On constitutionality of government regulation of opponents’ representatives in court in the United States

 

On constitutionality of government regulation of opponents’ representatives in court

in the United States

 

Tatiana Neroni, Juris Doctor

October 2, 2021 ©

Court cases

Bates v. State Bar of Arizona, 433 U.S. 350 (1977)............................................ 2

Brazee v. Michigan, 241 U.S. 340 (1916).......................................................... 2, 3

Butz v. Economou, 438 U.S. 478 (1978) 1

Gideon v. Wainwright, 372 U.S. 335 (1963)................................................... 2

Matter of Giuliani, 2021 NY Slip Op 04086, 197 AD3d 1 (1^st Dept., June 24, 2021)................................................ 2, 3

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)................................... 3

Statutes

42 U.S.C. 1988(b), Proceedings in vindication of civil rights, attorney’s fees....................................................... 2

Other Authorities

James E. Moliterno, Politically Motivated Bar Discipline, 83 WASH. U. L. Q. 725 (2005)............................................ 3

Jones, Ira.  Critical Race Theory Remakes Connecticut School District | National Review, Indiana Conservatives for reason, July 19, 2021..................................................... 3

Storace, Robert.  Attorney Miller Believes Deck Is Stacked Against Her for Reinstatement to State Bar.  Civil rights attorney Josephine Smalls Miller will make her case for reinstatement to the state bar on Sept. 1, Connecticut Law Tribune, August 21, 2021........... 3

Constitutional Provisions

U.S. Constitution, Amendment 6, Right to Counsel............................................ 2

 

 

The U.S. Supreme Court has included into its requirement of fair court proceedings adversarial nature of such proceedings[1].

There may be no true adversarial court proceeding where one opponent (especially – the more powerful one) controls the other, or its representative, by means outside of the particular court proceeding, where

1.     A party in litigation must choose its trusted representative in court from the list approved by its opponent in litigation, which undermines any possibility of trust to such a representative; and

2.     A powerful party in litigation (the government) may remove representatives of its opponents in litigation at a whim, without knowledge or consent from the party who has chosen that particular representative.

Yet, this is exactly what is happening in the American courts – and the recent case of New York’s suspension of Rudy Giuliani’s law license[2] is just one of such examples.

Back at the beginning of the 20^th century the U.S. Supreme Court has ruled that the only business that may be constitutionally regulated by the government[3] is a business of such a nature that without a legislative regulation a lot of people will suffer serious harm[4].

At the same time, the U.S. Constitution recognizes the important role of an attorney in cases where an individual opposes the government in court, by

·       its direct text[5],

·       federal statutes providing financial incentives for attorneys to sue the government on behalf of indigent individuals for human rights abuses[6] and

·       by US Supreme Court precedent[7].

States also provide free counsel to indigent defendants in “quasi-criminal” settings where proceedings threaten loss of constitutional rights, such as child neglect/abuse proceedings by social services against parents and “civil” contempt proceedings.

In view of importance of the right to counsel in cases where the government is the opponent in litigation, whether the government is the plaintiff (criminal, CPS cases) or a defendant (federal civil rights lawsuits), it is important for litigants to have a choice of representatives in court whose livelihood is not controlled by opponent in litigation, the government.

Yet, not only livelihoods of such attorneys are, in fact, controlled by their opponent in litigation, the government, but such representatives of opponents of the government in litigation are actually targeted by the government in license revocation proceedings, to remove the counsel of choice from the opponent, without opponent consent, and to gain this way an advantage in litigation.

The license revocation of the civil rights lawyer Rudy Giuliani who dared to bring a civil rights lawsuit against the government claiming improper actions of government officials in several states presidential elections in 2020[8] is one of the most recent and the most illustrative examples of this targeting[9].  The license revocation was targeting not only Giuliani himself, but, very obviously, his client Donald Trump who was deprived of his chosen counsel in and out of court by his opponents in litigation.

Another recent example is revocation of the license of a black civil rights attorney from Connecticut, for suing a judge and “slandering the judicial system” of the state, specifically, for accusing the state court system of racism[10].  Similarly, it was attorney Miller’s clients – opponents of the government in civil rights lawsuits – who were stripped of her services without their consent, by their opponents in litigation, when license was revoked by the government from civil rights attorney Miller, on contrived grounds:

·       slandering a system, and especially a government system, is not possible to do legally in the USA, since in American jurisprudence, one cannot “slander a system”, only a person,

·       the judge attorney Miller sued in federal court never counter-sued her for defamation,

·       had the judge done so, he would have lost because of high pleading standards and high burden of proof put on government officials in defamation lawsuits in the U.S. Supreme Court 1^st Amendment jurisprudence[11],

·       the reason for this political targeting and punishment of the civil rights attorney in Connecticut for asserting that state courts are racist becomes tragi-comical in view of the same state’s decision to teach in its schools the “Critical race theory”, asserting that systemic racism permeates all governments (including, obviously, the state courts), and the entire society in the United States[12].

