I can practice law! Says case law! UPOL or UPL?

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Latest post 02-17-2014 5:38 PM by criminal-defense-network. 37 replies.
  • 06-07-2006 10:36 PM

    Question [=?] I can practice law! Says case law! UPOL or UPL?

    "unauthorized practice of law."

    I never am trying to pick a fight, but I find all these neet cases and I want to understand and share.

    If there is case law that backs up what you say (that states I can practice law or I don't need a licence to practice), and it hasn't been challenged in the Supreme Court, doesn't that make it law?

    When did it become Illegal to practice law? Help a friend, represent someone else, etc. in court?

    Is it Constitutional? (I love that question)


    FYI:

    NAACP v. Button, 371 U.S. 415); United Mineworkers of America v. Gibbs, 383 U.S. 715; and Johnson v. Avery, 89 S. Ct. 747 (1969) Members of groups who are competent nonlawyers can assist other members of the group achieve the goals of the group in court without being charged with "unauthorized practice of law."

    I_VOTE_NOT_GUILTY
  • 06-08-2006 12:10 AM In reply to

    Feedback [*=*] re: I can practice law! Says case law! UPOL or UPL?

    I did not look at the other cases, by Avery deals with the right of “jailhouse” lawyers, as follows . . . .

    In Avery, Petitioner assisted other inmates in the federal prison to prepare and file petitions for post-conviction relief, such as petitions for wits of habeas corpus. Petitioner was disciplined for such conduct because it violated a prison rule that specifically prohibited petitioner and other prisoners from helping other inmates to prepare writs and legal matters. In his challenge to the discipline imposed, a federal trial court held that the rule was invalid on the ground that it impeded prisoners' rights, particularly illiterate prisoners, to seek post-conviction relief. The appellate court reversed the judgment. On certiorari, the Court rejected the appellate court's finding that the State's interest in maintaining prison discipline and limiting the practice of law to attorneys justified whatever burden the rule placed on prisoners' access to federal habeas corpus. After emphasizing the importance of habeas corpus relief in the criminal justice system, the Court ruled that, without providing some alternative means that permitted prisoners to seek post-conviction relief, the rule was unenforceable and invalid because it impermissibly restricted prisoners' right to seek such relief.

    The Court reversed and held that the prison rule impermissibly restricted prisoners' right to prepare and file petitions for post-conviction relief. In order to validly enforce the rule, the prison was required to formulate and administer some alternative means by which prisoners could seek post-conviction relief.

    Thus, unless you want to go to prison first just so you can assist other inmates, practicing law without a license is not a good idea.

  • 06-08-2006 1:02 AM In reply to

    'Solicitation' & 'Members of groups'

    NAACP v Button didn't actually address the practice of law, but the solicitation of legal business by lawyers. The Court held that the NAACP was not violating a Virginia law designed to prevent lawyers from advertising their services when it contacted an aggrieved individual in order to offer to press a legal action on his behalf.

    In United Mineworkers, the court held that members of the Union who helped other members in an effort to attain their "common goals" were in effect acting "pro per", not simply on behalf of the members they were helping, and that therefore they were not "Practicing Law".

    In other words, the succesfull argument was not that it was legal for a non-lawyer to practice law, but that what was being done was not practicing law at all.

    Richard
  • 06-08-2006 6:16 AM In reply to

    • genaw
    • Not Ranked
    • Joined on 05-21-2006
    • Posts 20

    Question [=?] re: I can practice law! Says case law! UPOL or UPL?

    O.K...maybe Im being stupid here and not understanding, so why then, can people represent themselves in a trial, such as Moussaoui(? on spelling). Is it because he wasnt "practicing, as in representing anyone else, only himself?
  • 06-08-2006 10:18 AM In reply to

    • DOCAR
      Lawyer
    • Top 25 Contributor
    • Joined on 12-09-2000
    • NV
    • Posts 5,167

    Feedback [*=*] re: I can practice law! Says case law! UPOL or UPL?

    yes. You have the right, whether smart or not, to represent yourself.
  • 06-08-2006 11:42 AM In reply to

    Feedback [*=*] re: I can practice law! Says case law! UPOL or UPL?

