And, as part of training, teaching me how to respond to various types of claims made by prisoners, I was told about policy and budgetary constraints of Prisoners Legal Services - a training which shaped my future law practice.
Because in my training I was told that, by policy or budgetary constraints, or both, PLS does not handle the following claims for prisoners:
- unlawful solitary confinement for less than a year and a half;
- criminal appeals;
- civil rights actions;
- parole hearings;
- violation of parole or probation hearings;
- appeals of denial of paroles;
- habeas corpus relief.
- administrative appeals for denial of medical or mental health help, and
- unlawful solitary confinement for more than a year and a half;
- abuse of prisoners by guards - through letters or Article 78 petitions (which happened extremely rarely, to the point of having that as a special event in the office when such a case was to be filed), but not through civil rights actions.
And I wrote rejection letters - as I was ordered to do.
When I was leaving, attorneys in PLS expressed a wish that, when I get admitted to practice law, I would undertake some of representation of the cases that they cannot take - because of the sea of unmet need.
But, PLS lawyers told me, if you do not do that - you will not be unique, because nobody does.
When nobody does, and when the only organization in the State of New York - by policy, or budgetary constraints, or both - refuses to take certain types of cases, like post-conviction relief, including parole appeals, what kicks in is the constitutional prohibition to regulate the practice of law in this area.
Existing since 1969.
The case was Johnson v Avery, out of Tennessee, where the U.S. Supreme Court held the following:
"Held: 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."
The case was right on point as to lack of reasonable alternatives to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, even though the case dealt with other inmates "practicing law without a license", and not unlicensed members of the public outside of the prison system.
But, the rationale of the ruling still applies:
the state may not regulate the practice of law in the area of post-conviction relief when such regulation leads to stripping people of any possibility of getting help with that type of relief.
Did New York adhere to that?
Of course, not.
As a dog in a manger, New York State Attorney General hopped on a case where, by ruling of the U.S. Supreme Court, state could not regulate the "practice of law" (an activity which, by the way, The State of New York did not care to even clearly define before starting to regulate it, and regulating it for more than a century, undefined).
The big brave NYS Attorney General Eric Schneiderman, "protector" of human rights (see my blog from a couple of years ago listing all court cases where he acted as - no, not as a protector - as an opponent against victims of civil rights on behalf of perpetrators of civil rights violations ), the kind of "protector" who strongly opposes recovery of damages for victims of wrongful convictions, jumped right into the fray.
To protect the public, of course.
Because - for your information - "protecting the public", a la Eric Schneiderman, is stripping poor and illiterate inmates of an ability to receive any help with their post-conviction relief.
The very conduct that the U.S. Supreme Court prohibited 48 years ago as being against the U.S. Constitution, the U.S. Constitution that Schneiderman pledged to oppose.
The New York State Attorney General boldly claimed the supposed "fake attorney" Antonia Barrone, a/k/a Mario Vrendenburg (fake only because s/he does not have a license, not because of quality of services s/he provided to the public), defrauded the public - you know by what?
By practicing without a license, by the so-called "unauthorized practice of law.
So, now we have unauthorized practice of law as a type of fraud.
In other words, in criminal proceedings against a PROVIDER of legal services harm to the CONSUMERS of such services is presumed in New York.
Well, the same is happening in other states across the United States.
But, when CONSUMERS sue - in New York - for their RIGHT to choose an unlicensed provider, because they only trust a provider unregulated by the government when the government is an opponent in litigation, the consumer is denied that right of choice - and ordered into a mental health evaluation for even asking. The case about it was filed in federal court in 2014, Townsend v New York, 1:14-cv-06079, (EDNY 2014), and decided against he consumer.
Moreover, in three states - California, Michigan and Texas - when a consumer was represented in a criminal proceeding by an unlicensed provider of legal services, courts refused to reverse the conviction, refusing to agree with the consumer that harm to consumer from representation by an unlicensed provider should be presumed.
So, states, without having a clear definition as to what the heck they are regulating as "practice of law",
PRESUME HARM - to consumer - from "unauthorized practice of law", when prosecuting the PROVIDER;
REFUSE TO PRESUME HARM - to the same consumer - from the same "unauthorized practice of law" - when suing the consumer, and when the consumer is represented by an unlicensed provider.
And, in New York, after announcing a victory for consumers, protecting them from the "presumed fraud" of unauthorized practice of law, you know what the "winner" of the case and "protector" of the public Eric Schneiderman started to do?
You will never guess.
On behalf of PRISON AUTHORITIES - that is, opponent's of the "fake attorney's" clients in litigation - attorney Schneiderman now started to review of all appeals handled by the "fake attorney".
Meaning - if the "fake attorney" WON such appeals, Schneiderman, on behalf of prison authorities, will contest the decision because representation was not by a licensed attorney.
So, who the state protects in prosecuting for UPL a provider of services to inmates for post-conviction relief, where licensed attorneys are not interested in such a representation, and where such representation is allowed for 48 years by the U.S. Supreme Court?
