"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.

Monday, February 10, 2020

A partial transcript of a documentary showing why allowing lawyers to regulate lawyers is bad

In 2014, 6 years ago, a movie documentary was published on YouTube about history and reality of regulation of attorneys in California - which pretty much reflects the picture of similar regulation across the United States.

As part of my research over the last several years, I am exploring the history and mechanism of work of attorney monopoly in the United States and efforts of the ABA to transplant/graft it upon post-Soviet and 3rd World countries, and the impact and workings of attorney monopoly in those countries.

The most interesting case study amongst those transplants is Russia where a limited attorney monopoly after an American model was transplanted in 2002, and an absolute attorney monopoly is planned to be introduced in 2021.

For a scholar of the history of attorney monopoly in the U.S. the history of American-brought attorney monopoly in Russia is a Godsend.

I was too late to be born to witness the time when attorney monopoly in the U.S. was taking its death grip upon the public access to justice (which currently resulted in a dire crisis, the "justice gap" when the majority of Americans, as judges and scholars alike acknowledge, cannot afford access to professional help regarding their legal problems).

Moreover, over the century when American attorney monopoly was weaving itself into the fabric of public life and workings by the government, it has developed myths about itself serving to brainwash population at all levels as to its true nature, purposes and whether it does or does not fulfil its declared purpose - helping the public in protecting it from, supposedly, incompetent or dishonest attorneys.

Also, American attorneys have a multitude of disciplinary gag rules, viciously enforced, prohibiting them to speak out about conceptual and constitutional problems in regulation of their own profession, and especially when it concerns problems with integrity of the profession's regulator, the judicial branch of the government.

Taboos of this type are only starting to take a grip upon the legal community in Russia (transplanted from the US), and at this time there is still a possibility to see a lot of information showing corruption and conflicts of interest within the regulatory system of attorneys in Russia - which statistics is simply not kept, or is held strictly under wraps in the U.S.

There is no point looking at what "legal scholars" say about attorney monopoly in the U.S. - mostly, because there is no such thing as academic freedom of thought and of research in legal academia in the United States, as shown, on the issue of attorney monopoly, in my discussion of the issue with American law professor Carl T. Bogus on Twitter where he repeated the 3 tired myths that are being embedded into Russian lawyers, too, judging by the heated discussions in Russian-language legal forums and media:

1/ attorney licensing is not a monopoly (denying the nature of attorneys' grip on public access to justice and judges' grip on attorneys in the same);

2/ comparing doctors and lawyers - which, a professor if law must know, is comparing apples and oranges, and

3/ referring (falsely) to the supposed traditions, to the Founding Father Alexander Hamilton supposedly having passed the NY State bar sometime back in 1700s, 200+ years before attorney monopoly was imported into the US - from Russia, as a matter of sad irony.

Don't try looking for this information in American official "legal scholarship", this is a taboo subject.

Lack of independence of thought in American legal scholars is not surprising since the only way a legal scholar can make a good living is in a university (called "law school") in the U.S. which depends for its financial vitality upon the certification from a non-profit corporation from the State of Illinois, with foreign membership and financial support, the American Bar Association (the ABA).

It is obvious that a scholar may not produce independent research if the scholar's ability to earn a living depends heavily and exclusively upon the object of his/her research - and it does so depend, since, as job posts on (as an example) show, U.S. law schools refuses to hire as legal scholars those of legal scholars - no matter how good their scholarship is - who have stepped on the toes of the attorney monopoly and were cast out of it ("suspended" or "disbarred").

Yet, there appear, here and there, some bits and pieces of information that show - to me, as a comparative legal scholar of attorney monopoly in the U.S. .and in Russia - that corruption schemes in Russian and American attorney regulatory systems are birds of a feather.

One of such pieces is the 2-part documentary posted on YouTube in 2014, The Scandal in the State Bar.

As much of information the documentary provides, it was still extremely skittish as to not to step on the toes of some people and did not highlight a lot of points that could be highlighted based on the facts it was introducing.  I will try and remedy those omissions in my comments, and in my research I call a spade a spade.

I will publish my comparative commentary - in the shape of articles on my English-language and Russian-language blogs, as well as law review articles on, but, first I would like to create and publish the transcript of the documentary.

Here, I am publishing a partial transcript from Part I of the 2-Part documentary.