Not in Connecticut, not in New York, not anywhere else in the United States, did legislatures determine, in order for the government to regulate representatives of its own opponents in litigation, civil rights/criminal defense/defense-against-CPS attorneys, that business of these lawyers is of such nature that without legislative control over such services a lot of people will come to a lot of serious harm[13].

On the opposite, a lot of people are obviously coming into a lot of serious harm when they are given no choice by the government, but to choose representatives in court, when sued by the government, representatives whom they must trust with secret details of their lives and entrust the future of their own life, liberty, property – only from the lists approved by their powerful opponent in litigation.

In fact, while such control exists, services of counsel in defense of civil rights situations that are so highly valued – in words, at least - by the U.S. Constitution, federal statutes and the U.S. Supreme Court precedent are stripped of their value through control over them by the powerful opponent in litigation, the government.

Moreover, while such control exists, none of court decisions in cases where government is a party in litigation may be considered legitimate, since the process used in arriving at those decisions lacked the true independence of the representatives of the government’s opponents in litigation, and thus lacked the true adversarial nature required by the U.S. Supreme Court for court proceedings.

It is obvious that regulation by the government of criminal defense, defense-against-CPS and civil rights lawyers is unconstitutional as regulation of representatives of government’s opponents in litigation since it

·       emasculates people’s right to counsel given by the U.S. Constitution or federal statute,

·       allows the most powerful party, with the burden of proof in criminal and child abuse/neglect cases, to always have an unfair advantage in such litigation,

·       destroys legitimacy of court decisions in cases where the government is a party in litigation by removing the required element of court proceedings – a true adversarial nature of such proceedings.

Regulation by the government in the US of representatives of its own opponents in court must stop.

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[1] Butz v. Economou, 438 U.S. 478 (1978) (“the safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct. The insulation of the judge from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal are just a few of the many checks on malicious action by judges”, emphasis added).

[2] Matter of Giuliani, 2021 NY Slip Op 04086, 197 AD3d 1 (1^st Dept., June 24, 2021)..

[3] The U.S. Supreme Court has ruled that the “practice of law” is a business in Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (regulation of lawyers may not forbid business advertisements of their services by lawyers).

[4] Brazee v. Michigan, 241 U.S. 340 (1916) (“Considering our former opinions it seems clear that, without violating the federal Constitution, a state, exercising its police power, may require licenses for employment agencies and prescribe reasonable regulations in respect of them, to be enforced according to the legal discretion of a Commissioner. The general nature of the business is such that, unless regulated, many persons may be exposed to misfortunes against which the legislature can properly protect them”, emphasis added).

[5] U.S. Constitution, Amendment 6, Right to Counsel.

[6] 42 U.S.C. 1988(b), Proceedings in vindication of civil rights, attorney’s fees.

[7] Gideon v. Wainwright, 372 U.S. 335 (1963).

[8] Matter of Giuliani, 2021 NY Slip Op 04086, 197 AD3d 1 (1^st Dept., June 24, 2021)..

[9] See e.g. Moliterno, James E.  Politically Motivated Bar Discipline, 83 WASH. U. L. Q. 725 (2005).

[10] See Storace, Robert.  Attorney Miller Believes Deck Is Stacked Against Her for Reinstatement to State Bar.  Civil rights attorney Josephine Smalls Miller will make her case for reinstatement to the state bar on Sept. 1, Connecticut Law Tribune, August 21, 2021.

[11] New York Times Co. v. Sullivan, 376 U.S. 254 (1964)..

[12] See e.g. Jones, Ira.  Critical Race Theory Remakes Connecticut School District | National Review, Indiana Conservatives for reason, July 19, 2021.

[13] Brazee v. Michigan, 241 U.S. 340 (1916).

New York may not regulate Giuliani (or other lawyers) because law license revocation courts officially merged with prosecution

New York may not regulate Giuliani (or other lawyers) because law license revocation courts officially merged with prosecution

 

 

Tatiana Neroni, J.D.