    >>>>O.K...maybe Im being stupid here and not understanding,

    Probalby more the latter than the former! I subscribe to the theory that even if you ask what might be a stupid questetion, you will only look like a fool for a few minutes. However, if you do not ask the question, you'll remain a fool forever!

    >>>>why then, can people represent themselves in a trial, such as Moussaoui(? on spelling). Is it because he wasnt "practicing, as in representing anyone else, only himself?

    Yes. Practicing law means to give another person legal advice.

  • 06-08-2006 10:06 PM In reply to

    Feedback [*=*] Attorneys have licenses . . .

    Each state can regulate the practice of law because of such licenses. Same thing for medicine, hunting and fishing, etc.

    You have a constitutional right to represent yourself in court. Courts couldn't function any other way.
  • 06-09-2006 7:54 AM In reply to

    Feedback [*=*] common right to practice . . . ?


    Sherar v. Cullen, 481 F. 2d 946 (1973)
    "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights."

    Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239.
    "The practice of law cannot be licensed by any state/State."

    Sims v. Aherns, 271 SW 720 (1925)
    "The practice of law is an occupation of common right."
    ***
    Those first three mean anything, anymore? If so, why do i need a licence?

    Miller v. U.S., 230 F. 2d. 486, 490; 42
    "There can be no sanction or penalty imposed upon one, because of his exercise of constitutional rights."

    Murdock v. Pennsylvania, 319 U.S. 105
    "No state shall convert a liberty into a license, and charge a fee therefore."

    Shuttlesworth v. City of Birmingham, Alabama, 373 U.S. 262
    "If the State converts a right (liberty) into a privilege, the citizen can ignore the license and fee and engage in the right (liberty) with impunity."
    United States Constitution, First Amendment
    Right to Petition; Freedom of Association.

    Brotherhood of Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1; v. Wainwright, 372 U.S. 335; Argersinger v. Hamlin, Sheriff 407 U.S. 425
    Litigants can be assisted by unlicensed laymen during judicial proceedings.

    Haines v. Kerner, 404 U.S. 519 (1972)
    "Allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient"... "which we hold to less stringent standards than formal pleadings drafted by lawyers."

    And the U.S Supreme court said so!


    CIVIL: (I Think)

    Elmore v. McCammon (1986) 640 F. Supp. 905
    "... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws."

    Federal Rules of Civil Procedures, Rule 17, 28 USCA "Next Friend"
    A next friend is a person who represents someone who is unable to tend to his or her own interest.

    FYI

    I_VOTE_NOT_GUILTY


  • 06-09-2006 9:07 AM In reply to

    Question [=?] re: common right to practice . . . ?

    Just curious . . .

    Is this independent legal research that you are conducting or is there a website that is advancing this in support of the proposition that you do not need a license to practice law?
  • 06-09-2006 10:35 AM In reply to

    Feedback [*=*] re: common right to practice . . . ?

    As I said in the other thread you started on judicial oaths, you need to be very skeptical of anti-government web sites, as they often have incorrect or misleading information on them. It appears you are getting information on practice of law from one (or more) of these sites, and they are similarly flawed.

    “Those first three mean anything, anymore? If so, why do i need a licence?”

    Because none of them stand for the proposition that you have a constitutional right to practice law or that state laws on UPL or licensing of lawyers are illegal. Simply stated, none of these cases support your argument. This is a common problem on anti-government web sites. They take small snippets from a decision that sound good and then use that snippet out of context to support the argument they want to make. Let's look at each of those three cases.

    “Sherar v. Cullen, 481 F. 2d 946 (1973)
    ‘There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights.’”

    That general proposition is correct. However, there is no case law saying that the practice of law is a constitutional right. This case you have cited certainly has nothing to do with the practice of law. An ex-IRS agent was suing the government for reinstatement and back pay because he claimed he was wrongfully discharged. Since this case has nothing to do with UPL or licensing of lawyers it simply does not apply at all to the issue you are raising.

    “Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239.
    ‘The practice of law cannot be licensed by any state/State.’”

    This case is still good law, but it does not say, as you have stated, that states cannot require licenses for the practice of law. In this case, an applicant for the bar was denied because he had been a member of the Communist Party. The Supreme Court held that his membership in the Communist Party was not a sufficient basis to deny him a license. What the case actually says is this:

    “A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. FN5 Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623. Cf. Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. And see Ex parte Secombe, 19 How. 9, 13, 15 L.Ed. 565. A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590; Cummings v. State of Missouri, 4 Wall. 277, 319-320, 18 L.Ed. 356. Cf. Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940. Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church. Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.”

