Judges, Antitrust, and the Licensing of Lawyers

Imagine what your choices in shopping, or watching TV, or taking vacations, would be if one of your neighbors whom you hardly know could decide who gets to go shopping, who gets to watch TV, and who gets to take a vacation, and when. You wouldn’t feel very free, would you? Especially if that neighbor could order you to jail if you disobeyed his choice. Imagine further that you were dependent on that neighbor who makes decision for your ability to do any of these things, ever at all. It may be that you CAN’T even imagine a world such as I’m describing, because it is so completely antithetical to your relatively autonomous lifestyle now. You get to choose what you do on a day-to-day basis, and you think of that as your right. Well, the government actually regulates us, a lot, and gives certain corporations a lot of power over us, in fact, but the truth is we still have a lot of choices to make. But not so for the lawyers who litigate in court.

It is a fact not readily apparent to laymen or even to private litigants, but lawyers are controlled by the judges who make decisions in court. Part of being a “good” lawyer is to know or make reasonably competent predictions about what judges will do in certain circumstances. That is how a “good” lawyer can help his clients. It is a very limited and restrictive world. And it is a conflict of interest because lawyers are ABSOLUTELY DEPENDENT on the judges who decide their cases. Although, typically, in State Court at least, the admission of lawyers to the bar is not directly dependent upon the decisions of active judges, the admission process is governed by each State’s Supreme Court which designates a “Committee of Bar Examiners” or an “Admissions Committee” which is totally dependent on and controlled by the judiciary. This creates a conflict of interest of vast proportions.

Judges, ideally at least, but also as defined by law, are supposed to be “impartial and detached” third-parties who make decisions in cases in which they have no direct interest or personal stake of any kind. And it is true that MOST judges do maintain enough integrity to avoid cases where they are actually related to the parties in some direct way (that is, they don’t preside over cases involving their relatives, closest friends, corporations in which they are shareholders—although that’s more difficult to perceive sometimes and may be abused much more than is commonly realized), but judges do NOT avoid conflicts of interest when it comes to their relationship with lawyers.

This automaton-like control is most readily apparent in the realm of criminal law, where judges see the same team of criminal lawyers in case after case in a fairly repetitive and formalized fashion. Criminal lawyers are thus the most limited and probably least creative of lawyers precisely because they know exactly how certain judges will react in certain cases and situations, and the criminal process in the United States at least has become mechanical and like an “assembly line” in a factory: a factory of prisoners, most sentenced to very long terms (especially in Federal Court, but increasingly also in State Court). Arrest or prosecution for anything, in the United States, almost automatically equals conviction by guilty plea or at best a very brief and summary trial in which the judge tells the lawyers what to do, tells the jury what to do, and in effect, determines the outcome of the case without much leeway. In the both the State and Federal systems, the coercive plea-bargain system and almost automatic sentencing leads to long prison terms which the judges are happy to impose and the attorneys acquiesce in advising their clients to accept.

The loser here, aside from any and each of the individual defendants, is the concept of “substantial” due process, fair play, and “justice.” So there in the selection of outcomes, the menu is limited, competition is almost non-existent and meaningless, and the lawyers are there to implement the policies which the judges approve.

But what if lawyers did not owe their ability to practice law to judges directly? What if the licensing of attorneys were controlled, say, by the Executive Branch (like the licensing of motor-vehicle operators, perhaps?)? Or what if there were no such thing as a license to discuss and interpret the law, and appear before the Courts—a position which Montana Senator Jerry O’Neil has championed his entire life, and for which Nancy Jo Grant is fighting in Florida, albeit less explicitly and directly?

The First Amendment to the United States Constitution, if you think about it appears to describe the practice of law in all aspects except those directly related to religion: covering the rights to speak, assemble, and petition the government for redress of grievances. A monopoly on the exercise of First Amendment Rights is antithetical to the First Amendment’s guarantee of these freedoms, and yet such a monopoly would appear to be imposed by the “integrated bar” theory of judicial appointment and regulation of lawyers. So judges decide who gets to exercise “full” First Amendment rights, and this means, in essence, that NOBODY gets to exercise “full” First Amendment Rights. This is an intolerable situation.

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