In one other recent case, decided in February of 2017, a New York prison inmate, Raszell Reeder, sued New York prison authorities for guard brutality and deliberate failure to record that brutality and provide copy of records to him. A judge from Franklin County Supreme Court, S. Peter Feldstein, dismissed the case from a pro se litigant before "protector of human rights" Eric Schneiderman - representing prison authorities in that case, naturally - even had a chance to answer that lawsuit.
Because, in Judge Feldstein's opinion, the case was so badly drafted that it was an injustice to subject attorney Schneiderman to necessity to read it. So Judge Feldstein obliged - and dismissed the complaint. And told the likely illiterate complainant that, since it is the 16th of his complaint, he was supposed to know the law better by that time.
So, see, LEGAL KNOWLEDGE in New York is presumed since February of this years, courtesy of Judge Feldstein - even in an illiterate person - simply because he had a lot of practice of filing.
The "fake attorney" had an even more practice in law, he was accused of not doing enough in 23 cases out of 400 that he handled, and even those accusations could come as "buyers' remorse" - because some consumers cannot resist an offer of a freebie, and obviously, the New York AG made such an offer - you "expose" a "fake attorney" - we return, through restitution in criminal proceedings, what you paid, even if you received great value in services for your money.
So, here is the deal.
If you are a poor inmate, here is what the government does to you:
- It can subject you to all kinds of violations of your rights, including beating up (like in the case of Raszell Reeder); or sexual assaults (including forcing you to dance naked on the table to jeering of correction officers and inmates), or religious discrimination;
- it creates tricks like having the guards beat you up off the reach of security cameras - and then putting you in solitary confinement as if you beat the guards instead, I've read many, many such cases during my internship and then volunteering for Prisoners Legal Services of New York;
- it blocks you, through attorney regulation, from choosing a representative in court or before administrative authorities who are not a licensed attorney - like the "fake attorney" Schneiderman proudly "caught" and had convicted in New York, and as it was done in the Townsend case - where Schneiderman was also representing the OPPONENTS of the consumer, not the consumer;
- it makes, through regulation requiring super-expensive education, attorney representation so expensive that attorneys are not interested in representing the inmate;
- it ignores constitutional prohibition on regulation of nonlawyer representation for poor inmates - established through Johnson v Avery 48 years ago;
- it establishes through federal law, Prisoner Reform Litigation Act, 28 USC 1915, the right of the government to dismiss lawsuits if inmates did not "exhaust administrative remedies" before suing;
- it allowed states to invent super-short statutes of limitation for such exhaustion - under 15 days in general and from 2 to 5 days in 9 states to file the first grievance - and, while filing it, to choose between your right for access to court and your personal safety (see footnote 14 in Justice Stevens' dissenting opinion);
- it disregards inmate's rights to the point of executing inmates despite evidence of their potential innocence that the courts do not want o explore - claiming that inmates "failed to raise" that question earlier, even when inmates were illiterate or lacked legal education;
- the government either blocks that person from representing you - as the government did in the case of Cory Townsend, before that representation began, or
- convicts him of a crime of HELP to you - while immediately utilizing the conviction to help ITSELF in undoing the results of your provider's successful appeals, like Schneiderman is doing now.
No - and no.
But, if New York does not have a definition for the MAIN ELEMENT OF THE CRIME of unauthorized practice of law, it may not enforce that crime - because:
not only such a definition is constitutionally required to exist at the time of conduct that the government seeks to prosecute, so criminal charges are JURISDICTIONALLY DEFECTIVE where the main element of the charge is - admittedly by the government - not defined,
such charges certainly cannot be proven at all, and especially beyond the reasonable doubt, as it is required in criminal cases.
So, New York, under pretenses of "helping the public", and unlawfully fabricating a criminal proceeding in the situation where the conduct was:
- constitutionally protected - Johnson v Avery; and
- where New York did not have a right to prosecute because it admitted that there is no definition of the main element of the crime of "unauthorized practice of law";
When will the public finally see the fraud against itself - all right - BY THE GOVERNMENT - in instituting and maintaining regulation and criminal prosecution of providers of services of consumers' choice, especially when such providers oppose that same government in litigation and provide good-quality services?
Your opponent in litigation knows better than you who YOU must choose a provider to fight that government - or else you can proceed pro se?
Like Raszell Reeder.
And have your case dismissed.
And have yourself branded as a "vexatious frivolous litigant".
And have ALL access to court blocked for you, as federal courts do under 28 USC 1915 for inmates complaining of guard brutality, sexual assault, lack of medical care and other human rights violations.
After all, when the government hurts you by stripping you of your right of choice of legal representation - and through the licensing restriction when you cannot afford a licensed attorney - of your right to be represented at all - the government actually helps you.
Schneierman said that, he is a known fighter for human rights - you saw above links about him OPPOSING civil rights lawsuits on behalf of civil rights perpetrators.
One might start believing in such "help".
After a lobotomy, of course.
But not before.