"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, June 1, 2018

The attorney monopoly and the fight for the ultimate penny of the poor

The American Bar Association got concerned about the interesting issue - whether it is "ethical" for a lawyer to ghost-write for a client who is going to court pro se.

A year ago, a federal court has answered "yes" to a lawsuit of lawyers against the Trump administration as to whether they can ghost-write for clients in immigration courts.  I wrote about that lawsuit in detail, here, here, here, here and here.

I also wrote that federal courts are not that forgiving to lawyers who ghostwrite for appearances of pro se clients in their own courts - only in administrative immigration courts.

An article just published by the ABA confirms that the need for ghost-writing for pro se clients who cannot afford the full representation in the case did not go away - and that the ABA approves of the practice, in order to "help" pro se litigants get at least some legal advice and to "even out the playing ground" at least somewhat, if pro se litigants cannot afford the full representation by a representative of their own choice, with or without the ABA approval.

The "innovative" project that caused the ABA's approval (even though federal courts frown on the practice of ghost-writing by attorneys for pro se litigants) is the law firm of a Florida attorney Thomas Ice, The Ice Legal, which, for a fixed rate of $100 a month, ghost-writes pleadings for pro se litigants facing court proceedings, such as foreclosures.

What The Ice Legal does is, basically, is providing retainer/subscription/insurance services for clients for $100 a month - not a full ride, not a full representation, but at least some writing written according to the quagmire of court rules and precedents otherwise incomprehensible for an ordinary American pro se litigant.

That's what the Northwest Immigrant Rights Project has been asserting - the right for itself to ghostwrite while the same Project helps the state Attorney General to quash their competition, people who help their clients providing for them not a ghost-writing, behind the scene, bits-and-pieces representation, but a full representation, without an ABA-approved license (which representation in federal administrative immigration courts does not require).

That is what The Ice Legal is using - the justice gap CREATED by the absolute attorney monopoly and then USED by the absolute attorney monopoly in order to, under the guise of helping with access to justice, milk the "unrich" consumers who lose their homes to foreclosures for their very last penny, without providing a full representation in court.

This is happening in the blessed state of Florida where the highest state court currently fights tooth and claw against yet another legal innovation firm, the so-called TIKD firm, opposing its antitrust lawsuit where sanctions against TIKD is demanded.

You know why?

Because #TIKD helps in yet another area of law where the poor grossly suffer because of attorney monopoly and lack of funds to hire an ABA-approved (licensed) attorney.

What TIKD does is a no-no of "attorney ethics".

It guarantees its result in "no points on your license" - or your money back.

Such a guarantee is prohibited by "attorney ethics" rules - invented by attorneys-judges for attorneys in order to quash innovations just like TIKD.

And, TIKD hires attorneys and has them represent clients on a retainer - instead of an hourly rate directly from the clients, which makes such services cheaper for the client.

And, of course, that is a no-no for competing attorneys who try to run TIKD out of business and bury it in sanctions, as the record of TIKD federal lawsuit indicates.

Because, for TIKD's competitors (attorneys), the big bad issue with TIKD is that the owners of the company who arranged such a break for consumers are not attorneys.  

That was not an issue with the U.S. Department of Justice, though, that voiced their support for TIKD in court.

Yet, to protect their own monopoly of the market, TIKD's attorney-competitors engaged, according to TIKD's lawsuit, in a campaign of intimidation of attorneys who work for TIKD, which included collusion with the Florida Supreme Court and its "arm", the Florida State Bar, in order to make the intimidation effective - drop your work for TIKD or lose your license and livelihood.  So much for the care about consumers.

The interesting part though is that greed often blinds people to anything but their immediate need to protect their turf, their money, their income, their monopoly rent.

This is what happened in TIKD.

I should thank the greed of TIKD opponents for the gift to me as a researcher and to all the American public - highlighting a case that is never taught in law schools (for understandable reasons, it is very, very, very unsavory and shows the ABA in the true light - which the ABA does not want the young law students to see).

In their sanction pleadings against TIKD, the TIKD opponents quoted the case Turner v ABA, where several consumers sued the American Bar Association and courts for antitrust activities in collusion, and for their own rights to choose whoever they want to represent them in court, without ABA's or courts' approval.

Since the attorney monopoly is still here, as well as the justice gap that it had created, you know where Turner v ABA ended - the lawsuit was dismissed.  

The full analysis of how and why it was dismissed, and what place did this and other of the various "antimonopoly insurrection" lawsuits play in the development of both the absolute attorney monopoly and the justice gap in the U.S., will be available in the book that I am currently preparing for publication.

Yet, the essence of the lawsuit was that an indigent (poor) consumers asked several courts in several states (24 lawsuits all in all) to allow them to hire an unlicensed court representative to represent them in criminal proceedings in federal court - because the unlicensed representatives knew how to defend them in tax evasion proceedings and assigned licensed attorneys had no clue, and admitted to that.

The big problem for the ABA was that several courts actually granted that request, and thus the ABA's (and the court's) power as regulators of the legal profession, of access to justice by all Americans, could dwindle, and the "right" to monopoly rent, the right to charge excessive hourly rates would also disappear if consumers would turn to unlicensed individuals with lower rates.

24 lawsuits were rounded up and quashed - and the reasoning was as in a conversation through a brick wall where the court would not hear the pleadings of the litigants.

Where the litigants insisted on their right, as legally competent individuals, to choose their own representative in court, the judge - appointed by one of the defendants in the case (!) - asserted the judge's own interest not to allow "everybody from the street" to work in the courtroom.

Of course, power interests of judges - including the presiding judge - won.

Of course, the attorney monopoly stayed for another 43 (as of now) years and the ABA does not show any signs of relenting about its rule in causing the justice gap and loss of legal rights of poor litigants for over a century.

And, of course, the justice gap became wider and wider as a result, so that now attorneys start to exploit their own creation - the justice gap - in "innovative ways", by ghostwriting - The Ice Legal (Florida) and the Northwest Immigration Project (Washington), and my trying to quash TIKD - for being owned by non-lawyers, even though the actual services are still provided by lawyers.

The fight for the ultimate penny of the poor and for control over access to justice by the poor continues.

Yet, the position of the ABA that is now approving ghost-writing shows that the legal profession, with its monopoly, priced itself out of sight of the majority of Americans, runs out of clients who can pay for a full representation, and that an increasing number of lawyers can only survive by "innovatively" picking up bread-crumbs from clients instead of a full representation.  

Give me at least some business.

At least to ghost-write.

Just one pleading.


May pricing-itself-out of the full representation be yet another sign on the wall for attorney monopoly?

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