Occupational regulation - the offer of help that takes away your right to choose

Occupational regulation is based on the concept that consumers need to be helped by the state in their choices of providers of valuable services.

When you are offered help, usually a competent adult has a choice - to accept or decline help.

And, if somebody is offering you help for any reason, including the situations where the helper is the State (while you are the sovereign [as in "We the People" and the State is YOUR servant), your rights should not be DIMINISHED by this OFFER OF HELP, right?

It's logical, isn't it?

Now, let's see what happens with occupational licensing.

You have a right to choose a provider of services in a certain field.

The right of competent adults to enter freely into contracts is also constitutional right, U.S. Constitution, Article I, Section 10, Clause 1.

Now, in the field of occupational regulation, the state offers you HELP in choosing a provider, and at the same time, makes acceptance of that help mandatory for you.

Once a certain profession becomes "regulated" by the state - and usually that happens through requests of industry insiders wanting to protect high prices and fight competition in their field, thus HURTING you as a consumer - the state hypocritically offers you "help" in choosing from a list of "state-approved" providers, while at the same time takes away your right to decline that help, say "no, thank you" and go on your merry way choosing whoever you want to choose to provide a service you want, the way you want it, for your money.

So - if anybody else offers you help, you can say "no, thank you" and do what you want, within the boundaries of the law.

If the state wants to offer you "protection" as a consumer, wants to help you choose a provider of services for you better, the state, by virtue of such an offer of help, feels entitled to cut off your choice to say "no".

I do not believe the state has such a right, and I do not believe, for that reason, the general scheme of occupational regulation in this country is legitimate.

The legal doctrine that the government uses to jam its help in choosing providers of services down your throat, without a right to say "no, thank you, I will choose myself" is called "parens partriae".

"Conceptually, the doctrine is derived from the king’s royal prerogative as “the general guardian of all infants, idiots and lunatics",  Hawaii v. Standard Oil Co, 405 U.S. 251, 257 (1972) 

(quoting 3 W. BLACKSTONE, COMMENTARIES *47) (note the offensive language by which the "guardian state" referred to individuals with mental illnesses or diminished cognitive abilities).

Ok.  So, the "parens partiae" doctrine was applicable only to cases where the state had to protect interests of people with dimished capacity.

Which brings me to the question of legitimacy of occupational regulation.

WHY would the state have to protect the interests of COMPETENT ADULT CONSUMERS?

Of course, there will be claims that governmental approval of educational and "character" level of providers makes it easier for consumers to choose an appropriate professional and amens it easier for the consumer to avoid charlatans. 

Unfortunately, real life shows that it is not so.

Government approval does not guarantee quality, and there are a lot of good professionals blocked by the lack of government approval, or rather, approval by the private interest groups, industry insiders, who run licensing and disciplinary boards without any regard to or even participation from the consumers.

In fact, bars to entry into the profession are put in by industry insiders and not by consumers, and those who dare to practice the profession without approval through licensing are most often challenged by the industry insiders, their competitors, and not the consumers who use and like more affordable and diverse services then those from the overpriced licensed and privileged insiders of the regulated industry.

Since licensing of most licensed occupations is handled by anticompetitive cartels, supermajorities of private insiders of the regulated industry without meaningful - or any - participation by consumers, such private antitrust cartel activities may not by any stretch of imagination be called taking care of consumers.

Moreover, it should be offensive to the consumers who are competent adults, to be treated by the state as people of diminished capacity unable to choose for themselves providers of important services.

Consumers should have a right to choose provider of any service, as well as be the judge of that provider's qualification and training.

If it suits the consumer, who is a competent adult, the inquiry must stop there.

Protectionist policies (or, rather alleged protectionist policies for consumers - because in reality they protect only powerful industry insiders) should be applicable only to persons of diminished capacity, who has no guardian who can make a choice of provider of important services.

The State should stop pretending that it treats all adult citizens, voters and taxpayers, as incompetents, for purposes of restriction of THEIR choice of providers of various services, under the guise of help.

Occupational regulation as it exists today, hurts the economy and restricts consumer choices.

As with any other offers of help, when help in choosing a provider of services is offered by the government (public servant), the consumer should be able to have a right to say :  "no, thank you, I will choose on my own, whoever I want".

And such an option must be worked into the occupational regulation schemes, otherwise such "help" is nothing more than blatant market protection for powerful industry insiders, in violation of federal antitrust laws.

Contempt of court and contemptible behavior of judges

There is a reason for the existence of the battered woman syndrome.

There are reasons why women are afraid to confront their abusers and stay with them for years.