September 24, 2021

 

 

 

The U.S. Supreme Court has ruled that when a court combines in itself functions of a judge and a prosecutor in the same case, all decisions of such courts are null and void as violating 14^th Amendment of the U.S. Constitution, Due Process Clause[1].

New York law licensing courts have made prosecution in attorney disciplinary cases as an official part of the court as far back as in 1975[2] and continue to do the same until now.

Therefore, all decisions of New York courts imposing attorney discipline – including in Giuliani’s case – are null and void.

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[1] Williams v. Pennsylvania, 579 U.S. ___ (2016).

[2] Anonymous, an Attorney Admitted to Practice in the State of New York v NYC Bar Assn., 515 F.2d 427 (2nd Cir., 1975).

New York may not regulate Giuliani (or other lawyers) because its legislature has never clearly determined what it is that it is regulating when it is regulating “the practice of law”

 

New York may not regulate Giuliani (or other lawyers) because its legislature has never clearly determined what it is that it is regulating when it is regulating “the practice of law”

 

 

Tatiana Neroni, J.D.

September 24, 2021

 

 

The U.S. Supreme Court has declared that for any law to be constitutional, it has to be done by the legislature, and the legislature must clearly define in that law – so that an ordinary person of average education and intelligence understands it - what the law allows and what it prohibits, and the law must give a clear guidance to the executive branch (police and prosecutors) and to judges how to apply it[1].  

When New York regulates “admission to the bar”[2], it regulates not the same admission to the bar which requires a human body with a heartbeat, over 21 years of age and with some dollars in his or her pocket, but what it mysteriously calls “the practice of law”.

Yet, New York’s legislature so far did not come around yet to clearly define what “the practice of law” means.

Thus, New York may not, until it does so define, regulate any lawyers, including Rudy Giuliani, and any New York’s decisions admitting or expelling lawyers from “the practice of law” are null and void.

---

[1] Grayned v. City of Rockford, 408 U.S. 104 (1972).

[2] New York State Judiciary Law § 90.

New York may not regulate Giuliani (or other lawyers) because it has never determined that lawyers are a profession of such a nature that without its legislative regulation a lot of people will suffer a lot of serious harm

 

New York may not regulate Giuliani (or other lawyers) because it has never determined that lawyers are a profession of such a nature that without its legislative regulation a lot of people will suffer a lot of serious harm

 

Tatiana Neroni, J.D.

September 24, 2021

 

 

The U.S. Supreme Court has clearly stated over 100 years ago that the government may only regulated those businesses and professions which are of such nature that without legislative regulation, will cause a lot of people a lot of bad harm[1].

In other words, only inherently dangerous and dishonest professions and businesses may be constitutionally regulated by the government.

On that premise, why then do we have to populate our judiciary and our prosecutors only and exclusively with members of that inherently dangerous and dishonest profession?

Especially that the profession has proven its inherent danger and dishonesty by giving to themselves absolute immunity to commit crimes in office – as judges[2] and as prosecutors[3].

So, they have allowed themselves to fabricate cases, including Giuliani’s, with impunity – and now they are teaching Giuliani how to tell the truth to the public?

But if Giuliani sues them in federal court, will invoke judicial and prosecutorial immunity for fabricating cases?

This little inconsistency aside, there was never any determination by the New York legislature that the legal profession is of such a nature (dangerous and dishonest) that without legislative control a lot of people will suffer a lot of serious harm.

Therefore, according to the U.S. Supreme Court precedent[4], New York may not constitutionally regulate lawyers, and the decision against Giuliani is null and void.

 

 

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[1] Brazee v. Michigan, 241 U.S. 340 (1916).

[2] Stump v. Sparkman, 435 U.S. 349 (1978).

[3] Imbler v. Pachtman, 424 U.S. 409 (1976).

[4] Brazee v. Michigan, 241 U.S. 340 (1916).

