"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.

Tuesday, January 30, 2018

On "lawyers looking like assholes" - New York attorney Joseph Anthony Patrice and his pranks on Above the Law

There is a lawyer licensed to practice in the State of New York.

His name is #JosephAnthonyPatrice.

Joseph Anthony Patrice, or #JoePatrice, as he signs his writings on the blog Above the Law where he is a staff writer since 2012, is a former litigation attorney, and is still a licensed attorney in New York. 

Joe Patrice was litigating in very large and powerful law firms, so, consumers would expect a lot of expertise and competence from such a lawyer - especially that he advertises his employment with Cleary, Gottlieb, Steen & Hamilton, and with Lankler Siffert & Wohl, as his accomplishments as a law blogger.

And, the main declared reason for attorney regulation in the United States at all and in New York State in particular is to ensure - for consumers - competence of licensed attorneys.

So, by giving Joe Patrice a law license and stating to the public that he has "no record of public discipline", the State of New York assures the public that attorney Joe Patrice possesses a minimum level of competence safe for the public.

Now let's look at what attorney Joe Patrice says in his blawg article that he writes as a staff writer, for pay.

I actually wrote about Joe Patrice's pranks on this blawgs before, and both times I noted lack of attention to detail and lack of competence on key issues of law he was discussing.

In May of 2017 I wrote about two of such pranks:

But, Joe Patrice outdid himself in his recent blawg under the rubric of "Legal Ethics".

Let's see who is the asshole in the situation described.

On January 21, 2018 an attorney from the State of Idaho James Harris published an opinion in "Idaho Statesman" under the name:  "First, they came for the lawyers: Beware the Idaho Bar’s proposed limits on free speech".
Read more here:

Here is what attorney James Harris said in the first three paragraphs of the article:

The essence of the statement is that attorney Harris asserts that the new "ethical" rule of the Idaho State Bar punishing attorneys for "harassment-by-speech" violates the 1st Amendment.

And attorney Harris is correct on that.  Punishing for speech-as-harassment does violate the 1st Amendment.

Now, here is the "argument" offered by James Harris' colleague from New York, attorney Joseph Anthony Patrice - who opposes James Harris' opinion and promotes, let's not forget, rules of civility supposedly supported by the Idaho State Bar rules.

First, the headline.

Attorney Patrice
  1. mocks attorney Harris' constitutional arguments portraying them as insane and putting words in the mouth of attorney Harris, portraying attorney Harris' constitutional 1st Amendment argument as an accusation against the Idaho State Bar of fascism;
  2. calls him 'this guy' and claims that attorney Harris is "sliding down his own slippery slope",
  3. in a sentence devoid of any grammar constraints, claims that "lawyers shouldn't make lawyers look like assholes is not a step removed from quartering troops" - which is true as to lawyers not making lawyers look like assholes, but there Joe Patrice missed his own point.

First of all, attorney Patrice fails to provide a link to the piece of attorney Harris that he so aggressively mocks - which is an elementary way to ensure a journalist's courtesy to his readers and his own credibility.   

Apparently, it is easier to fight a shadow, without giving the reader access to the full piece being criticized, in order to be able to judge for themselves, which is not an ethical method in the first place.

Then comes this magnificent piece:

"Suck it up buttercup" (without a comma) is, apparently, the new ethical mode of address invented for lawyers admitted to practice in the State of New York.

What is even more interesting is the purpose of attorney regulation in New York that is so adamantly asserted by licensed attorney Joe Patrice.

While attorney regulation was introduced across the country, including in New York for the declared purpose of PROTECTING CONSUMERS from INCOMPETENT and DISHONEST attorneys, and not to protect the market of attorneys from their competitors,

attorney Joseph Anthony Patrice, New York attorney registration No. 4091955, with no record of public discipline, a staff writer on legal ethics for a prominent blawg Above the Law proudly and publicly promotes as ethical what a smart individual would have hidden with shame:

that the legal profession claims to be ITSELF a "beneficiary of the privilege" of the regulation (its own monopoly).

That's called "bait-and-shift", luring people into something by claiming it is beneficial for them, but then switching the arrangement to the one beneficial to the fraudster, by holding some kind of leverage over the people.  Bait-and-switch is a well-known fraud trick.

But wait - if 
  1. the practice of law is a privilege;
  2. lawyers are beneficiaries of that privilege;
  3. and the privilege is so big that a lawyer is supposed to pay for it with forfeiture/implied waiver of a fundamental constitutional right of free speech,
then introduction of the same regulation as if it was for the benefit of the consumer was fraud, right?

And should be repealed because it was introduced under false pretenses, right?

Especially because what constitutes the object of regulation, the "practice of law", is not clearly defined anywhere in the Untied States, ABA's attempt to define it ended up in 2002 with a threat from the Federal Trade Commission and the ABA withdrew that definition.

By the way, according to the ABA's own survey conducted in 2015, none of jurisdictions in the U.S. have a clear STATUTORY definition of what the hell the subject of attorney monopoly and regulation, practice of law, is.