It it private, women are afraid, they are embarrassed.

Even when they complain, they often recant, it is all part of the battered woman's syndrome.

Judges dealing with domestic violence cases must be trained to understand such issues.

Well, a Florida judge, Jerri Collins, was obviously not trained on these important issues - and did not have her own heart and judgment to inform her decisions.

Not only she put a reported victim of domestic violence, a young mother, in jail for not showing up to testify in court as a witness, but she rejected her pleas that she had anxiety and was afraid to confront her abuser in court by reportedly saying:

"You think you're going to have anxiety now? You haven't even seen anxiety" - and sent her to jail.

That is because the mother asked the prosecution not to continue with the case and did not come to court because she was afraid to confront her abuser.

Here is what the young mother said to the judge that the judge ignored:

The prosecution, apparently, did not listen and not only proceeded to trial, but subpoenaed the victim who already told them she wants to have the charges withdrawn.

The question must be raised whether the prosecution was correct to pressure with the charges which the witness wanted withdrawn, and continued to spend public money on the trial that the complaining witness did not want to continue.

For the judge, apparently, the young mother had no right to withdraw her complaint about the father of her child, not even out of fear.

Nothing like victimizing the victim even further.

Nothing like punishing a woman for having a mental health problem, anxiety.

Nothing like taking the mother from a young child because she was too afraid to confront a person who she said choked her and threatened her with a knife.

Now, the concept of "contempt of court" presupposes respect to courts as institutions dispensing justice.

Yet, such contemptible acts of injustice as what Judge Jerri Collins did to the young mother, breed exactly what Judge Jerri Collins purported to punish - contempt of court.  Because what Judge Jerri Collins did is, once again, contemptible.

I wonder whether any discipline is coming Judge Collins' way.

I think, people like Judge Collins have no place on the bench.

Because due to Judge Collins, the abused young mother, and other young women like her, were taught a lesson not to come forward and not to ask help from authorities.

And, if they do not ask for help, however imperfectly, they may die, their children may die, and other women and children may die at the hands of their abusers.

What judge Collins did in discouraging victims of domestic violence to come forward, for fear that they will not be able to carry through with the testimony against their abuser and will be put in jail and a criminal record will be created AGAINST THEM, is not only inhumane and downright contemptible behavior for a public servant, but it is also dangerous.

Judge Collins has no place on the bench.

And, the most idiotic thing that I've ever seen is when a TV station "legal analyst" stated that it makes no sense for the young woman to appeal her sentence of criminal contempt, because she already served it.

Of course, it makes sense.

Because if the sentence is overturned on appeal, the woman will not have a criminal record, her fine will be returned, her feeling of self-worth will be returned, her trust in the fairness of the justice system and that it will protect her instead of victimize her more, will be at least somewhat restored.

Not to mention that she will have a lot more grounds for a disciplinary complaint against the judge.

More on sanctions for "frivolous" conduct for constitutional arguments

The U.S. Supreme Court prohibited viewpoint-based discrimination pursuant to the 1st Amendment of the U.S. Constitution.

Federal courts do not care and continue to sanction civil rights plaintiffs and their attorneys for the essence of their viewpoints on issues of constitutional law as a policy of docket containment and protection of the government.

I wrote in many memorandums of law and appellate briefs in federal court - which all fell on deaf ears - that a constitutional argument is not a majoritarian argument, constitutional law is not the law of majority, and thus rules of frivolous conduct requiring comparison of an argument as to whether or not it is "reasonable", or, in other words, "mainstream" at the time, chills development of constitutional law, and with it, social progress.

Recently I came across a statement attributed to a  famous law professor Anthony D.Amato:

“The Moment of Truth for a practicing lawyer occurs whenever a prospective client tells a story that seems morally compelling but legally hopeless.  That is where the attorney's legal research should begin, not where it should end.  Too much injustice persists in the world because tired legal thinking has accepted unjust patterns as legally inevitable.” That means, under the current rules of frivolous conduct and the pattern of their application to constitutional arguments and the "evolving rules of decency" argument, that whenever an attorney meets such a "Moment of Truth" challenge, while "the attorney's legal research should begin, not end" at that point, what happens is the attorney runs from such a case like chased by hounds - because  the attorney is afraid of being sanctioned if he raises, based on research and his/her own legal opinion an issue in court that is "morally compelling but legally hopeless". Many concepts that we accept today as mainstream, were once "morally compelling, but legally hopeless". Women were property of men, without their own right to decide their own destiny or the destiny of their children, own property, engage in professional activity or business, or vote. That all changed. Slavery was abolished.  It was at some point mainstream, and runaway slaves were brutally prosecuted and psychiatrists "diagnosed" their "mental illnesses" for running away from their masters. Racial discrimination in public places, which was once a raging rule enforced by the government by police force, exists now only in remnants that civil rights movement is continuing to fight, and is declared unconstitutional. Gay marriage is now legal across the United States, while only over 13 years ago homosexual intercourse was a crime. Death penalty for juveniles was abolished only 13 years ago. Abortion and contraception was transformed into legal from being criminal on the lifetime of one generation. Right to marry. Right to marry a person of another race. All of those things were not "mainstream" at some time. At some time, all of the above things fit into the definition of "morally compelling, but legally hopeless cases". Existence and vicious application of rules of frivolous conduct against "non-mainstream" arguments chill a lot of potential civil rights lawsuits and slow social progress. If the U.S. Congress enacted the Civil Rights Act, 42 U.S.C. 1983, and an add-on, a fee-shifting provision, 42 U.S.C. 1988, to help civil rights PLAINTIFFS get attorneys by the statutory promise of payment by opponents if the case is won, that shows that civil rights actions were encouraged by Congress as something beneficial for the people. Yet, the same Civil Rights Act AND the fee-shifting provision, were put by federal courts on its head, now being the main source of STIFLING , not encouraging civil rights litigation. It is for you the people to assert that relentless and vicious sanctioning of civil rights plaintiffs and their attorneys for the contents of their viewpoints expressed in novel constitutional cases that are "morally compelling, but legally hopeless" hurts this country's social progress, and hurts citizens of this country by blocking their access to courts, preventing them from getting remedies for government misconduct. It is for the people to put an end to it, through media campaigns and addressing the issue repeatedly and assertively to the legal representatives people vote into office.

The untapped source of court representatives in the U.S. - jailhouse lawyers

The loss of the Harvard loss debated team to the debate team of prisoners made headline across the leading mainstream media sources, such as, among others:

• The Wall Street Journal;
• USA Today;
• The Guardian (which caustically mentioned that Harvard Law School student debate team lost to prisoners months after winning a national title among law schools);
• US News;
• Washington Post

Washington Post raised a very valid point - that such a win by prisoners over Ivy League law students is not surprising, because:

• prisoners had years of experience on the college kids;
• they had to overcome hardships in preparation - prison security prohibitions on learning materials such as Internet-based databases and law research;
• prisoners, according to one of the participants prisoners in the debate, worked towards a goal to show their worth to society;
• Harvard students were taken by surprise by the prisoners preparedness and "unanticipated position", in other words, there is an implication that Harvard law students, very possibly, were too uppity to properly prepare for a debate with such a lowly opponent as convicted prisoners, and it always is a bad strategy to underestimate the strength of your opponent

What mainstream media does not cover though is that not only participants of the "Bard" program are capable attorneys-without-a-JD-degree.

Many prisoners are, by necessity.

Once a person lands up in prison, the state no longer has to provide any representation, if assigned representation in criminal defense that landed prisoners in prison can even be called representation.

In prison, prisoners are faced with discrimination, denial of medical care, guard brutality - and efforts by the government not to notice what is going on behind prison walls and to quash all dissents by restricting civil rights.

Let's look at the names of statutes restricting rights of prisoners to obtain relief from often unlawful convictions obtained through police coercion and outright brutality, perjury by police witnesses and prosecution and assigned criminal defense in name only.

The Prisoner Reform Litigation Act, see also here

Even though the Civil Rights Act of 1983 does not require exhaustion of state administrative remedies to gain a right to sue, for prisoners, people who are mostly poor and having no access to legal services - it does, and it does it in a brutal and completely inhumane way.

The statute of limitations under the PRLA for a prisoner to preserve his or her right to sue in federal courts for UNCONSTITUTIONAL prison conditions is 15 DAYS - compare it to 3 YEARS for everybody else.

If a prisoner who was brutally beaten up by guards does not file a grievance with the same guards who beat him up, practically asking to beat him up more, then he loses his right to raise unconstitutionality of such conduct ever again.

According to Marbury v Madison, the pivotal U.S. Supreme Court case by which the U.S. Supreme Court gave itself permission to interpret the U.S. Constitution, any law that is unconstitutional is VOID - not voidable, but VOID, meaning there should be no waivers, no exhaustion requirements and no statutes of limitation, not 15 days, not 3 years.

Yet, PRLA exists, and is repeatedly used to cut off prisoners' constitutional rights.

