"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, December 4, 2018

The U.S. Supreme Court's decision in Fleck v Wetch, cowardly as it is, spells out the doom for judicial power over attorney regulation and over public access to court

It has been a long time coming, but it did come.

In June of 2018, the U.S. Supreme Court has decided a case Janus v Association of State, County and Municipal Employees, giving, on 1st Amendment grounds, to teachers (and all non-unionized members of other professions) freedom not to be forced to pay union fees to unions who use that money in their political activities that non-union members may not support.

Parallel to that, a case was pending in the U.S. Supreme Court from North Dakota where a lawyer challenged mandatory bar fees on the same grounds as teachers did in Janus.

The U.S. Supreme Court did not decide that case at the same time as Janus.

Instead, it first broke up for a 3-months' summer vacation, and then held 8 (!) conferences 

discussing the case and the numerous amicus briefs from all walks and ilks before arriving at a decision.

The decision was somewhat cowardly - without a full opinion - but what would one expect from a body deciding a case of, practically, its own power over attorneys, an explosive issue?

Instead of a decision with a full opinion, the U.S. Supreme Court simply granted the petition for certiorari, reversed the decision of the lower court, the U.S. Court of Appeals for the 8th Circuit, affirming the district court decision that denied attorney Arnold Fletch's challenge as to unconstitutionality of the mandatory bar fees under the 1st Amendment.

Note that the decision was relying not on the 1st Amendment directly, but on U.S. Supreme Court's interpretations of it through various cases - even though the U.S. Supreme Court does not have the power of the Supreme Law of the Land, as per the Supremacy Clause, Article VI Section 2 of the U.S. Constitution.

And, the decision made by the U.S. Supreme Court on this case - without an opinion, and an incomplete one, at that, just a remand to the 8th Circuit,

was not directly based on the 1st Amendment - but, again, on the court's precedent, which does not have the power of the Supreme Law of the Land, under the U.S. Constitution, Article 6 Section 2.

Why did the U.S. Supreme Court did what it did?

Why, if it took the pain of granting certiorari, it did not issue a full-fledged opinion on the case, but instead cast in down to the 8th Circuit.

Ah, but there is a not-so-subtle game played here.

While TROs by puny district courts - against Trump only - are suddenly deemed "the law of the land" applicable to all jurisdictions, not just jurisdictions of the U.S. District Courts where such decisions are spawned - courts do know about limitations of their authority within their territorial jurisdictions.

And, while granting certiorari, the U.S. Supreme Court (judges) did not want to release lawyers from slavery to finance mandatory bars where, according to one of the U.S. Supreme Court's previous decisions, it was perfectly ok to use the funds forced out of lawyers by the threat of disbarment (and starvation) for any "regulation-related activity" - such as, for lobbying the legislation to raise salaries of judges and provide law clerks/slaves (or more law clerks/slaves) to judges.  Self-interest of the judiciary in that particular financial blackmail is self-evident.

So, what the U.S. Supreme Court did is - it dumped the case back to the 8th Circuit which covered just 7 states out of 50,

and not the most valuable/lucrative ones at that for the bar - not California and not Florida (New York is not a mandatory bar jurisdiction).

Note that the last amicus that broke the camel's back was from the Pacific Legal Foundation, a decision to remand was made by the U.S. Supreme Court the same day the motion to file an amicus brief was granted to the Pacific Legal Foundation - which said, among other things, the following:

"The State Bar continues to pursue political ends, works to ensure that objectors get the smallest possible deduction after jumping through the greatest number of hoops to claim it, and engages in financial shenanigans that constantly draw the attention - and ire- of the state auditor.  Many attorneys have abundant reasons to resent subsidizing and associating with the government's mandatory bar association".

But, it is not just the "government's bar association".  It is actually a "court's corporation", a corporation of the judge's own profession incorporated by judges into the body of their own court, into the body of the government - no other profession in the United States was given that particular favor by the regulator.

We do not have corporations of taxi drivers incorporated into the government, into the Taxi Medallion Commissions or Mayor's offices, do we?

Association of regulated hair dressers, jockeys, landscape designers, fortune tellers incorporated into the Governors' offices, the tops of the government branches regulating them.

But, somehow, lawyers' corporations (to which regulating judges belong, regulating themselves, their own licenses to practice law) ended up incorporated right into the top of the judicial branch in every state having a mandatory bar.

How that happened is a long and sordid story not taught in law schools - and for a good reason.

As much as law schools try to do two diametrically opposite things - sharpen the minds of future young lawyers while at the same time attempting to dumb them down as to the true aspects of regulation of their own livelihood, if facts are presented bluntly to the young law students, regulation of attorneys - crumbling already, as the case Fletch v Wheck amply demonstrates - will not be sustainable for a much longer time.

There are too many inconsistencies in that particular regulation in the law, too many glaring conflicts with the U.S. Constitution that the thus-regulated profession is supposed to uphold and protect.

For that reason, it is better not to "stir the pot", not to call a spade and spade and to let the sleeping dogs lie.

With the only difference that the dogs are not longer sleeping and are contesting the status quo - both from within (attorneys) and from without (cast out attorneys and members of the public, consumers of attorney services), and are doing it more and more vigorously.