There is no such clear STATUTORY definition in attorney Joe Patrice's licensing jurisdiction - New York.

And, there is no such clear STATUTORY definition in attorney James Harris' licensing jurisdiction - Idaho. 

In Idaho, what constitutes the practice of law, according to the State of Idaho's own report to the ABA in a survey, is defined by "case law" (by courts on a case by case basis), and by a "rule" of Idaho Supreme Court (without any input by consumers/voters to the legislature).

That is exactly what the U.S. Supreme Court has prohibited as unconstitutional back in 1972, fearing arbitrary enforcement by courts in the absence of clear STATUTORY definition AND infringement on people's constitutional rights.

In the licensing jurisdiction of Joe Patrice, the State of New York, it is no better.

In the same survey, the State of New York, reported regarding the definition of the object of attorney regulation, the practice of law:

So, according to the most credible evidence, admissions, self-reporting by both Idaho (the source jurisdiction that New York attorney Joe Patrice is protecting and Idaho attorney James Harris is criticizing) and New York (attorney Joe Patrice's own licensing jurisdiction), attorney regulation schemes in both of these jurisdictions are unconstitutional, according to existing U.S. Supreme Court case law.

So much for "sucking it up, buttercup".

It is obvious that New York and Idaho (and all other jurisdictions in the U.S.) are adamantly violating constitutional law set by the top court of the country - while both the regulator of that unconstitutional scheme and the profession regulated by that unconstitutional scheme are sworn to protect the U.S. Constitution.  Hypocrisy in the extreme.

Such a bait-and-switch arrangement is, of course, impossible for a consumer , voter and taxpayer to "suck up" - especially because this unconstitutional scheme has already caused in the United States such an access-to-justice crisis that the majority of Americans cannot afford a lawyer, and have as a result to represent themselves pro se or forgo legal remedies at all.

But, that is not what attorney Joe Patrice stresses, or even mentions about attorney regulation - that it is not just constitutional protections of free speech that are violated by attorney regulation, but that the entire regulatory scheme is unconstitutional because of lack of clear definition and obvious self-interest of the members/regulators of the profession - because if he does publicly state the truth about attorney regulation, he will no longer be either the staff writer in Above the Law or a licensed attorney anywhere in the United States.

What attorney Joe Patrice stresses is, once again, this:

That the attorneys, and not consumers, are the beneficiaries of regulation.

And that attorneys have an interest, through regulation, to maintain their image by:

  • dictating the rules by which the STATE GOVERNMENT issues OCCUPATIONAL LICENSES as if those are the rules FOR THEM to set and not for consumers or for the legislatures/the government - so the regulated profession dictates the rules of its own regulation TO the government, not the other way around, go figure;
  • and that those rules should protect attorney's "privilege" as a "beneficiary" of the regulation, and, in order to protect that "privilege", it is permissible to violate constitutional rights of attorneys (including Joe Patrice's own constitutional rights) by introducing the rule prohibiting "harassment-by-speech" (which in itself violates BOTH the 1st Amendment AND the requirement for STATUTORY clarity of any law).

A person who celebrates forfeiture of his own constitutional rights in return for a privilege to earn a living and who, moreover, viciously attacks those who insist on those constitutional rights is a slave, and a slave of the worst kind - an enthusiastic slave.  

And the unconstitutional, medieval, guild-like claim of "privilege" (a monopoly to quash competitors) in exchange for forfeiture of rights is, I remind my readers, made by a two-headed "honorable" profession, where the regulator of the profession (judges, also members of the profession) are also entrusted by the public to finally resolve all public disputes. 

So who is going to resolve disputes AGAINST THEMSELVES as regulators of THEIR OWN profession?

And who is going to violate in such cases where their own power as regulators of the legal profession is challenged the main rule of an impartial adjudication - DO NOT SIT AS A JUDGE IN YOUR OWN CASE?

You guess - and that is the reason why this unconstitutional scheme has been saddling the American consumers, voters and taxpayers for over a century.

Yet, the enthusiastic slave of his own privilege Joe Patrice, while sitting on his high and privileged horse and mouthing out vulgarities towards his colleague for making a constitutional argument, in his zeal to uphold his slavery arrangement somehow overlooked to follow the main rule of any occupational licensing, and of attorney licensing in his own jurisdiction - maintain your competence.

That is the declared reason why regulation of attorneys even exists - to ensure for consumers that licensed attorneys are presumed-competent and knowledgeable.

There is a problem with Joe Patrice in that respect - because 4 years before his "suck it up, buttercup" outburst that a prohibition of speech as harassment is perfectly good and dandy and colleagues challenging the rule on constitutional grounds are crazy assholes, the top court of his own licensing jurisdiction, the New York State Court of Appeals struck a criminal statute punishing for harassment-by-speech - because it violated the 1st Amendment.

Now, who is the asshole?

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