Here is how you can practice law.

Even though I can recall my schooling at the College of William and Mary over 250 years ago as well as my law practice, I have not studied law in this life. Also, I have never taken a bar examination so I can't practice law in any State or local court (including Virginia) or give advice to people bearing cases in those courts.

The Federal Courts are a totally different matter. A person 200 years ago did not need to pass the bar of any state nor did they need to have studied law to practice in a Federal Court. They needed to have a basic knowledge of the laws but they did not need to know the penalties or protocol. Oh yes, they also had to know how to speak English.

The judges just asked a few questions before the trial (or in chambers) to determine if the person knew the laws that were involved. Judges would often tell inept pretenders, even in court, that they did not know the laws and could not defend the person adequately.

The judge would make those men give the money back to the person they were defending and then tell them not to come back to his court for a period of time (often two years). The lawyers had to give the money back right then and there, or before they made it to the courtroom door the judge would have them arrested for fraud. One man tried to leave with the money and when the bailiff drew down on him the judge yelled 'shoot him if you want'. The man froze mid step and fell right over on his face but he would not move.

They would jail these men pending a trial for fraud by another judge. It was a pretty foregone conclusion, no matter who they used as an attorney, what the outcome of the trial was going to be. They usually got five years if they were attempting a real fraud and were not just naive fools who were told to go (back) to law school.

I told a local Flagstaff attorney about this sad turn of events and she replied in the last 200 years, while I was dead, the country had passed such laws and prevented anyone from practicing law that had not passed the bar even in the Federal Courts.

This is unconstitutional for three reasons.

The first reason it is unconstitutional: Is based on the fact that the Federal court system exists to dispense justice uniformly And that uniformity must exist from state to state. How can it be uniform if the requirements change from state to state?

The states cannot regulate Federal functions for this very reason. Whenever the Federal courts are influenced by the states it defeats entirely the purpose of the Federal Court system. By deciding who can practice law in the Federal Courts the state bar is defeating the primary purpose of the Federal Court system.

Specifically attorneys passed by a state bar bring the force of that state laws to bear within the Federal Courts in that state.

The federal courts were usually seen to be a democracy in the middle of a 'state rabble' and 200 years ago they were considered the same as an American embassy in a foreign country. (Statehood is actually a treaty between a nation and a territory so it's appropriate analogy but then it is not an analogy if it is real.)

There is a 'subsection' to this and is not actually separate from it. The state Bars are a recent invention. Virginia's bar was established in 1938 and as we all know it was one of the original thirteen states.

There is a lack of uniformity in the state bar testing so attorneys show various degrees of understanding and proficiency. That means there are different qualifications in the Federal courts in each state. Again that cannot create a uniform dispensing of justice.

They are trying to change it with some standards.*

The second reason it is unconstitutional is based on precedence. There were quite a few men who practiced in the beginning years of the United States who were not lawyers by trade and often they were better than most lawyers.

All that was needed was a minimal knowledge of the US laws and the ability to speak English.

It was never the intent of the U. S. Government to limit who could practice law in the Federal Courts. Many were not attorneys by trade or training.

Many of these were Banisters from England who practiced law in the US Federal Courts (until right before the War of 1812 when they tried to play some trick on our land defenses but I have forgotten what it was about. I think it involved claiming title to some needed property that provided the only land access to one of our main forts but I can't recall which one.). The Barristers were better than 90% of American lawyers since the US laws were based on mostly English laws (mainly of the 1600's since they were considered by us as being more fair than the later one). The Barristers can be easily located in court records by an abbreviation next to their names though I forgot the symbol or letters that were used.

There were many others. Today I can think of numerous professional people who could do well in the Federal Court system who are not now practicing attorneys.**

The third reason it is unconstitutional. The US was formed on the basis of there being a single class society. The regulation of those who could and who could not practice law would have created a two class system in the Federal Courts. That would have been blazingly at odds with the entire purpose of the United States.

You have to have been in an English court in the 1700's to really appreciate this statement. First the Barristers's were an exclusive club, walking around in their white powdered wigs, white high heel shoes, large cuffs that prevented them even writing. Along with the rest of their pompous clothing they looked like 'French dandy's' but acted worse.

In England, Barristers are not trained at a University as in the States, but attend one of the four Inns of the Court, all in London. There are Grays Inn, Lincoln Inn, Inner Temple Inn, and Middle Temple Inn. Solicitors there are trained under a form of apprenticeship and do legal work but are not allowed to practice before the courts of England. This has been the custom for 800 years.

It was a very exclusive club that we decided not to include in our legal system. (It look's like our attempt to keep it non exclusive is not working that well.)

When our system was compared side by side with the English system it stood in stark contrast and showed our system in the most favorable light that you could imagine.