So, the U.S. Supreme Court - acknowledging the writing on the wall by actually accepting the petition for certiorari and reversing the decision of the 8th Circuit - still "was not ready" to "make the law", as it freely does for the entire country, as it did in Janus, or, back in 2015, in the area of same sex marriage.

No doubt, in response to its own largest lobbyists, the most powerful mandatory bars - California as one of them - the court delayed the disintegration of mandatory bars and the undermining of the power of the top courts in the respective states by directly jeopardizing only 7 of them, and the least significant ones.  The sacrificial lambs were only the top state courts of the states of:

Remember, Fletch is not Trump, and, in his case, the decision of even a federal appellate court will not have a country-wide application, as are the temporary decisions of lower district courts against Trump.

But, cowardly as the decision is, it is an admission, in and of itself, that what the way the "self-presumed-honorable" profession that also gave themselves a gift of immunity from corruption, as part of its presumed honor (judges) regulates its broader base and source, lawyers, is far from honorable and is based entirely on financial compulsion.

The supposedly neutral government regulator subverted regulators of members of a learned profession whose duty is to get access to court for the American public, including to challenge the government (including the regulator itself) if the government violates people's rights - is using its power not to do its job, but 

  • to secure financial resources from the regulated group for lobbying its own interests;
  • to keep the regulated group scared of the loss of their right to earn a living, in exchange of a monopoly to practice what the regulator cannot define ("the practice of law") - in order to
    • sing praises to the regulator; and
    • not dare to criticize the regulator - not dare to inform the voters, in fact, of the unfitness of the regulator to be elected or appointed to its super-powerful position.
Whatever the delay in time to resolve the matter of attorney monopoly in the United States and the judiciary as its greedy, dishonest, power-hungry and self-serving regulator, there is a saying that you cannot be somewhat pregnant.

You are pregnant or you are not.

Similarly, you cannot somewhat, but not fully admit that "mandatory bars" (corporations of attorneys incorporated into top courts) are violating the 1st Amendment by forcing its members to pay to the regulator for lobbying for the regulator's salary increases and to give the regulator help/slaves (law clerks):

"(2) The State Bar, through its Board of Governors or Executive Committee, has taken a formal
position with respect to a number of questions of legislative policy. These have included such subjects as an increase in the salaries of State Supreme Court justices; making attorneys notaries public; amending the Federal Career Compensation Act to apply to attorneys employed with the Armed Forces the same provisions for special pay and promotion available to members of other professions; improving pay scales of attorneys in state service; court reorganization; extending personal jurisdiction over nonresidents; allowing the recording of unwitnessed conveyances; use of deceased partners' names in firm names; revision of the law governing federal tax liens; law clerks for State Supreme Court justices; curtesy and dower; securities transfers by fiduciaries; jurisdiction of county courts over the administration of inter vivos trusts; special appropriations for research for the State Legislative Council."

The regulator, the judiciary, has been outed, finally, in an official decision, as cowardly, short as limited, as the two lines in the docket of Fleck v Wetch was.

Of course, this case dealt with money.

The U.S. Supreme Court is still afraid to take and honestly review and decide a case of attorneys disciplined for criticism of their regulators - and the U.S. Supreme Court's brothers and colleagues in regulation (the U.S. Supreme Court regulates its own "bar", and by the way, collects its own "bar dues" which God knows how it uses).

The U.S. Supreme Court is still afraid to take and honestly review and decide a case of a challenge of unconstitutionality of regulation of attorneys because WHAT exactly is regulated in regulation of attorneys, what is "the practice of law", the element of a crime "unauthorized practice of law", the subject of regulation and the basis of attorney monopoly in the United States - nobody, including judges, regulators of attorneys, could come up with a clear definition of, which makes the entire regulation an unconstitutional sham.

The U.S. Supreme Court is still afraid, 3 years after it decided North Carolina Board of Dental Examiners v Federal Trade Commission, to take a case of attorney regulation and acknowledge that attorneys are regulated in violation of federal civil and criminal anti-trust laws, as a cartel, overwhelmingly and entirely by "market players", without any "neutral state supervision", and even that "test" is an unlawful lawmaking in violation of Articles I and III of the U.S. Constitution, because there are no "state exceptions" in the text of the Federal Antitrust law, civil and criminal, and no "tests" are necessary to squarely apply that law to the facts of attorney regulation and pronounce the entire regulation scheme as a criminal enterprise, a country-wide, powerful, well-financed organized criminal sindicate calling its members - naturally - honorable, and calling upon its members - naturally - to defend one another in order to escape public scorn and removal from power.

But, Fleck v Wetch, nevertheless, is a significant breach in the armor of court regulation of attorneys, and in the claims of courts that they are honorable in all things, including that regulation, which is in fact a criminal enterprise, a financial and reputational blackmail of the entire profession, and holding the American public hostages by reducing their own choice of their own representatives in their own branch of the government, courts, to those only who would finance lobbying in favor of those courts and who would keep mum about improprieties going on within those courts.

And, that breach of armor - very likely, considering tendencies in the legal market, globalization and robotization of consulting and legal services - may way be the chink in the eggshell that will soon leave the whole nest-egg of judicial power over the attorney and public access to court where it should be, in shambles.

And, it will be long overdue.

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