"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.

Thursday, June 22, 2017

New survival tricks of law schools expose the sham of attorney regulation - a new suggestion, from a law school dean, to defy ABA authority to certify law schools: the end of attorney licensing is coming from money-hungry law schools?

I wrote today a blog about a new trick a law school professor from Charlotte Law School that faces yanking of its license in August unless it proves its financial stability to teach its remaining 100 students to graduation - to allow law schools to be owned, straight out owned, by law firms.

Graduation from ABA-approved law schools is, in all states of the U.S., a pre-requisite to obtaining a license to practice law.

Licensing the practice of law is declared to be in order to protect consumers, and all rules pertaining to licensing, including educational requirements of lawyers, should be governed by that declared goal.

In other words, mandated education of lawyers must be necessary to protect consumers.

Yet, a law professor openly claimed, apparently, that he deliberately DOES NOT teach about deficiencies of regulation of the legal profession, in order, allegedly, for law students not to use such deficiencies as loopholes, and not to act unethically.  Which says a lot about law ethics professors' trust in the integrity of the legal profession.  Imagine - you, as a member of the public, should not be taught, as a matter of public policy, about deficiencies in criminal law (which you are presumed to know anyway, same as law students are presumed to know attorney regulatory law anyway, under the principle that ignorance of the law is not a defense for breaking it), because if you know of such deficiencies, you will immediately go out and start committing crimes?

And, a law professor openly claimed, apparently, that regulation of the practice of law (by judges, which amounts, in the professor's view, to "self-regulation" - implying that judges are treating lawyers more favorably than another branch of the government would) is just a smoke screen to prevent the "real regulation" of lawyers by the government.

Now yet another law educator, an associate dean at Faulkner University's Thomas Goode Jones School of Law Allen Mendenhall, went so far as to claiming that the American Bar Association as an accrediting institution "stifles legal education" - his exact words.

Associate Dean Mendenhall explains that ABA is a non-profit organization (with foreign capital now, I might add) that has been founded, and evolved, as an equivalent of a professional guild.

It is improper to begin with to charge a professional corporation with foreign capital to regulate constitutional access to justice in a huge country to begin with - where professional interests of lawyers, providers of legal services and members of the ABA:

  1. the narrowest scope of service,
  2. with the least innovation and effort,
  3. at the highest price possible, and
  4. while restricting competition

are at stark conflict with interests of consumers to have:

  1. the most versatile services;
  2. with the best innovation available
  3. at the lowest price - which is achievable only by the
  4. widest possible competition among providers of legal services, so that consumers could choose for themselves.
That is even more so when, as Associate Dean Mendenhall now acknowledges, the ABA (whose accreditation to his law school he did not question until the accreditation started to hurt enrollment and finances of the school) has a history of quashing competition, and especially quashing competition from immigrants, indigents and minorities.

In other words, Associate Dean Mendenhall acknowledges, with references to reputable sources, that ABA started out as a professional anticompetitive racist organization.

The problem though is that Associate Dean mentions ABA's racism not in connection with failing to protect consumers (the declared reason for attorney regulation that mandatory ABA-accredited law education is part of), but as a claim to defy the ABA accreditation so that law schools could lower the bar in order to have minority students pass the bar easier.

That is, of course, a politically correct thing to say - even though such claims must be offensive and even insulting to well-performing minority students who, upon graduation, would be presumed to have been given lower standards in order to receive their diplomas.

For example, New York state already cancelled a literacy test to future teachers - claiming higher failure rates of that test by minorities.

Which, of course, defies the purpose of such tests - to ensure quality of education for service providers in order to protect consumers.

In the legal profession, claims of California law school deans blaming the rigor of the bar examination on higher failing rates by students, and the claim of Associate Dean Mendenhall that ABA certification of law schools and required minimum curriculum and number of credit hours predominantly hurts minority students.

That may well be, because minority law students may still be from less economically advantaged, or, to put it bluntly, from poorer parents, and, unlike children of rich-in-generations white attorneys and judges, they would have a harder time to stay in school for 3 years, and to pay off student loans in the future.

But, it is very obvious that the test score should not be lowered (as law school deans demand) or canceled altogether (as New York did by canceling the literacy test for future teachers) simply because more people started to fail it.

Because lowering the educational bar in a regulated occupation defies the declared purpose of licensing that occupation altogether - protection of consumers.

Unfortunately, Associate Dean Mendenhall, while pointing out the example of two prominent schools of journalism to defy what he calls a "similar authority", an accreditation council - and obviously urges law schools to now defy ABA approval of law schools - makes no attempt to even review how canceling ABA approval of law schools will affect quality of services for consumers.

Because, if regulation of education as the starting point of providing government protection of the level of legal services to customers, is not needed, regulation itself is not needed.

But, self-serving as it is, it is obvious that the legal profession (and the BUSINESS of legal education) is governed not by the profession's alleged honor, and not by the declared goal of regulation - protection of the consumer, but by down-to-earth financial considerations.

And, for survival of his job, law schools may just as well defy the ABA - and, undermine and end regulation of the legal profession as it exists.

Who would think the end of attorney licensing would be coming from money-hungry law schools...

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