"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.

Sunday, February 10, 2019

On the constitutionality of regulation of the "practice of law" in the United States

A lot of things depend in the United States on the legitimacy of regulation of the "practice of law".

1. only licensed attorneys are allowed to give legal advice, represent people in court, draw up title documents and contracts, and thus through regulation of the practice of law, people's access to court is controlled: you do not have money for an attorney, and you cannot skillfully represent yourself in court - your rights are lost forever;

2. only licensed attorneys are allowed to be prosecutors, interact with grand juries, and to be judges and finally resolve people's disputes, including life and death, the death penalties case.

As an expert in both criminal and constitutional law, I looked at the regulation of the practice of law by applying the current laws, and constitutional precedents of the U.S. Supreme Court on the issue of clarity of the law - in general, and in criminal cases, since regulation of the "practice of law" is regulated through criminal prosecutions of "unauthorized practice of law" (UPL), where the "practice of law" is the main element.

I posted my very short article on the subject, 3.5 pages, as an independent researcher, into - and as a result, I was propelled to the top 5% of researchers, out of millions of researchers there, and this particular article - into top 4%, by the traffic to that article, traffic by law students and law professors from around the world.

I have had law professors from

  • Vietnam,
  • Tanzania
  • The Phillippines
  • Papua and New Guinea
  • the U.K.
  • France,
  • Azerbaijan
  • Russia
  • the United States - many
  • India
  • Bangladesh
  • Ireland
etc. visit the page and read or download the article.

Here it is.

As you see, the reasoning is based exclusively on mandatory and binding decisions of the U.S. Supreme Court.

So, why are we still regulating the practice of law if such regulation, according to our own laws, is screamingly unconstitutional?

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