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
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.
was established in 1938 and as we all know it was one of the original
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
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
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.
© 2005 John