 

The decision to suspend Giuliani’s law license: jurisdictional basis fabricated by the licensing court

 

The decision to suspend Giuliani’s law license:

jurisdictional basis fabricated by the licensing court

 

Tatiana Neroni, Juris Doctor

Initial publication in Russian on Academia.edu – September 7, 2021 ©

 

 

In its decision to preliminarily suspend the law license of Rudy Giuliani, lawyer to 45^th US President Donald J. Trump, the New York licensing court has reviewed and rejected Giuliani’s protest against court’s regulation of his political speech in and out of court and suspended Giuliani’s law license, before the formal charges were filed and without any hearing, because of his political statements about results of presidential elections 2020 in 4 states:

1.     Arizona,

2.     Georgia

3.     Michigan

4.     Pennsylvania[1].

In asserting its right to regulate political speech of attorneys in and out of court the New York licensing court relied upon two U.S. Supreme Court cases:

1.     Gentile v State Bar of Nevada, 501 US 1030, 1051 (1991), and

2.     Ohralik v Ohio State Bar Assn., 436 US 447, 465 (1978).

The reality is that neither one of these precedents of the U.S. Supreme Court contains permission to any governmental bodies, courts included, to regulate political speech of lawyers – with very narrow exceptions that did not apply in Giuliani’s case.

On the very opposite, in the former of the two precedents cited by the New York licensing court in Giuliani’s case, Ohralik v Ohio State Bar Assn., 436 US 447, 465 (1978), the essence of the case was about regulating of purely commercial speech of a lawyer – the so-called “ambulance-chasing”, imposing of the lawyer’s paid business to patients of hospitals without their consent.

Moreover, the U.S. Supreme Court has been very cautious not to regulate political speech of lawyers in Ohralik, and not to even appear as if it is attempting to do that – it stated specifically in Ohralik that the speech regulated in that case was not political in character. 

In the latter of the two precedents cited by the New York licensing court in Giuliani’s case,  Gentile v State Bar of Nevada, 501 US 1030, 1051 (1991), the essence of the case was disciplinary punishment of a criminal defense attorney who has won a jury trial for his client.  The punishment was for the lawyer’s press-conference before the formal charges were brought against his client, where the lawyer has publicly accused the local police of criminal activities, fabrication of a criminal case against his client and mishandling of the drugs seized by the police elsewhere.

The U.S. Supreme Court has actually vacated the attorney’s punishment, stating that

1.     An attorney may need to make out-of-court public statements on behalf of his client in the course of a court case if the attorney decides that the client’s interests so demand;

2.      An attorney may publicly criticize the government out-of-court despite a pending court case, which is political speech that the government may not regulate, with two exceptions – if the attorney has used in his/her political speech

1)     Information obtained through a mandatory court discovery process, and

2)     Information subject to a pre-trial court gag order.

The court in Giuliani’s case never mentioned that Giuliani used in his statements information falling into either of the above two exceptions, therefore, the New York court had no authority to regulate Giuliani’s political speech – in or out of court.

Therefore, Giuliani was correct in his protest that the court lacked authority to regulate his political speech through a license regulating procedure.

Moreover, the court in Giuliani’s case acknowledged that at all times when making his statements Giualiani acted in a representative capacity, as the voice of his client, 45^th US President Donald J. Trump.

The U.S. Supreme Court has stated more than half a century ago that the government may not do in an indirect way what it may not do in a direct way[2].

Donald J. Trump is not an attorney licensed by the State of New York to practice law, nor does he purport to practice law in the state of New York, and thus is not subject to regulation by New York State court regulating attorneys[3].

New York attorney licensing court had no authority to regulate political speech of 45^th US President Donald J. Trump – not directly and not indirectly, through regulating his representative, lawyer Giuliani.

Nor did the court have authority to regulate Giualini’s speech had that speech been on Giuliani’s own behalf, in view of the true holding and reasoning of the two US Supreme Court cases Giuliani’s court has (deliberately) misquoted.

Therefore, the Giuliani court had no jurisdiction over proceedings, its decisions are null and void and the continuing proceedings must be barred as unconstitutional.

 

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[1] Matter of Giuliani, 2021 NY Slip Op 04086 (1^st Dept, June 24, 2021).

[2] Speiser v.Randall, 357 U.S. 513 (1958).

[3] See New York State Judiciary Law § 90(2) (“The supreme court shall have power and control over attorneys and counsellors-at-law and all persons practicing or assuming to practice law”).

The ACLU hires people to practice law without a license, with a great salary and benefits, too

 

Here is a job just posted by the ACLU on Indeed.com.

Note that the ACLU does not require for this job either a law degree or a law license while the job clearly requires "practice of law" in Virginia.

In other words, the ACLU hires people to violate criminal state law?

But - since it is the child of Soros and Ginsburg - it can do anything?

