"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.

Wednesday, August 30, 2017

AVVO attorney referral programs and the ire of bar associations - choosing a lawyer based on actual client reviews and pro bono consultations vs presumption of fitness through licensing

New York - and several other states - continue to stifle public access to legal information and affordable legal services.

After New York successfully dragged itself, and its consumers of legal services, back into the caves for some more time by prohibiting a virtual office to out-of-state attorneys while allowing the same to in-state attorneys, it continued its protectionist policies by issuing an "ethics" opinion "cautioning" New York-licensed attorneys from participation in the referral services of AVVO - an online marketing device where people exchange opinions about lawyers, seek free legal advice from attorney-volunteers, and are referred to attorneys who are willing to take their cases.

The reason why New York state considers a referral that it would be "unethical" for an attorney to use a referral by AVVO?

The rule against "profit-sharing" between attorneys and non-attorneys - which in itself makes no sense, but referral services are not legal services.

AVVO's representatives correctly pointed out that there are anti-trust and 1st Amendment implications that the New York State bar associations fails to consider, hiding behind its reluctance to make policies - which it is making anyway.

Of course, NYSBA is not a disciplinary authority in New York State, but I bet that this opinion would be considered in a disciplinary proceeding against an attorney.

I have just one question about all of these under-carpet noises:  why wouldn't the government allow ITS OWN SOVEREIGN, consumers for whose benefits attorney licensing is established are not allowed to decide how to pick their own court representatives and which marketing source to use for that purpose?

After all, the U.S. Supreme Court has ruled more than 2 years ago already, in North Carolina Board of Dental Examiners v FTC, that regulation of any market by market participants without neutral state supervision may be a violation of antitrust provisions of federal law?  

And, a federal court has ruled that regulation of a market by a competitor is a violation of due process as to other competitors?

Might there be a concern that then the big fat pie of occupational licensing, created under the guise of "helping" consumers, will fall apart?

Not to mention that there is a presumption of knowledge of the law in this country, so it is counterintuitive (stupid) to pretend that a person is presumed to know the law in order to be put in jail, but should be presumed to not know the law in order to be "protected" from having an opportunity to choose an independent court representative he trusts for the same criminal proceeding that presumes his knowledge of the law to be put in jail.

Attorney licensing, as any other occupational licensing, is revealed more and more as an outmoded and unlawful method of protecting a group of entrenched individuals from competition - to the detriment of consumers.

And, in treatment of AVVO as an "unethical" source of referrals, the otherwise supposedly progressive New York is, by the way, behind other states that allowed such referrals, allowing their consumers to use services of lawyers who are approved by online consumer ratings and participation in pro bono consultations online.

Wasn't licensing introduced, after all, to HELP consumers in their own marketing and choice of attorneys?  Only through a PRESUMPTION of fitness through licensing - which is far from perfect.

Isn't it better to rely on statements of ACTUAL FITNESS from former clients, and upon actual performance of attorneys through their pro bono consultations online?

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