The next "winner" of a statute is the Anti-terrrorism and Effective Death Penalty Act of 1996.

AEDPA cuts off rights of death row prisoners for multiple appeals, which many critics believe, increases possibilities for innocent people to be killed by the government.

The next adverse treatment/discrimination prisoners meet in federal courts is restrictions on appeals and determinations of presumed frivolity I wrote about earlier in one of my blogs here.

The discriminatory reach of the 3-strikes bar to civil rights actions by prisoners starts at detention of a presumed-innocent accused, not with conviction.

28 U.S.C. 1915(g) provides:  





"In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.


 Furthermore, under 28 U.S.C. 1915(h):


" (h) As used in this section, the term “prisoner” means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.

Given the fact that courts regularly dismiss even represented civil rights actions as part of their policies and based on court-invented bars to jurisdiction, it is a matter of time when a prisoner is adjudicated as having filed 3 "frivolous" pro se actions in court and is permanently barred from any relief against unconstitutional actions of the government, putting a bull's eye for further government abuse on his or her head.

I was exposed to what was going on in the prison system of the State of New York when, while still a law student, I had an academic externship and then volunteered, for Prisoners Legal Services of New York, a non-profit protecting prisoner's rights (at least some of them).

When I told my professor of Advanced Criminal Law who was previously the Commissioner of New York State Department of Corrections appointed to clean up the system after the notorious Attica riot, that prisoners in New York are starved as punishment, he got excited to the point of accusing me of lying.  I will give credit to his no less famous integrity when the next day he came back, told me that he verified my words, had them confirmed and apologized.

New York does starve prisoners as punishment, as do other states.  Prisoners punished by "the loaf" wrote to us in Prisoners Legal Services, reported dramatic, health and life-threatening loss in weight, and all we could do is file administrative appeals for medical releases from solitary where that "loaf" was "administered".

The organization had severe budget restrictions, and, when I was put on the "intake" of letters from prisoners, one of my main duties was to write rejection letters:

• no, we do not handle habeas corpus proceedings;
• no, we do not handle criminal appeals;
• no, we do not handle motions to vacate criminal convictions based on new evidence;
• no, we do not handle claims of unlawful solitary confinement unless you are put into it for more than 18 months (!)

No, no, no, no.  It was heartbreaking to read prisoners letters, and it was even more heartbreaking to have to write rejection letters - based on budget constraints only.

My experience in Prisoners Legal Services shaped my determination to provide a wide specter of services to people, from family court, to civil proceedings in the Supreme Court, to criminal proceedings, to civil rights cases in federal courts.

For the majority of prisoners the only rescue available to them is their own determination and hard work.  

Note what a prisoner convicted of manslaughter said to the reporter after winning the debate against a team of privileged kids, Harvard law students: that prisoners may lack in rhetoric, but make up in hard work.


And their law libraries where there are no online Westlaw databases, where they have to learn the As and Bs of legal research through books, from scratch, which is time-consuming, but prisoners have time, and they use it.

There are many successful civil rights cases brought, against all odds, by pro se prisoners.

And, as far back as in 1969, the U.S. Supreme Court allowed "jailhouse lawyers" to provide legal services to other prisoners - because of the absence of any other alternative.

Well, time has come where 80% of Americans cannot afford services of licensed attorneys.

Yet, there is an untapped resource who, maybe "lack in rhetoric", but makes up by hard work and determination, to the point of being BETTER than the best of the best of American law students.

Loss of liberty does not constitute loss of a right to earn a livelihood.

Prisoners who trained themselves in the law, as well as anybody else who did that, should be able to provide legal services to people.

That will be fair.

That will close the "justice gap immediately".

Representation by such "jailhouse lawyers" will be no worse, and actually better, than representation by privileged and politically entrenched people with eyes on political career and not on meeting their clients' needs, even in raising challenging issues.

But, to tap into prisoners as a resource of legal services, prisoners must be protected from repercussions for such services that can often involve stepping on toes of government and suing governmental officials for misconduct.

And, notwithstanding whether prisoners are or are not a valuable resource of legal services to other people, discriminatory statutes:

Prisoner Reform Litigation Act, with its 15-day statute of limitations for constitutional violations;
Anti-terrorism and "Effective Death Penalty" Act, with its cut off of possibility of exonerations for wrongfully convicted condemned prisoners;
The 3-strikes act putting a permanent bar on protection of prisoners against constitutional violations by the government, even after they beat all odds of PRLA, and applied in a biased and arbitrary fashion by the courts - 

all of these "beauties" of discrimination against prisoners should go, along with death penalty, prolonged solitary confinement and starving prisoners as punishment.