------

Policy and Advocacy Strategist

American Civil Liberties Union Foundation

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Remote

$58,000 - $108,000 a year - Full-time

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Job details

Salary

$58,000 - $108,000 a year

Job Type

Full-time

Full Job Description

Description:

The Policy and Advocacy Strategist helps to develop and implement the ACLU-VA’s legislative, policy, and advocacy priorities by:

• Analyzing current and prospective local, state, and national ACLU issues.
• Conducting, analyzing, and presenting rigorous research which:
• Identifies and evaluates best practices around model policies and programs (legislation, ordinances, directives, practices), as well as implementation strategies.
• Building and maintaining trusted, respectful relationships with people directly impacted by the issues, community members and leaders, coalitions, allied organizations, issue experts, legislative staff, government officials, and elected officials.
• In coordination with Policy Director, lead and co-lead legislative and policy strategies which:
• Increase public and impacted community awareness of, and opportunities to engage on, civil liberties and civil rights issues.
• Will result in meaningful change and actively mitigate potential disparate impact on Black and Brown communities.
• Include a plan for successful implementation and a process for monitoring impact.
• Help lead legislative and policy program implementation by:
• Coordinating to develop and implement ACLU-VA’s legislative agenda and advocacy priorities, including but not limited to lobbying local government officials, members of the legislature, their staff and the Governor’s office, analyzing and tracking legislation, drafting legislation or amendments and preparing and delivering testimony
• Coordinating and participating in legislative and advocacy meetings to advocate on behalf of ACLU VA’s legislative agenda
• At each stage of the work, the Policy and Advocacy Strategist is expected to:
• Draft clear, concise internal and external memos and develop advocacy tools in coordination with the communications team– including fact sheets, talking points, public education materials, position letters, and policy briefs – in multiple formats for a range of audiences.
• Work with the Policy Team and community members to include the voices, perspectives, and experiences of those directly impacted by the issues being addressed into the process.

Salary Range: $58,000 - $108,000. To preserve the opportunity for advancement, we do not typically hire above the mid-point of the range.

Benefits include 4 weeks paid vacation; 4 weeks sick leave; employer-paid medical, vision, and dental insurance for staff and eligible dependents; a 401(k) retirement benefits plan with employer match; life insurance; and short and long-term disability insurance.

Due to COVID-19 and our desire to keep our employees safe, our organization is currently operating remotely. This will continue until at least January 4, 2022. After that time, we have an interim remote work policy in place that will offer remote work flexibility to all staff until June 30, 2022. After that time, employees will follow the long-term remote work policy( to be discussed during the hiring process). This position will occasionally require a presence in the downtown Richmond office.

. Requirements:

Minimum Requirements

• Significant hands-on experience successfully advocating for legislative or policy change on social justice and/or civil liberties issues.
• Experience in researching, collecting, and synthesizing large amounts of information from a range of sources and providing recommendations on next steps.
• Proven ability to think critically and strategically about solving problems in a way that produces results.
• A commitment to Diversity, Equity, Inclusion and Belonging.
• A commitment to the mission and values of the ACLU of Virginia, including racial justice and anti-racism.
• Willingness and availability to work beyond the normal workday and on weekends during Virginia’s Legislative Session as needed.

Essential Skills & Abilities

• A Policy and Advocacy Strategist must have policy development and implementation experience, a curious and strategic mindset, and experience working on the core issues for criminal legal reform
• Experience lobbying or advocating for a legislative measure in Virginia or another state or local government.
• Demonstrated experience working with individuals and communities directly impacted by racial injustice.
• Experience tracking legislation through the legislative process at a state or federal level and communicating progress to others.
• Experience working in a diverse coalition to achieve a policy change outcome.

Desirable Experience, Skills & Abilities

• Proven ability to communicate clearly and effectively, explaining complex issues in accessible terms for a range of audiences, both verbally and in writing.
• Proven ability to work independently and manage multiple projects with competing deadlines on a tight timeline, while maintaining a strong attention to detail.
• Proven ability to build and maintain effective relationships with a broad range of constituencies, including people who have been impacted by the policies for which we advocate.
• Resilience and understanding that working towards systemic change is a marathon and not a sprint.
• Experience in helping to develop campaign goals, plans, strategies, and tactics to achieve outcomes on specific issue areas particularly policy experience advocating for anti-racist models for criminal legal reform is a plus
• Experience working on both issue campaigns and electoral campaigns a plus.
• Ability to communicate in Spanish, Korean, Vietnamese, Tagalog, Arabic, ASL or other language used by marginalized communities across Virginia.

American Civil Liberties Union Foundation

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