    You will notice that the court says that a state may require “high standards” for admission to the bar, an acknowledgement by the Court that states may indeed license lawyers and regulate the practice of law. In other words, not only does this case not support your argument, it actually works against you.

    “Sims v. Aherns, 271 SW 720 (1925)
    ‘The practice of law is an occupation of common right.’”

    I found no such statement in this case. Indeed, none of the four litigants in this case were lawyers nor did this case have anything to do with the practice of law or licensing of lawyers. This case is state tax case in which the state supreme court of Arkansas held, on rehearing, that the state income tax did not violate the state constitution prohibition(that existed at the time, I do not know if it still does) against taxing common occupations. As a result, this case also simply does not apply to the argument you are making on the practice of law, and to suggest that the case even holds that the practice of law is an occupation of “common right” (whatever that may mean) is misleading at best as the court made no such holding in this case.

    As I said, you have to be very wary of what you read on anti-government web sites. Many of their arguments are flawed or misstatements of the law, as these three cases demonstrate. None of them actually supports the idea that there is a constitutional right for you to practice law or that a state may not regulate and license the practice of law.

    I won’t go into the other cases you cited here, as this post is long already. Suffice to say, though, they don’t offer much suupport for your argument either. Again, the cases do not stand for what you think they do.
  • 06-09-2006 2:08 PM In reply to

    Disagree [)*(] re: common right to practice . . . ?

    All of which says you can represent yourself. Unwise, but quite legal.

    What you cannot do is represent another person. And every definition of "next friend" that I have every seen defines it as a person (often a relative) appointed by the court to act on their behalf - NOT someone to be their lawyer.
  • 06-09-2006 2:41 PM In reply to

    Feedback [*=*] Flat Earth Theory and the Holocaust . . .

    Others, with more patience than myself, have indicated how the info you are getting is bad. Constitutionalists often do not know how to read case law, and twist it to their own ends. I challenge you to research the word "dicta."

    You might not get a lot of argument/discussion from people because you are advancing theories that have been categorically rejected by the courts. It's like arguing the Earth is flat. We'll just say, "Nope" and leave it at that.

    What you need to do first with the cites you find is research them, to see if they are correct or not. You're just accepting that they are correct, when they are not.
  • 06-09-2006 3:28 PM In reply to

    Agree [=|=] re: Flat Earth Theory and the Holocaust . . .

    Ford, you have more patience with this nonsense than I do. I spent 6 months last year trying to undo the damage a constitutionalist inflicted on himself because he just refused to get it. He went to trial pro per, arguing everything from Admiralty and Maritime law to anything else he picked up on those ridiculous websites that sounded good...His defense was that not only was what he did legal (which it wasn't) but he wasn't a citizen of the Republic of CA and therefore the laws of our state didn't apply to him anyway, yada, yada, yada....The court was infuriated with him for various reasons and he came within a hair of doing 4 years in prison.
  • 06-09-2006 5:40 PM In reply to

    Agree [=|=] re: Flat Earth Theory and the Holocaust . . .

    Client: But the flag has a golden fringe . . .

    Me: It's not an admiralty court.

    Client: But the flag has a golden fringe . . .

    Me: It's not an admiralty court.

    Client: But the flag has a golden fringe . . .

    Me: It's not an admiralty court.

    Appeal from driving without a license conviction. Sovereign THIS, buddy...
  • 06-09-2006 6:35 PM In reply to

    Ok [+0+] re: Flat Earth Theory and the Holocaust . . .

    HA! Next time just tell them that the fringe is appropriate for parades and with the number of defendants being dealt with today, it qualifies as a parade. That's what I told the last guy and it shut him up for a change. LOL!! One of the biggest problems with my guy was with that every judge, DA and PD that he took exception to prior to the trial (which was just about all of them), he filed a bogus UCC-1 against them after sending them a letter demanding $20 million for damages...made him REAL popular. You would not believe the mess he made...no, on second thought, you've had them so you probably would. His case is now on appeal and with my luck the appellate attorney will win the darn thing and I'll end up having to try the case.
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