or as "unauthorized practice of law", and regulation of legal services is completely non-sensical - because such regulation seeks to protect consumers of legal services on the presumption that they DO NOT know the law.

The government may not at the same time assert two diametrically opposite concepts - that the same providers, or the same consumers, are PRESUMED to know the law, and are presumed NOT to know the law.

But, being consistent with the concept of presumption of knowledge of the law requires deregulation of the legal profession - a lucrative market controlled by a "chosen few" who regulate themselves and sieve out those they do not like. 

Law schools are expensive, lawyers, naturally, put the cost of their education and licensing into their fees - and, as a result, people cannot afford an attorney, but are prohibited by the government to hire anybody who is not licensed.

Due Process Notice of the law

At the same time as people are presumed to know the law, Due Process Clause of the 14th Amendment of the U.S. Constitution requires notice of the law - of statutory law.

Knowledge of a court rule, or a court opinion/precedent, does not normally constitute knowledge of the "law".

But, in any event, people can only get constitutional notice of the law and form knowledge of the law if the law is understandable to a person of reasonable intelligence and education, let's say, a person with a high school diploma.

If laws are constitutional (give constitutionally acceptable notice), they do not need extra knowledge to navigate or explain to others - making attorney regulation unnecessary from that point, too.

Moreover, in the State of Washington, "practice of law" is defined (with certain exceptions) as this:

"Giving advice" can be simply reciting the law that is:

  1. enacted on behalf of the other person as a part of popular sovereign (we the People); and
  2. that the person receiving "advice" is PRESUMED to know.
Yet, nowhere in the Rule 24 does it prohibit to:

  • help out others in filling out forms, or
  • help out others in "navigating" administrative proceedings - without representation, which can be simply giving information, not advice, and without any representation.

And he is doing it at the same time as his paid informant against competition NWIRP is claiming to the court that if the court does not allow NWIRP to play fast and loose with their clients' right to representation in order to be able to stretch its budget across a larger number of people, even if at the sake of quality of representation of and outcomes for specific individuals, they will be left without ANY representation.

So, NWIRP first stamps out, for money, its own competitors who may be providing services for a low price in the field where there is an acute shortage of providers, and then claims that it cannot serve all potential clients, and thus disciplinary rules have to be relaxed for NWIRP's sake, so that it can stretch its budget for as many people as possible.

NWIRP also informs the court that immigrants suffer not only from lack of representation - where such lack of representation may be the direct result of BOTH federal AND state enforcement of practitioner/attorney regulation that CREATES the justice gap in immigration proceedings.  Immigrants suffer apparently from lack of translators, too.

Neither representatives, nor translators are provided to immigrants in such proceedings for free, and paid services are unaffordable to the majority of immigrants.

Yet, the voices of CONSUMERS - immigrants, especially those who are detained in the detention centers, are not heard.

Instead, non-profits such as NWIRP pretend that they fight for the interests of such immigrants - while NWIRP so far obtained a court ruling allowing them to NOT represent immigrants for whom they prepared pleadings, contrary to existing federal regulations.

Yet, had the actual consumers been asked - and they are not suing in NWIRP lawsuit, somehow, NWIRP did not come around to include any of its clients or potential clients as a plaintiff in their lawsuit, while claiming nevertheless that NWIRP's interests are the same as interests of NWIRP's potential clients' - they would likely give the following list of what they need in such proceedings:

  1. representation by a representative of THEIR CHOICE - approved or not approved by the government;  it is actually counter-productive and conflict-ridden to have to choose your own person of trust, your own representative AGAINST the federal government in immigration proceedings, from a list of people approved BY that same government;
  2. forms that are understandable for a person of reasonable intelligence, and which are easy to fill out;
  3. forms in their own language - it does not cost much to translate those forms into the languages that at least the majority of immigrants speak, and have them available in a pdf-fillable format;
  4. provide to immigrants subject to immigration proceedings, whether they are detained by the government or not, Internet access to pdf-fillable forms in their own language;
  5. introduce e-filing for all applicants, and make it easy, using pdf-fillable forms;
  6. have automatic translation service of forms filed in languages other than English, for the court - the quality of computer translation is enough to adequately translate what people put as answers to form questions.  Form questions do not need translation, as they must be the same in all languages;
  7. translation services MUST be available for free in immigration proceedings - otherwise it is a basic human rights violation to adjudicate a case when there is no two-way understanding between the court and the respondent as to what the respondent is saying and what the court is saying, respectively.
None of those needs were litigated by NWIRP, and you know why?

Asserting those needs on behalf of their clients will spell out the end of their own lucrative life, their own fundraising, rubbing shoulders with those in power, lavishing self-praise and awards upon themselves.

If representation in court and in administrative proceedings is allowed for anybody just on the basis of trust, a power of attorney, how many attorneys with a pulse, a license and an empty head will no longer have business?

As to "notario fraud", fraud of any kind is prosecutable in court, there is such a cause of action - and that applies to all providers, whether attorneys or not.  If a provider took the consumer's money, but did not provide services - a lawsuit can be filed, and that protection is enough.

There is no need for further regulation - and especially when it creates, and widens the justice gap.

What the State of Washington AG is describing, with glee, as prosecution of "notario fraud", is a neighbor dropping in to another neighbor to translate for him and help fill out a form him, explaining the dictionary meaning of words used - a help from a LITERATE person (no more knowledge than a simple literacy must be required to read and understand the law) to an ILLITERATE person.

What the State of Washington, and other state governments (and the federal government) are doing in "regulating" attorneys and, in administrative proceedings, practitioners, is:

  • depriving consumers of their own choice of representatives;
  • reducing consumers' choice in proceedings litigated by the government to providers approved by that same government - an irreconcilable conflict of interest for the government; and
  • making such services unaffordable, thus creating and widening the justice gap.

Prohibiting the literate from helping the illiterate where that help can make a real difference, simply because that literate person is not approved by the government, is as cruel as the government destroying food in front of the hungry and prohibiting people to feed the hungry.

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