After all, we are the beacon of freedom and democracy for other countries of the world.

Right?

The desperate call of the American Bar Association to state courts to do something to retain control over the legal profession by the judiciary

The American Bar Association has obviously seen the writing on the wall when the North Carolina Board of Dental Examiners v FTC was decided in February of 2015 by the U.S. Supreme Court.

In that case, the U.S. Supreme Court rejected arguments that the "state" licensing and disciplinary board run by supermajorities of regulated professionals (market players), is entitled to immunity for antitrust activities, activities to quash competition under the guise of licensing or disciplinary process.

Several bar associations sided with the anticompetitive actions of the Dental Board claiming that the decision will affect them as well.

They did not win.

After the decision, since February 2015, nothing was done in the majority of the state to implement the U.S. Supreme Court ruling and correct the situation where attorney licensing and discipline is run as a criminal antitrust cartel by courts and disciplinary committees dominated by private interests.

I wrote extensively about New York State Statewide Commission for Attorney Discipline, conflicts of interest in its creation, crookish ways in handling public hearings, crookish ways in selection and handling of witnesses, and crookish ways in producing the results which did not address antitrust activities one bit - and contradicted positions of members of the Commission in litigation.

I also indicated that inconsistencies in Commission members' positions have already been challenged through a civil rights appeal and through a Rule 60 motion to vacate in federal court in the Northern District of New York, in the case called Neroni v Zayas, Case Nos. 3:13-cv-127 (NDNY) and 15-2030 in the U.S. Court of Appeals for the 2nd Circuit.

On October 7, 2015, yet another "draft resolution" of yet another "Commission" of yet another professional organization of attorneys was published and distributed by legal blogs, mainly proposing "how to rearrange the deck chairs on the Titanic".

It features as objective No. 1 "protection of the public" and only No. 8 "independence of professional judgment".  Of course, it is good that such an objective even made it into the list of goals of an attorney professional organization, even if it is on the bottom of perceived priorities for that organization.

Yet, independence of professional judgment goes hand in hand with the primary goal of attorneys - to protect interests of their clients, members of the public.  And this independence is severely undermined by the very fact that the government, whose misconduct attorneys are supposed to challenge, controls that same attorney's livelihood.

Under such a scheme of things it is unreasonable to expect any independence of professional judgment whatsoever and any protection of the public.

Of course, what is prominently missing from the objective is restructuring attorney discipline to have it comply with antitrust laws.  That will require the elite of the legal profession and the judiciary to cede too much power.

This is the appeal by the ABA to "highest state courts" in the report:

Count on the legal profession to be evasive.

The report does not say - please, please, please, DO SOMETHING before we all are dragged on federal indictments under the Sherman Act and sued into bankruptcy.

Instead, the legal profession "urges each state's highest court, and those of each territory and tribe", to be guided by objectives that ABA created in its October 7, 2015 report (while being silent on objectives demanded by the U.S. Supreme Court precedent since February of 2015 to stop running  occupational licensing, including attorney licensing as a criminal cartel) and to:

(1) "assess the court's existing regulatory framework and

(2) identify and implement regulatory innovations related to legal services beyond the traditional regulation of the legal profession."

It is very vague, and it is misleading through its vagueness, because it is not a "regulatory innovation" to bring a regulatory scheme in compliance with federal antitrust laws.

And, what the ABA report DOES NOT request, even though it gives lip service to "independence of professional judgment" as one of its goals (at the bottom of priorities) is  - ABA does not request to deregulate the legal profession, remove it from dependence on governmental approval, due to its duty to challenge improprieties in the government on behalf of clients.

The report then went into a little of a self-aggrandizement, indicating that the ABA searched far and wide in history of attorney regulation across the world 

- while remaining deliberately obtuse as to the decision of the U.S. Supreme Court on the very issue of occupational regulation that triggered the report to begin with, in an attempt to save the legal profession from the impending doom of deregulation.

The report also contains a disclaimer in bold font:

The disclaimer makes the proposed goals meaningless, since the proposed goals were not approved by the governing body of the organization that issued the report.

The true goal of the "draft resolution" is contained, in my view, in this paragraph:

Even more specifically, in the last sentence of the paragraph:

"...if supreme courts are more expressly guided by regulatory objectives, U.S. jurisdictions may be more successful in retaining judicial control over the regulation of legal services than has been true elsewhere".

