What is the practice of law? Is there any federal law restricting pro se litigants from helping each other?


“Neither statutory nor judicial definitions offer clear guidelines as to what constitutes the practice of law or the unauthorized practice of law. All too frequently, the definitions are so broad as to be meaningless and amount to little more than the statement that “the practice of law” is merely whatever lawyers do or are traditionally understood to do. The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons.”

Comment 2 to Rule Texas Rule 5.05 “Texas Legal Ethics”: http://www.law.cornell.edu/ethics/tx/narr/TX_NARR_5.HTM

Compare and consider Nancy Grant’s story (previously described  and featured on this Blog): at http://www.caught.net/prose/upl.htm#grant
but also generally  http://www.caught.net/prose/upl.htm and especially:  http://www.caught.net/prose/upl.htm#case

For me, from my lifetime perspective, and experience with others, the “practice of law” consists of “thinking, talking, and writing about the law” on a regular basis whether you are coming at it from an anthropological, behavioral, Chomskyite, criminological, cultural, dialectic, educational, evolutionary, financial, geographic, hermeneutic, historical, ideological, jurisprudential, Keynesian-economic, Kinseyan sexual studies, linguistic, Malthusian, Marxist, materialistic, morally relativistic, mortgage-finance, mystical, normative, nomological, ordinary daily experiential, personal,  philophical, quantum-mechanical, quasi-intellectual/quasi-pop cultural, radical republican, real-estate-related, revolutionary, royalist, sociological, teleological, theological, urban-rural continuum, vicariously curious, Weberian, world-order, xenophobic, or zoological perspective (or any other alphabet-soup of adjectives).

In daily life, the “practice of law” seems to involve certain very private activities which may be easily shared, either privately or publicly:

(1) the study of law, (2) the sharing of one individual’s study of the law with another, (3) the development of legal theories to apply to practical situations, (4) the utilization of legal knowledge and theory in actual, live controversies in actual, live courts, (5) the dialogue concerning the law between (a) interested parties, (b) disinterested but educated citizens, and (c) the courts.  It has been for many years, and continues to be, my position that any attempt to impose a state monopoly on the exercise of fundamental rights is a violation of the First Amendment, as applied to the States by the Fourteenth, and that to claim “Parker Doctrine” exemption for any range of human activities as broadly and indeed vaguely and imprecisely defined as the “practice of law” is itself an infringement on the First, Fifth, and Ninth Amendments.

In Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) the Supreme Court generally approved the practice of “jailhouse lawyers” or “inmate writ preparers.”  Johnson v. Avery 393 US 483 89 SCt 747 21 LEd2d 718 (1969).  It is incomprehensible why the logic used to approve mutual assistance for legal research and drafting among inmates would not allow unlicensed, untrained lay persons outside of prison walls to help each other also.   The “traditional, closed-shop attitude is clearly out of place in the modern world where claims pile high and much of the work of tracing and pursuing them requires the patience and wisdom of a layman rather than the legal skills of a member of the bar.”  Justice William O. Douglas, concurring, 383 U.S. at 492.  “If poverty lawyers are overworked, some of the work can be delegated to sub-professionals.”  Another way of analyzing this is that where there is a right of some to receive assistance, there must be the right of others to provide it.  A person with a 100% knowledge of the law probably does not exist, in any law firm or court anywhere, and if such a person exists, he is probably God-like and generally inaccessible.  Most lawyers probably have what could be described as a 20-30% knowledge of the law, and the ability to research and learn more in any specific circumstances.  But a person with a 10-15% knowledge of the law can almost certainly provide assistance to a person with 0-5% knowledge of the law, and there is simply no reason why such relationships should not be officially allowed to exist, since common sense tells us that people of good will do indeed help each other without asking anyone else’s permission.  Nor should the government be in the business of regulating such mutual assistance under the First Amendment’s “freedom to peaceably assemble” and “freedom to petition for redress of grievances” among other rights, including the residual “unenumerated” rights of the people enshrined in the Ninth Amendment.

So, at most, how much of “the practice of law” can or should be licensed?  The Supreme Court has often held that no fundamental right can ever be constrained by a license, or “prior restraint” on what can or cannot be said or done, with regard to the exercise of any fundamental right.  Freedom of Speech, Freedom of the Press, Freedom of Assembly, and Freedom to Petition for Redress of Grievances are an inventory of Fundamental rights commonly thought of as “First Amendment” rights.  What part of “practice of law” is covered under the First Amendment?  I submit that 100% of the First Amendment is so covered.

