From Atty Tatiana Neroni–how attorney discipline often (doesn’t) work at all…

From Tatiana:

The topic of how attorney licensing affects the public is very vast, and I covered it in multiple blog articles (I have nearly 2000 on the blog now).  I cannot provide links to all of them, and you won’t be able to review them over this short time.

But, the idea is that it should be the consumer’s choice and not the government’s as to who represents people in court, and that attorney licensing – as a sort of help in marketing for an attorney – creates an illusion of protection in the public, while it provides no protection, but instead serves to perpetuate the “justice gap”, the situation where many people cannot afford an attorney.

I would like to cover – time permitting – the concept of attorney licensing as help offered to consumers by the government, to help them in picking their provider of services, and, since it is an offer of help, the possibility for the consumer to reject that help and ask for an opting-out provision in respective laws, as well as for an option to hire an unlicensed provider.

I would like to explain how the illusion of competency is created:

1) that attorneys are not necessarily taught what they need for representation in law schools;

2) are not necessarily tested in the law they are practicing on the bar exams;

3) and, are not disciplined for violation of disciplinary rules, if they work for the government or are well-connected politically – and here the anti-trust issue can be raised in how attorney discipline is imposed.

If it is the public that is protected, then the question is why the public is not allowed to cast the final vote in attorney disciplinary cases.  If attorneys are “experts” in such proceedings, they should be called as such – expert witnesses – and should be called in by the lay disciplinary panels as such, on an as-needed basis, to inform the panels, not to make the decisions.

I can also focus on the need for an independent court representative, whose livelihood does not depend on whether he or she pisses off the judge or not by raising sensitive issues.  We can discuss the issue that, because of how attorney licensing works, and because it is entirely in the hands of judges, it is increasingly difficult, if at all possible, to find an attorney who would make a motion to recuse – to ensure impartial judicial review for the client.

I think, in this respect it is all right if you ask me questions about my disciplinary status, I just did not want to go very far into it since my appeal is still pending.  But, I can certainly state that I was suspended for making motions to recuse – for doing my constitutional duty to my clients, and that my suspension removed my skills from the reach of many people, which did not make the justice gap any narrower.

Here are some links to my blog posts:

1) the idea of deregulation goes mainstream – on the recent criticism by George Mason Law school professor Ilya Somin of Justice Sonya Sotomayor’s appeal to force attorneys into mandatory pro bono service – Professor Somin instead offers three solutions – deregulation, corporatization of legal services, and introducing vouchers for indigents given directly to the clients, so that they, and not the court, can choose their own public defender to represent them.

http://attorneyindependence.blogspot.com/2016/05/the-idea-of-deregulation-of-legal.html

2) I have several posts about Kathleen Kane and the way attorney disciplinary rules are used to oust or interfere with the work of a public official, voted for by millions of people, who dared to go against the legal establishment in doing her job.

3) http://attorneyindependence.blogspot.com/2016/05/american-courts-rule-that-protection.html

The U.S. Supreme Court has ruled that the poor can have an unlicensed attorney if otherwise they would go without any attorney at all –

4)  http://attorneyindependence.blogspot.com/2016/05/when-criminal-conviction-is-at-stake-in.html

The decisions of several highest state courts – regulating attorney licenses – that said that suspension of an attorney, even for disciplinary reasons, may have nothing to do with his competency or ability to effectively represent a client (criminal convictions sustained despite representation by a suspended attorney in Texas, California, Michigan).

5) on education of attorneys – antitrust lawsuits against BARBRI for stifling innovation in legal education;

http://attorneyindependence.blogspot.com/2016/05/to-consumers-of-legal-services-when-you.html

6)  ABA close to approval of online education which previously was claimed as inadequate for protection of consumers – because “brick and mortar” schools are financially hurting by reduced enrollment:

http://attorneyindependence.blogspot.com/2016/04/online-law-education-is-now-good.html

7)  admission of attorneys through reciprocity without ever testing them on knowledge of state laws

http://attorneyindependence.blogspot.com/2016/05/while-india-invalidates-its-bar-exam.html

We can, of course, discuss North Carolina Board of Dental Examiners v FTC, FTC guidelines introduced after that,

https://www.ftc.gov/system/files/attachments/competition-policy-guidance/active_supervision_of_state_boards.pdf

my complaint to FTC of antitrust regulation of the legal profession – and the fact that, despite amicus briefs that state bar associations filed in opposition to stripping antitrust immunities from market-player-run disciplinary boards in North Carolina Dental, 1.5 years after the precedent, no changes were made by states to rectify the situation where attorney regulation is run in all states and on the federal level without participation of consumers (for whose benefit attorney regulation allegedly exists), basically, it is run as a criminal cartel that stifles innovation, competition and punishes critics of the government, stripping consumers of skilled advocates who are willing to work at reduced cost and pro bono.

If you want me to, I can go over New York new disciplinary rules for attorneys that were introduced after North Carolina Dental, but did not rectify the antitrust problems in discipline, did not mention selective enforcement of attorney discipline against connected attorneys and prosecutors, and did not mention judicial corruption and retaliation as influencing attorney discipline – all these issues were raised in public hearings before the Commission that was about to introduce such rules (the Commission also consisted of a super-majority of market players, consumers were practically not present there).

Basically, all of the above boils down to a simple set of recognized facts:

1) legal education does not ensure competency of attorneys, as attorneys are not trained in all areas of laws their license covers;

2) bar examination does not ensure competency of attorneys, and bar exams are often skipped under comity agreements;

3) attorney discipline as protection of consumers is an illusion, because:

  1.   a) it appears to exist only for criminal defense attorneys, civil rights attorneys for criticizing the government – and, on rare occasions, connected attorneys are disbarred, but only after they are convicted by the feds after years and years of corruption;
  1.   b) it is run by competitors – consumers of legal services who could voice an objection against removal of a criminal defense, family court or civil rights practitioner, do not have a say.

There is a U.S. Supreme Court case by which the top court of the country has declared that a person can hire an unlicensed individual if the state cannot provide a licensed individual for the same purpose, and if people will go without a court representation if the unlicensed individual is not allowed to work for them –  Johnson v Avery,

https://supreme.justia.com/cases/federal/us/393/483/case.html

Yet, the only case thus known when a consumer asked representation by an individual without a valid license was that of my husband, and that motion was removed from the file without review on the merits.  I can discuss that, if you would like me to.  My husband, as you know, claimed that attorneys are afraid to touch his case, and the issues he needs to be raising (such as recusal of the court) are sensitive issues that regulated attorneys are afraid to raise, for fear of sanctions – exactly the Johnson v Avery situation that he will go without an attorney if he is not allowed to hire an unlicensed individual (me).

You know issues I raised over the years in the blog, Andy, they are all connected, and I am flexible as to which way the discussion will go.

Those are just some points that can be covered.

Yet, throughout the interview we can go back to the same issue – that representation by a licensed attorney, offered by the government as help in marketing, should be an option for the consumer, not a mandate – and that is especially true where the government regulating attorneys, is also suing the consumer and/or setting rules restricting the consumer’s time to hire an attorney in order to preserve the consumer’s rights in court.

I think, this idea of occupational licensing being an option, not a mandate, is fairly novel for the public, and should be discussed from different aspects, and especially from the point of people’s right to make their own decisions and to reject help whoever is offering it, and especially when it is offered in situations of grave conflicts of interest (like in cases where the consumer is suing the government or when the government is suing the consumer).

Tatiana Neroni

See her blog at http://attorneyindependence.blogspot.com/.  It has about 2000 posts on it with ethics questions and rights of the public to have fair representation.

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