When you are told that attorney monopoly (licensing of attorneys by attorneys and prosecuting by attorneys of non-attorneys who have dared to help people who cannot afford attorneys with people's legal problems) is somehow good for the people, recall this, and recall that every dollar that the State Bar exacts from individual attorneys for their lavish "junkening" is laid as a burden upon the end consumer in the way of attorney fees - with a markup.


" Meanwhile, in October of 1995 Governor Pete Wilson has signed into law Senate Bill 60.  The bill required the State Bar to conduct a new plebiscite of its members to find out that they would still want to keep the unified bar.

State Senator Quentin Kopp was the author of the bill.  He explains why he introduced it.

Hon. Quentin L. Kopp, former State Senator & Judge, Ret.:

“It wasn’t so much any failure of performance of the State Bar respecting the admission procedures, and that procedure is, essentially, the state bar examination.

There was some disgruntlement respecting discipline.

There was disgruntlement based upon the length of time of any proceeding to finish, and, secondly, the laxity or weakness of discipline imposed for conduct.

That wasn’t so much a glaring cause of… at least, my discontent, because it’s similar to people who claim that a judge hasn’t properly adjudicated the sentence for a convicted felon, or even a misdemeanor sometimes, or a district attorney isn’t pursuing a particular case with affinity, energy and enthusiasm.

It was, more genuinely, the expansion of the State Bar into non-core activity.”

Joining Senator Kopp in his battle to abolish the Bar was Peter Keane, who is today a Professor at the Golden Gate University School of Law.

Professor Keane explains why he came to oppose the unified bar.

“In the early 1980s I’ve started to get involved in the local bar association, the Bar association of San Francisco.

I became a member of the Board of Directors of the Bar Association of San Francisco, and then I became… I got elected President of the Bar Association of San Francisco in 1988.

A… and during that time… I had an interchange with lots of people regarding the State Bar of California, and I was involved with a number of activities having to do with the State Bar of California.

And it became very apparent to me that the State Bar of California was, at best, a very dysfunctional organization.

It was an organization that really didn’t fit the role that it was designed to play.

Essentially, the State Bar of California was designed to play 2 roles.

It was to be the professional association of lawyers, essentially, the lawyers’ union, which means looking out for lawyers’ economic activity, welfare activity, doing all great things for lawyers.

At the same time, it was supposed to police the conduct of lawyers in order to make sure that lawyers acted ethically and didn’t do anything to harm the public.

So, there is a built-in tension in that role in terms of the fox guarding the chickenhouse.

So, in the early 90s I ran for the Board of Governors of the State Bar of California.

And I ran for the Board of Governors of the State Bar of California on a very simple platform, and that was to abolish it.

And, I made that very openly my platform, and I got elected as… as a Governor, member for the State Bar of California from San Francisco, one of 2 Governors.

And, when I was on the Board of Governors, during the 3 years I was on the Board of Governors, in my 3rd year I was Vice-President of the State Bar of California, I saw an organization, really, which was, indeed, dysfunctional, and was an enormous bureaucracy, very expensive, which had the staff in its own kind of crystal palace, very high salaries, doing what they wanted to do.

At the same time you had this group called “the Board of Governors” that, supposedly, had oversight over the State Bar of California – which was a fiction.

All of us were in for 3 years, and most of the Governors spent their first 2 years politicking with the other Governors, so that they get elected President in the 3rd year.

So, it was all sort of this … “don’t rock the boat” thing, “let’s everybody be nice” and see me as the nicest guy in the world, so that you elect me President in my 3rd year, and I’m become… have an extra year as President.

I didn’t do any of those things, I knew I wouldn’t get along to be President, so I didn’t have to be involved in that.

·        Board of Governors/Trustees State Bar Presidential Election 2011: “Ok, so, if everybody would, please, take your pile of paper and… write the name of your vote, the last name, the first name of your… selection”….

The people who owned and ran the State Bar really were the executives on the staff who were giving the marching orders to the people who were the worker bees in the State Bar.

There were some very good people working in regular staff positions on the State Bar, to, pretty much, keep the Governors happy, but keep the Governors away from seeing anything … or doing… or getting involved in it, that might have any meaning.