That, in plain English, means that:

1) the ABA implicitly acknowledges that now regulation of attorneys by courts does not follow these objectives:

and 

2)  that control by the judiciary over attorney regulation is presently slipping ("U.S. jurisdictions may be more successful in retaining judicial control", and

3) that retaining such control by the judiciary over attorney regulation is desirable for the legal profession - of course, with a disclaimer that what is expressed is not the "policy of the ABA".

The conflict of interest for the professional attorney organization to, at the same time, put "protection of the public" as No. 1 goal, and still fight for keeping the legal profession in the grips of the judiciary, and saying nothing about removing the anticompetitive nature of attorney regulation by that judiciary, and saying nothing about the judiciary undermining independence of attorney's professional judgment by sanctions, court rules and the use of attorney discipline to quash critics of judicial misconduct - all of which HURTS that same public.   

It is an obvious cryout to partners in crime to preserve the profits and power of the legal profession, and has nothing to do with protection of the public.

The "draft resolution" provides NO guidance whatsoever as to what are the factors undermining "independence of professional judgment" of attorneys, or how to remedy the situation.

Does it seem only to me that this is a cry for help to the courts to rescue the financial well-beings of lawyers by "doing something"?

Sure seems like that to me.

The lame first step towards deregulation of the legal profession - still thank you, Pennsylvania

I just blogged about an amazing case from Pennsylvania where a court granted a litigant in front of an administrative unemployment benefits panel a right to "representation of his choice", where the choice were two individuals with suspended licenses.

The denial of unemployment benefits to the challenger, Mr. Powell, was reversed and remanded ONLY because "representatives of his choice" were not allowed to represent him at the hearing.

Mr. Powell, brought his challenge for "representation of his choice" as a due process challenge.

Even though the court did not say in so many words that Mr. Powell had a DUE PROCESS right to representation of his choice, but only a "statutory" right, it clearly seems that Mr. Powell was granted a constitutional due process challenge, because Mr. Powell DID NOT RAISE a statutory claim, only a constitutional claim.

Yet, the analysis both by the Board that denied Mr. Powell representation by two men with suspended law licenses, which was not clearly addressed by the Judge, was bizarre and presents a separate equal protection problem, for Mr. Powell's representatives.

This is what the court said about the Board's claimed grounds to bar Don Bailey and Andy Ostrowski from representing Mr. Powell before the unemployment benefits panel:

First of all, the word combinations "suspended attorney" or "disbarred attorney" is a legal oxymoron, these two words are legally incompatible.

The correct way of putting it, not to obscure the legal status of the person described is "a NON-attorney whose law license was suspended or disbarred".

By calling such people "suspended attorneys", or "disbarred attorneys", the implication is made that the legal status of such people differs from those who were never licensed to practice law to begin with.

And that is exactly how the Board interprets the statute:

• Non-attorneys are allowed to represent clients at the unemployment benefits proceedings, and
• "suspended attorneys" cannot, 

even though both of these classes are united by the same attribute - they DO NOT HAVE A LAW LICENSE, and whether they do not have it because they NEVER HAD IT, or because IT WAS TAKEN AWAY, has no legal difference as to THEIR rights, including their rights to employment or business opportunities.  That is THEIR due process and equal protection challenge.

Instead of taking this "distinction without a difference" head-on, the court engaged in mind games.

The court cites the Disciplinary Rules that prohibit individuals who lost their law licenses from PRACTICING LAW, then concluded that what Mr. Bailey and Mr. Ostrowski attempted to do was NOT practice of law, by statute, but then made the following mysterious statement:

Even though the court's finding that representation before the unemployment benefits board DID NOT constitute the practice of law, and analysis of the situation should have ended at that, the court started quoting Pennsylvania attorney disciplinary rules which are clearly unconstitutional because they prohibit a non-attorney with a suspended or revoked license MORE than the law prohibits a non-attorney, which is very clearly outside of the authority of a LICENSING body that has just two functions:

1) give a license;

2) take away a license,

but has no right to take away, with the taking of a license, MORE RIGHTS than the person had before he obtained that license.

The court's analysis is most peculiar.

The court quotes the Disciplinary Rules that the Board quoted and that the court rejected as a basis of Mr. Powell's right to "representation of his choice";

Then, the court quotes the governing Pennsylvania statute that allows representation at unemployment benefits hearings by non-attorneys;

Then the court, stunningly, states that whether such representation did or did not constitute the practice of law, is not the question to be decided by the court, BECAUSE representation by non-attorneys is allowed.

Yet, such a ruling presents an inherent conflict, because non-attorneys MAY NOT be allowed to engage in what constitutes the practice of law, where such a thing is prohibited by a criminal statute, unauthorized practice of law, UPL, so what is allowed to non-attorneys, DOES NOT, as a matter of law, constitute the practice of law.