Here is an example of a lawyer who never attended a day of law school in his life: There was a wealthy man who received a liberal arts degree at the Dickenson College (It had no law classes at that time and it was another 35 years before they got a law 'department') who was named Roger Taney. He trained as a classical musician but his life of leisure bored him so on a whim he decided to become a lawyer, then he became the Secretary of State and then the Chief Justice of the Supreme Court and he never took a law class in his entire life.

I often wondered who that little buzzard was who followed me to the different courts taking notes.*** And though it may seem incredible for you to believe I never did want to go up against him in court. The other side often hired him in secret and snuck him in for the cross examination when they were sure that a certain witness had showed up (usually my client). He would be friendly and ask a few questions but then when he found a crack in your clients armor he immediately became a crowbar, went to work and opened them right up. Almost nobody survived that arrogant little snot.

There was John Rutledge who also was the Chief Justice of the Supreme Court for one month until the other Supreme Court Justices figured out that he did not know the Federal laws. He appeared great to President Washington (and in fact to everyone of the forefathers) who appointed him. I think someone from England sent letters stating that he had never attended (or only briefly) London law school at Middle Temple as he claimed to have graduated from. When the Senate confronted him he apparently shut up completely and would not say anything at all. He 'took the fifth amendment' before that phrase was coined and this is how he refused to incriminate himself. He was not going to say anything to avoid fraud or perjury charges. I wonder if the questioning is still in the records as it might be of interest to law students. Besides the blank spaces in the records some thought he should be approved. Since the lie was what we call a white lie and since he obviously knew the law (because he knew when to shut up) the lie was of a benefit and so many of us thought he should be approved.

George Washington was not held at fault since Rutledge had successfully conned half the forefathers including all the lawyers as well as yours truly. He had done so much to form the United States that it made me very sad when he was caught. He was a good friend and a great patriot who stood up there with all the other forefathers until this happened. As a cover up so that he would not lose all his reputation the rumors were released that he had been caught in a 'dalliance' with a young man but the rumors soon got changed to young woman.

*Uniformity in validating a person's skill at the Federal level of practice is being attempted by the recent addition (1931) of the Multistate Bar Examination to state bar exams. However, it is not used in all the states, it's not given as a separate test and it is not weighed the same in each of the states that it is given so there goes the uniformity. There is no true uniformity anywhere in this system so why are they pretending the Federal Courts is uniform?

Us forefathers who formed this union never pretended that there was any uniformity in legal representation so no one would ever take that as a given. And that was the understanding. You should never assume it or you can end at the wrong end of a rope or as George Washington said, 'You never know when a good lawyer is going to turn up in court drunk and it's lible to happen only when he is defending your case.' It happened to George at least a couple of times.

**For cases in civil court involving trade the best attorney was always a shipper. Two hundred years ago the best was man who had worked in the industry as a shipping clerk and who had managing contracts for 25 years. He knew the contract laws in 14 countries (five in Italy). He knew every word commonly used in contracts in their native language and he knew all the definitions as well as the nuances of the words. Nobody wanted to go up against him. I mean nobody won against him and there were probably over 110 cases he handled during a five year period. His wife was really a key in court and they were the best team I ever saw. They had a great loving relationship.

In criminal cases I can't think of any group that would be better than Special Agents of the FBI. They know the Federal laws, courts and can adhere to the facts better than any other group. They are also at ease in any court room. Nobody will be able to slip anything by them, especially if they have a few years under their belt as special agents. If they know good interrogation procedures then they will be great at cross examinations. They will have the edge on most law school graduates. (Attorney's won't have to worry about them taking much food out of their mouths since they they would constitute less than two percent of the practicing attorneys even if every single FBI agent quit and became a lawyer.) The next most able group would be agents of the DEA, Secret Service, Fish and Game, etc.

Our Sheriff in Coconino County, Arizona has a great reputation. He may not know the Federal laws and the court system as well though. Still he could probably do a better job of defending an innocent person who is falsely accused of a crime than anyone else in the county. (In case you missed it I used a double qualifier. If you ask the best law enforcement personnel to help defend you then you better be an innocent person. I mean innocent of everything and not just the crime you are accused of.)

It seems pretty logical that this would produce more lawful adherence to the spirit of the law. There would not as many unscrupulous attorney's trying to use unfair 'word combinations' also known as loopholes.

***This was a common .practice then. I had done the same thing when I was learning the trade by watching one of the best criminal defense attorneys for 1 1/2 years. He also was not an attorney by formal education but was a minister on Sundays who brought a great intelligence as well as an innate understanding of right and wrong in to the courts during the rest of the week. (He stayed in the local courts near his congregation. It may have been in Delaware.) Those attributes were often combined with a sprinkling of hell fire and damnation whenever he could use it to the advantage of his many clients.

I'd love to see ministers in courts acting as attorneys. I wonder if we could get them back again.

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2005 John Pinil