I continue to receive hatemail from stupid people paid to act stupid concerning exactly this point, and I want to quote an example I received on July 20, 2010:

“Hi Charles. Thanks for the update. As always Charles Lincoln III dosier forwarded to Larry Rothman at Larry Rothman and Associates along with a cover letter explaining who is really writing Renada’s filings. Of course in this case I’m pretty sure he (or at least his clients) are well aware of who is really trying to practice law without a licence. Can I just say it is great that you love to write so much into your filings. When people are succinct it can be difficult to identify the true author of filings in different jurisdictions. But of course with you Charles there is no such problem. One particularly easy one (of many) was numbered paragraph 3. Yes Charles you’ve used that before in some of Orly’s filings. I’m not telling you where though but of course I’ve told Mr Rothman and provided him with all the examples that us politijabbers have thus far uncovered. Somehow I think the honorable David Carter is probably going to remember Orly Taitz and maybe even your role in the rubbish brought to his Court Room previously. Even if he doesn’t I’m pretty sure with the help of our dossier that Mr Rothman will be refreshing his memory. Best of luck winning this one loser.”

The signature on this spam was “Mary Loo”—and oh I’m SO SURE that’s her real name!

It’s good to know that even the most evil, low-down, dirty dogs among us still have some friends who’re willing to help them, isn’t it?  The author of this curious piece of terroristic prose goes by the name the British give to their private sanitary facilities, but his or her true name is quite unknown, to me anyhow.  I feel great pity for him/her on the whole, that s/he has nothing better to do in life than to assist the scum of the earth whom Renada Nadine March and I are fighting for our very right to live and breathe with dignity.

Of course, the first question is: who is so concerned with assisting a soulless monster like Rothman to defend an inhuman predator like Silverstein when such scum of the earth are praying on essentially defenseless single women (a mother and daughter) among many others?  Renada and I have been working together since October and I strongly hope and expect we will work together for a lot longer.  Who would care about our alliance attempting to hold onto property in the environment of this modern mortgage crisis?

Well, it would be, I suppose, one of those who despicable creatures who profit and make their livelihood from the constitutionally illegitimate monopoly on the practice of law, i.e., a licensed attorney, one of those whose only claim to legal ability is conformity with chain-gang operating judges.  Second, it would have to be a person who agrees with the status quo on mortgage foreclosures, who believes that the Courts SHOULD lock out all dissent and should FREEZE the law exactly where it is, which is in the pockets of certain financial industry elites and their “retinue of retainers” including licensed attorneys, who know that their sole salvation is to be soulless advocates for the Banks and the Government who are now conspiring, through the coordinate efforts of the Federal Reserve monetary system, the welfare system, and the federal income tax system, to abolish private property, to destroy the family, and to turn the bourgeois state into a “dictatorship of the proletariat” operated by the elite-intelligentsia whom Marx-Lenin-Stalin-and-Mao always envisioned would be sitting at the top of the “classless” social pyramid.

I want to make things very easy for Mrs. British-Slang-for-Potty as she tries to assist Larry Rothman and Steven D. Silverstein: OF COURSE I work closely with Renada Nadine March, just as I have worked closely together with many pro se litigants and attorneys throughout the years.  I believe in absolute freedom of association and do not support the existence of titles of nobility (such as “esquire”) as pre-requisites to providing advice or counsel in the law.

I recognize that there are state laws regulating such matters although they are of extremely dubious constitutionality, as I have argued on many occasions in many cases from Texas to Montana.   Among my closest friends is Montana State Senator Jerry O’Neil who has spent his entire professional life fighting the illegitimate bar monopoly.  With Jerry I worked out a corollary which someday I hope to test in litigation: The so-called “Parker-Doctrine” State-Action Exception to the Sherman and Clayton Antitrust laws stops with Footnote 4 of U.S.A. v. Carolene Products: wherever any state action tends to infringe on enumerated rights (i.e. those set forth in the Bill of Rights), the Parker-Doctrine State Action Exception does not and cannot apply under the 14th Amendment and the incorporation doctrine construing the same.

To the great credit of the Federal Courts, there is no FEDERAL doctrine of unauthorized practice of law and in fact, most Federal cases to touch on the subject hold that pro se litigants SHOULD and MUST be allowed to help each other.  I am very proud of my work with Renada Nadine March in California, just as I am proud of my work with Kathy Ann Garcia-Lawson in Florida and with Jerry O’Neil in Montana.  I am also (and even) proud of the time I spent working together with Jon Drew Roland on this topic in Texas, even though my friendship with him, which I had expected to last a lifetime, most unfortunately, passed by the wayside when, working together, we won a case much too fast and easily (in 2007) for the beneficiary’s comfort.  (Jon has since attacked me in public and I have to defend myself against him for all his lies and ongoing defamation [lawsuits have been filed] but I know that, deep down inside, he and I agree on just about everything important, especially with regard to liberating the practice of law from the “bars” against its “free exercise.”)