So in our meetings we get this agenda:

(An incomplete document is shown - T.N.):

Board of Governors Meeting


The State Bar of California

180 Howard Street Board Room, 4th Floor

San Francisco, CA 94105

Friday, January 07, 2011

1:00 p.m.

Open Session

1 Guest Section

Patti White – CIC Implementation (special set 1:00 pm)

10 minutes

September 26, 2010 Minutes (regular meeting)

November 19, 2010 Minutes (regular meeting)

December 16, 2010 Minutes (special meeting)

30 President’s Report

40 Staff Reports

               41 Executive Director

               42 Secretary

50 Consent Agenda

               50-1 Financial Resolution

100 Reports of Board Committee

               110 Board Committee of Operations

111        Conflict of interest Code for Designated Employees 2011 re year 2010, Return for Public comment

               120 Regulation, Admissions and Discipline Oversight Committee

                              121        Rules of Professional Conduct Proposed New and Amended, Reconsideration of

                                             Proposed Rule 7.5(c) re Restriction on the Name of a Public Officer in a Law Firm


                              122        Adjustment to Cost Assessment Formula – Business and Professions Code

                                             Section 6086.10

               130 Member Oversight Committee



The agenda would be made up by the staff, and it would have all of this crap on it that was just made core that the Governors would be put upon a Committee, and he was supposed to be doing this, and doing this…

But, it was meaningless stuff.  It was just like running around in circles, to meet and debate various things, and the stuff we were meeting about, the stuff we were debating about was trivial.

And, it had nothing to do with the real needs of lawyers, responsibilities of lawyers to the public, the things that should be done in order to improve the legal profession, and also the things that should be done to help lawyers.

So, I saw tremendous outlays of money on parts… on behalf of various things like retreats for the Board of Governors, sinecures at very expensive places like NAPA… country clubs.

(A sign is shown: "Welcome to this world famous wine growing region NAPA VALLEY")

One of the things that amaze me, a little of story that kind of amaze me and kind of sets the tone for the kind of waste of money that was… that I saw at the State Bar of California during my time from the beginning was that the staff… one of its big functions was … sorta… keep the Board of Governors happy, give them whatever they wanted, so they wouldn’t look what the staff was doing.

Whatever they wanted.

You want a party? – You have a party.

You want booze? – We have booze.

You know, you wanna do this, you wanna travel, eh, we will have it all.

And, when I was on the State Bar, after … when the first meetings was gonna come up… they would meet alternately, monthly, one month in Los Angeles and one month in San Francisco.

And the first meeting that was coming up was a San Francisco meeting, and I live in San Francisco, half a mile from where the State Bar had its headquarters then.

And, I got a call saying… from this clerk of the State Bar saying: “Ah… we go… we need to know – would you like us to make your hotel reservations at the Clift Hotel?”  A fancy hotel in San Francisco, for Thursday night, and Friday night, and Saturday night.

And I said – “why would I want that?”

“Well, because you are on the Board of Governors”.

I say – “I live in San Francisco, you know, I… I… I travel by bus, so I am gonna get on the # 5 Fulton bus, put in a quarter, and I am at the State Bar building within 15 minutes from my house.

Why, the Clift Hotel is even farther away on the other side, why would I want to stay there? 

“Well, the reason you want to stay there is because everybody is junkening there, for 3 days, 3 nights - nights of partying, wonderful time, great rooms, great food, whatever you want.  And, you bring your wife – and it is a terrific company”.

I said “No, I don’t need that, I live here, I’ll get there on my own, I don’t need that”.

And that sort of set the tone for me of this waste of members’ money that was done by the staff – not just in regard to, sort of, keeping the Governors happy, but also in regard to huge salaries that many of the staff members (31:00) had, particularly the executive staff members.

Very big salaries.

We had one guy who was in charge of the discipline section of the State Bar, he was supposed to … he was the one who was in charge of all of the investigation and discipline.

And, his office … wh… when the State Bar moved to Los Angeles, his office was in Los Angeles, everything that he was doing was in Los Angeles, but he didn’t want to move to Los Angeles.

So, what the State Bar did is – he stayed here in San Francisco, and every morning they paid for his flight, and then in the evening – back.

And this guy earned more frequent flier miles than, probably, anybody in the country.

So, that was, those were a couple of… sort of… emblematic incidents about the State Bar that showed me that it… it was extremely dysfunctional."

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