"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.

Friday, February 2, 2018

Why is it that attorneys in the U.S. are regulated by the judiciary? What impact does this model of regulation has on consumers? On attorneys? My first English-language law review article seeks to provide some answers

For both consumers and attorneys this answer to this question is a given - the American judiciary regulates American attorneys because they just do.  

I took that question a little further and explored how the judiciary across the United States bases its power over both attorneys (by regulating their law licenses), and with them, their reputation and livelihood, and, through attorneys, how the judiciary regulates access to court by every person in America.

The claimed goal of such regulation is universally "protection of consumers", in this respect, regulation of attorneys is no different than regulation of any other of over 1000 regulated professions in the United States.

Yet, since the regulator is the judiciary, and the regulation usually (with the exception of the State of New York) happens at the level of the top court of the state, peculiarities of such occupational regulation affects both the rights of the regulated attorneys and the rights of consumers for the choice of their providers of legal services.

In December of 2017 and January of 2017 I've published several law review articles in the Russian language - because in Russia a very interesting thing is emerging right now - attempts to saddle consumers with attorney monopoly of the American type, even though not quite.  In Russia they did not come yet to even consider to have attorneys be regulated and controlled directly by the government, and especially by the judiciary.

Yet, in the U.S. the presently living attorneys and consumers of legal services have missed the moment when the regulation of the legal profession has started the way it exists today (more than a 100 years ago, by the way), and in Russia the process - together with vigorous public discussion of the issue - is going on just now.

And, since in Russia there is no attorney monopoly at this time, providers of legal services are versatile and there are several competing fractions within the legal profession itself, all united into their own associations, and attorneys are not regulated by the government, the proposal to introduce an American-type attorney monopoly, give one group of lawyers control over others and make it impossible to work unless you are vetted through attorney quasi-licensing, is causing an uproar in the Russian legal community.

Recently, one of the group of Russian lawyers, the Association of court representatives, have filed a complaint with antitrust authorities, the Federal Antimonopoly Service (the Russian sister of the American Federal Trade Commission) - against attorneys trying to sneak their monopoly upon other lawyers and upon consumers.

The public debate that is ongoing in Russia regarding introduction of attorney monopoly - in the Russian legal community and in the government at many levels, including the Ministry of Justice, the Russian "Public Chamber", the Russian Legislature (Duma) - is, quite unfortunately, unparalleled in the U.S. history, where absolute attorney monopoly was grabbed by both the judiciary and the legal community and saddled upon consumers by stealth, without much, if any, public debate, and lobbied through by state senators who are themselves attorneys and members of the benefited profession.

How strong is the feeling of entitlement in the American legal community that it is them, and not he consumers who are the beneficiaries of the regulation that pretends that the beneficiaries are the consumers, I demonstrated in my previous blog article - attorneys who love that slavery viciously attack their colleagues who dare to claim that they actually have a constitutional right of free speech left after obtaining a law license.

In contrast, in the American legal community, American lawyers are stifled into silence as to whether regulation of lawyers through monopoly is healthy - for lawyers and for consumers.

The debate about attorney monopoly in Russia is invigorating for both American lawyers and especially for American consumers.  It shows that regulation of consumers' access to court the way it exists in the U.S., through strict regulation of the legal profession, including the de facto prohibition on criticism of the regulator, the judiciary, is not set in stone, that there are alternative models, and alternative ways of dealing with regulation that is already in place.

To invigorate public debate of propriety of the current form of regulation of attorneys and the impact of such regulation upon access to court by all Americans, I offer to the American reader my first English-language law review article: about the claimed bases of power of the American judiciary over the legal profession, with a vast bibliography showing how that power is used, whether in regulating its own profession (judges are licensed attorneys themselves) judges comply with existing constitutional precedents that they created for everybody else - and, most importantly, what are effects of the regulation upon consumers.

There is interesting case law that I uncovered during my research, from across the United States, and interesting aspects of regulation that was unexpected even for me as a researcher.  And, every point I make there is substantiated by evidence "from the horse's mouth" - admissions of the regulator of the legal profession, the judiciary, through court rules, court precedents and through direct statements of judges in the press.

Here is the link to the article, at this time I decided to make the article in public access.  It is only a portion of the research I am doing and continuing to do, which I plan in the future, circumstances permitting, to publish as a book.

Readers - welcome.

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