Then, the court which has the right to interpret the Disciplinary rules against attorneys, refused to do so and stated simply that the Board had no business relying upon the Disciplinary rules instead of the governing statute in deciding the question of representation of Mr. Powell, and used the threatening word combination "potential disciplinary violation" in relation of the individuals chosen by Mr. Powell to represent him.

The court was correct to say that it was improper (actually, a due process violation, but the court was apparently afraid to say so, not to show that the case is decided on constitutional grounds) to sanction one individual for actions of another.

Yet, the court was incorrect to deem what did not constitute the practice of law as a "potential violation" of disciplinary rules for Mr. Bailey and Mr. Ostrowski.

Thus, the court, at the very time, took from Mr. Powell with the left hand what it was giving with the right hand.

It allowed TO MR. POWELL representation by Mr. Bailey and Mr. Ostrowski, but left open the question whether, by such representation, Mr. Bailey and Mr. Ostrowski will be engaging in unauthorized practice of law that could lead them into a DOUBLE criminal prosecution - for UPL and for contempt of the court order of suspension.

So, for Mr. Powell to get representation of his choice, Mr. Bailey and Mr. Ostrowski should either plunge head on into his representation and risk criminal prosecution afterwards, or file pre-enforcement actions in federal court as a matter of equal protection of laws, claiming that licensing authorities may not take from them MORE THAN LICENSING GAVE THEM - their license, and the rights it gives.

The decision is still a victory, even though a bittersweet victory.

The importance of it is still the wording that Mr. Powell has his right to "representation of his choice" that gives a rise to equal protection challenge for litigants in other forums where they cannot afford a licensed attorney and want representation by a person of their choice.

And, at the same time, by its vague, dubious and wiggly ruling that Mr. Powell can use Mr. Bailey's and Mr. Ostrowski's services, but Mr. Bailey and Mr. Ostrowski may still be exposed to violation of a court order of suspension for unauthorized practice of law, interpreted for "suspended attorneys" in a broader way than for people who were never licensed to practice law to begin with.

So, at least, the wiggly Pennsylvania decision gives rise to TWO due process and equal protection challenges, on both sides - by the litigant and by his representatives.

Let's look once again at the two sets of Pennsylvania law that the judge has quoted in his decision.

This is the governing statute defining who may represent claimants in unemployment benefits proceedings:

The court even quoted a decision that such representation does not constitute the practice of law.

Yet, the court also quoted this law:

where the words that prohibit "representing himself or herself as a lawyer or person of similar status", "rendering legal consultation or advise to a client" and "appearing on behalf of a client in any hearing or proceeding or before any 

• judicial officer, 
• arbitrator, 
• mediator, 
• court, 
• public agency, 
• referee, 
• hearing officer
• or any other adjudicative person or body

So, Section 214 of Unemployment Compensation Law allows Mr. Powell representation by Mr. Bailey and Mr. Ostrowski in front of a referee and an unemployment "adjudicative body".

Yet, Disciplinary Rule 217(j)(4) prohibits to Mr. Bailey and Mr. Ostrowski to provide to Mr. Powell such services, even though such prohibition goes far beyond revocation of a license and constitutes direct discrimination against Mr. Bailey and Mr. Ostrowski, as compared to people who never had a law license, depriving them of their due process right to earn a livelihood because they lost a law license - while allowing to engage in the same business activity to people who never had a law license.

Since law licensing is declared to exist in order to protect consumers, it makes no sense whatsoever to NOT protect consumers by allowing representation by people who never had a law license, and to attempt to protect them where they are already unprotected from representation by non-attorneys, by blocking representation by Mr. Bailey and Mr. Ostrowski, subjecting Mr. Bailey and Mr. Ostrowski to a disciplinary violation and, likely, to contempt of court proceedings.

Now, what constitutes contempt of court is a crime and criminal statutes must send PRIOR notice to all people to whom they are applied, otherwise they are nothing more than unconstitutional ex post facto law and bills of attainder.

The decision regarding Mr. Powell where the judge first cites a COURT DECISION (not a statute) as to what does or does not constitute the practice of law, and then is still unsure whether a certain act does or does not constitute the practice of law and simply ducks the issue as irrelevant to the proceedings, even though it is very relevant, because by tiptoeing around the issue in its fear to offend the organized bar, the court, as I said above, took from Mr. Powell with one hand what it gave with another - by putting the axe of criminal prosecution over the heads of the very same representatives whose representation the statute and the court allowed to Mr. Powell.

