"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, November 27, 2017

New York unconstitutionally strips inmate of unlicensed representation of their choice - by unconsitutionally prosecuting a "fake attorney" for unauthorized practice of law while not even having a definition of what the practice of law is

When I came to intern (clinical practice is a graduation requirements in Albany Law School) to Prisoners Legal Services of New York, I was put on intake of prisoners' letters.

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.
What we did handle was:

  • 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.

Having worked in an office of an attorney who handled the same case on all sides - Family Court (child abuse), the parallel criminal case, the parallel administrative "indicated report" proceedings, the parallel child support proceedings against parents, and other related legal matters for the same client - I saw the flaw of such an approach.

It does not really help an unlawfully confined petition to have only his medical issues addressed when what he needs is a criminal appeal, a habeas corpus petition and a civil rights action - to free him and get him proper compensation for a wrongful conviction.

But, PLS had policy and budget constraints, and nobody else represented such prisoners.

Their letters, many of them barely - if at all - literate, begged PLS, as a hope of last resort, to help them, because no other attorney is interested.

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:

and, if you find a person who - even though he does not have a law license - represents you where nobody else does - 

  • 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.
By the way - do you know what the State of New York, represented by the New York State Attorney General Eric Schneiderman, answered the American Bar Association in 2015, in answer to the question if New York has a definitions of the practice of law and unauthorized practice of law?

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:

  1. constitutionally protected - Johnson v Avery; and
  2. 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";
removed from the reach of consumers the person who was actually helping them, put him in jail, created a criminal record against him, and ordered him to return money for services he already provided.

After that, the state of New York proceeded "reviewing appeals" of the now-convicted "phony" attorney, while claiming, of course, that no cases that he appealed were approved for parole. 

First, I do not believe one word coming out of the mouth of New York prison authorities - who install security cameras in such ways that guards can beat inmates inside their cells or while putting them into their cells - and then claim that never happened, like the government did in Raszell Reeder's and multiple other cases. 

Second, if one judges whether a legal provider of appeals, and especially, administrative appeals (where the appeal goes to the same people who denied relief initially in the first place) is a good one or a bad one by his success rate, then all appellate attorneys are bad - because all appellate attorneys lose appeals, where, by policy of courts, majority of cases, and especially of criminal cases, are affirmed on appeal, and the same is true for administrative agencies who would not overturn their own decisions.

Moreover, an appeal - whether won or lost - constitutes an important procedural step, entitling the inmate to further legal relief, and the "fake attorney" was securing that step for his clients.

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.

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