And to the great credit of Judge David O. Carter, Larry Rothman has already tried to raise with him the bugbear of unauthorized practice against me and Renada—and Renada tries to helps others as I have tried to help her—and Judge Carter has deemed this a state issue and refused to allow Rothman any latitude to harass us.  Of course Judge Carter avoids the hard constitutional issues whenever he can, and so on Friday July 23, 2010, Carter remanded Renada’s case to Superior Court—where Silverstein already had a hearing set for the following Monday, July 26, 2010.  Carter’s primary reason for remanding the case this time was that Fay E. March, Renada Nadine March’s mother, had filed a Motion for Leave to Intervene in the Superior Court (Unlawful Detainer) proceedings on which the Superior Court had not yet ruled.  On Monday, July 26, 2010, when the case was remanded, a Judge in Newport Beach who took over from Judge Cory Cramin after his recusal conferred and agreed (privately, in chambers) with Silverstein and denied Fay March’s Motion for Leave to Intervene, despite the fact that EVERY Complaint for Forcible Detainer names at least five “John & Jane Doe” parties.

TO ANYONE, including Mrs. British-Slang-for-Toilet (who wrote the above-quoted hatemail), I say this: YES, OH YES, I am proud to tell you that I have written a great deal for Renada Nadine March, Jerry O’Neil, Kathy Ann Garcia-Lawson, and Jon Drew Roland (and many, many others) in Federal Court.  Show me ANY law that forbids or penalizes my doing so?  Investigate me ALL you want because I believe that I have a fundamental right to stand shoulder-to-shoulder with my fellow pro se litigants in Federal Court and utilize so much of my knowledge and brain as may be useful to them.

I do not know or understand the Byzantine California Codes & Rules of Civil Procedure very well and I would greatly prefer to avoid the California Superior Courts like the plague, but I’ll do what I can to help people like Renada avoid and defeat manifest injustice.  With somewhat less trepidaiton, because the Florida Rules of Civil Procedure are simpler, more direct, and more resemble the Federal Rules, I would still prefer to avoid the Florida Circuit Courts but I have helped Kathy Ann Garcia-Lawson and everyone I can in every possible way.   Texas, actually, has some of the best and fairest rules of civil procedure, but I am, of course, banned from direct pro se litigation in the State Courts of Texas because of my activism in favor of the constitution and against the Brave New World of—also First Amendment infringing—Family Courts.   But I have not lost the rights to assign my OWN rights just yet–although I’m sure there’s a committee of freedom-stabbers or anti-Constitutional-jabbers working on it somewhere.

All the injuries I have suffered to my life, my fortune, and my sacred honor from Judges Michael Jergins, James Clawson, and Walter Smith are wounds I bear with pride: they are my “red badges of courage” which I will wear to the grave knowing that I fight a worthy fight: for the right of all citizens of a free society to analyze the law, share their analytical insights with others, subject not to licensing but to the free marketplace of ideas, to speak concerning all grievances and other issues of a legal and/or political nature, to ask what is the difference between law and politics: where is the boundary between them?  and for all those with a 10% knowledge of the law to assist those with a 5% knowledge of the law.  Mutual assistance or “symbiosis” should be at the foundation of civilized society.

Yet however much people who like to stab patriots and jabber with each other about politics on the web dream of suppressing the human soul and all vestiges of freedom, in this dawning era of the elite-dominated and financial-industry-controlled dictatorship of the proletariat in America, I think we who love freedom and cling to every last remnant we have will ultimately prevail.

We will ultimately wipe all state attempts to monopolize fundamental rights off the map, and we will restore to each individual a measure of freedom and dignity that will revitalize our nation, regenerate initiative and innovation, and will wipe socialism from the map in all forms except that advocated by Jesus Christ: namely that we, each of us, love one another and care for each other with food, clothing, and housing, and that we do unto others only as we would wish done unto ourselves.

Freedom of Choice for Individuals will lead to Maximizing those GOOD choices of charity and mutual assistance on which a moral society is and must be build.  But socialism, by coercing the morality of sharing, is not one iota more effective than fundamentalist religious insistence on chastity before marriage.   In fact, socialism is worse, because redistribution of wealth for purposes of welfare is theft, whereas other forms of religious coercion reflect merely self-righteously obnoxious “busybody” arrogance.