It was the same in the denial of reinstatement to Mr. Brandes that I quoted in the blog about New York discrimination where the court similarly determined what constitutes the practice of law based on a case, not a statute:

" The practice of law involves the rendering of legal advice and opinions directed to particular clients" (Matter of Rowe, 80 NY2d 336, 341-342)."  This is the ruling in New York, of June 3, 2015.

This is a ruling from Pennsylvania of September 17, 2015:  

The "notice given backwards, after the fact" as to what constitutes the practice of law is present in both cases.

And, if what constitutes the practice of law is so unclear that courts cannot really decide what it is, it cannot be either licensed, nor can people be prosecuted, as a disciplinary matter, as a civil contempt matter, or especially as a criminal contempt or UPL (unauthorized practice of law) matter for violating this "I will decide what it is after you do it" law.

For practical purposes, the court put Mr. Powell in a conundrum.

The court actually said - Mr. Powell, YOU can get their representation, that is lawful, but I am not sure whether it is lawful for THEM to represent you.  So, the court left Mr. Powell in a conundrum, and Mr. Bailey and Mr. Ostrowskin in front of a dilemma as to whether they may represent Mr. Powell without the risk of being prosecuted.

I recently wrote about how the State of New York discriminates against "suspended and disbarred attorneys" in employment and business opportunities, as well as in criminal prosecutions, as compared with individuals who never had a law license.

Apparently, the same occurs in Pennsylvania, even though this case opened a crack for a challenge, and for a good expert, all that is needed is a crack.

And Don Bailey and Andy Ostrowski are professionals in civil rights law.

I wonder what will be the aftermath of this stunning decision, and will follow and report my findings.

Stay tuned.

Pennsylvania leads the way in deregulation of the legal profession

On September 17, 2015, Pennsylvania made a historical step in deregulation of the legal profession.

The Commonwealth Court of the State of Pennsylvania, Judge P. Kevin Brobson, God bless his wisdom, has ruled that a person by the name of Gary H. Powell, was denied "representation of his choice" when the board refused to allow him to be represented by two men with suspended attorney licenses, Don Bailey and Andy Ostrowski.

Of course, Judge Brobson has ruled that representation in front of the board in challenging, on behalf of a client, of denial of unemployment benefits, is not the practice of law.

The ruling that Mr. Powell has a right to "representation of his choice" by non-attorneys raises clear equal protection issues as to litigants before other forums, like courts, because denying litigants in court "representation of their choice", without any restrictions, while allowing litigants before "a referee" the very same thing does not make any sense.

So, deregulation of the legal profession has already started, even though in a clumsy way, I will talk about it in a separate blog post.

The case of Mr. Powell clearly shows how accomplishment of the two tasks:

1) deregulation of the legal profession and undermining the basis of power and corruption for an entire class of American "nobility"; and

2) closing the so-called "justice gap" where the staggering 80% of Americans cannot afford court representation,

can be PRACTICALLY approached.

The vehicle of change should be a petition or lawsuit BY A LITIGANT who wants to be REPRESENTED BY A PERSON OF HIS CHOICE.

Since such an act may be charged as aiding and abetting unauthorized practice of law, the challenge should be first brought in court, as a challenge to constitutionality of state and federal statutes and rules restricting even a criminal defendant's 6th Amendment right to counsel (in a broad sense, as in "advisor", "representative") "of their choice" to only counsel from a list approved (licensed) by the state.

That is especially true when the state restricting the right to counsel is the state prosecuting the criminal defendant.  

This is called in civil rights law a "pre-enforcement action".  Whether it will succeed - I don't know, there are no guarantees.

But the wording of the Pennsylvania case that Mr. Powell has a right to "representative of his choice" clearly may be used to support an equal protection challenge - such as why my 1st Amendment Petitions Clause right is less worthy of a right for a "representative of my choice" than Mr. Powell's?

The 5th Amendment does not say "the right to a licensed counsel of your own choice", and attorney licensing did not exist at the time the 5th Amendment was enacted.

The doomsday of the licensed legal profession is near.  It is only a matter of time who, out of the 80% of Americans who cannot afford representation by licensed attorneys, will file such a lawsuit out of pure despair, opening the floodgates of such lawsuits.

The ruling was in favor of the litigant's right to "representation of his choice".

Whether such a choice will mean punishment for the suspended or disbarred attorneys representing such a litigant before an unemployment benefits panel, is another story.  I will continue to analyze this amazing decision in the next blog post.

Stay tuned.