Every individual must be free to determine and govern his own life, liberty, and the pursuit of happiness, and this cannot be done where education in, knowledge of, and ability to speak out or advise others concerning the “law” adopted in a democratic society is monopolistically limited to certain groups.  So, Mrs. British-Slang-Term-for-Toilet, I suggest you “get a life” and go try to oppress someone who might be scared of you.  You just inspire me to stand proud and tall for what I do.  And so I thank you, I thank you very much.

One response to “What is the practice of law? Is there any federal law restricting pro se litigants from helping each other?

  1. http://theempoweredparalegal.com/?tag=jerry-oneil (May 27, 2010)
    Paralegal “Fighting for Access to Justice” Wins a Battle in Montana
    I do not yet have enough information to pick sides in this controversy, but it is one of interest to the paralegal profession. Jerry O’Neil is an “independent” paralegal in Montana. Unfortunately none of the stories I’ve read so far state what his credentials are for claiming to be a paralegal, much less an “independent” one. As previously discussed in this blog, there technically can be no such thing as an independent paralegal since every generally accepted definition of paralegal in the United States requires that the paralegal be supervised by an attorney. That technicality aside, it would be good to know O’Neil’s qualification to call himself a paralegal, supervised or not supervised.

    That is not, however, what brings Mr. O’Neil’s story to this blog today. Rather it is the fact that the Montana Attorney General’s Office has withdrawn a complaint against O’Neil that argued phone book advertising by paralegal Jerry O’Neil of Columbia Falls deceived people about his practice. The ad was in the lawyers section of the Yellow Pages identify him as an independent paralegal providing low cost divorce services. He was charged with deceiving people under the state’s Unfair Trade and Consumer Protection Act. The problem is that the state could not identify anyone who had been deceived. District Judge Jeffrey Sherlock of Helena denied a state request for summary judgment in April. The judge gave the state until May 24 to respond to O’Neil’s request to identify someone who claimed to have been deceived by his advertising. The state did not respond and instead an assistant attorney general signed an agreement dismissing the case.

    This, it appears, is not O’Neil’s first confrontation with the Montana legal system over his independent paralegal practice. The Billings Gazetteadds this information:

    O’Neil has tangled with the state and the commission over his status as an “independent paralegal” for years.

    In 2006, the commission pursued litigation that resulted in District Judge Kim Christopher of Polson affirming an injunction that prohibited O’Neil from practicing law or advertising that he is capable of doing so.

    O’Neil said that injunction said he can act as a lay representative if authorized by administrative agencies or tribunals, can serve as an arbitrator or mediator, can act as a lobbyist or legislator and can fill in preprinted documents, such as wills. An attorney has to review some documents he prepares.

    O’Neil said most of his business involves offering mediation for divorcing parties to help them divide their property and share custody of their children.

    The Montana Supreme Court ruled last month that neither the court nor the commission it created had the authority to regulate the unauthorized practice of law, but that the Legislature has charged the executive branch with investigating and prosecuting such cases. That ruling came after the commission filed a petition seeking more than the $1,000 annual budget it had. The commission said the sparse funding meant only one case had been prosecuted since the commission started in 1976 — O’Neil’s.

    The state attorney general’s Office for Consumer Protection agreed to take on the duties of the commission.

    O’Neil’s spin on all this is not as a matter of protecting the right to practice as an independent paralegal, UPL, or the like. Rather, in his own press release he says it is an access to justice issue:

    O’Neil is also asking the Ninth Circuit Court of Appeals to increase the allowable scope of para-professionals’ abilities to help the public access their judicial system. Defendants in that case are the Montana State Bar Association and the Montana Supreme Court Commission on Unauthorized Practice, which the Montana Supreme Court recently found to be operating outside of their Constitutional jurisdiction.
    O’Neil says, “This win, along with the Montana Supreme Court disbanding their Commission on Unauthorized Practice of Law, will make it easier for people of modest means to receive legal services. I am proud and grateful to have made a contribution to the public’s access to their judicial system.”

    The issues of UPL, independent paralegals, access to justice, and licensing/registration are intertwined. It is clear that paralegals (supervised or independent) can do much to solve access to justice issues. The downside is that absent licensing mandates, anyone can call themselves a paralegal. The deception, if there is any, may be in implying that one has skills, experience, or education that one does not have.

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