The facts about the Applicant are as follows :

The determinative issue is whether the fact that an Applicant lives in a bad neighborhood, has relatives who have been arrested, indicted and tried for the illegal sale of liquor constitutes sufficient grounds to deny the Applicant admission. A proposed answer is presented in the February, 1932 issue and concludes that admission should be denied on moral character grounds. Interestingly, it correlates moral character to the need for diminishing the Supply of attorneys. The proposed answer states:

There are two notable aspects to the foregoing answer. First, it is predicated on the assertion that moral character is the most important characteristic for an attorney. Second, it asserts that inheritance and environment are determinative of the moral character issue. This is notwithstanding that a person typically has absolutely no control over their inheritance or environment. The conclusion that must inescapably be reached upon review of this proposed answer, is that the "moral character" requirement is used by Bar Examiners as a "dangerous instrument" to foster prejudicial, anticompetitive notions of the legal profession. Good moral character becomes anything the Bar Examiner wants it to be. To make this point perfectly clear and in a very blunt fashion, one need only consider the diabolical nature of Adolf Hitler. Hitler believed "good moral character" consisted of exterminating Jews. Interestingly, he had substantial support in the early issues of the Bar Examiner and the incredible comments made in support of him by the NCBE will be discussed in subsequent sections herein.

The Bootlegger’s Son exemplifies detestable system wide judgment by the NCBE and ABA. It demonstrates the organization’s propensity toward using character review as an arbitrary, subjective mechanism to accomplish group organizational goals at the expense of justice. When reading contemporary Bar admission cases, the reader is encouraged to reflect back on how the Bar is attempting to build an admissions process based on the predicate of "The Bootlegger’s Son."

What makes a person an attorney? What allows them to carry a law license, represent individuals in Court and hold themselves out to the public as a lawyer? What requirements do they have to meet ? First, there are a few rudimentary basics that need to be addressed. We have two sets of governments in our nation; federal and state. Each has their own set of laws, with citizens in a state being bound both by the federal law and the law of their particular state. The United States is comprised of three branches of government which are the executive, legislative and judiciary. Each state is comprised of three similar branches.

The first and most important branch is the Legislative branch which consists of Congress in the federal government and state legislatures for the state governments. Congress is charged with enacting federal laws, and state legislatures enact state laws. State legislatures also typically have a variety of other duties and powers. Included in these other duties and powers is generally the ability to set the rules and standards for the issuance of professional licenses in the various occupations (excluding law). The second branch is the Executive which is headed by the President in the federal government, and the Governors for the state governments. The Executive supervises and directs various administrative agencies and is charged with the responsibility of seeing that the laws are administered properly. Third on the totem pole, is the Judiciary consisting of federal courts and state courts charged with resolving disputes pertaining to the law and also interpreting the law.

Members of most professions are licensed by agencies (typically, referred to as "Boards") that are under the supervision and direction of the Legislative branch of government in most states. The professions typically licensed by Legislative agencies include accounting, medicine, dentistry, architecture, and a wide host of other professions. There is one major exception. That is the practice of law. Lawyers today are rarely licensed by agencies under the direction and supervision of the State legislature. They are typically licensed by the Judiciary branch of government. The Judiciary’s power to license attorneys has only been firmly established in this nation as a phenomenon of the 20th century. Prior to the 1930s, it was a hotly contested issue, with many state legislatures successfully claiming the power. Most citizens are not aware of this and Courts typically mislead the public into believing that their power to license attorneys has been undisputed since the formation of this nation. Their misleading assertion lacks candor and is not supported by historical facts. The result of the Judiciary successfully grabbing control of the licensing power in the early 20th century is that rules, procedures and protections that apply to the licensing of every other profession are for the most part inapplicable to the licensing of lawyers. The Judicial administrative agency vested with the power to license attorneys is typically known as the Board of Bar Examiners. This book will demonstrate how within the context of the State Bar admissions process, it is an unconstitutional licensing agency unlike that of any other profession.

When I first entered law school at the age of 32, I was already a Certified Public Accountant. I was therefore somewhat familiar with the licensing process for a professional. The requirements to become a CPA were as follows. First, I needed a minimum number of accounting credit hours from college. Second, I needed two years of public accounting experience. Third, I had to pass a comprehensive examination known as the CPA exam. The CPA exam in the early 1980s when I took it, was comprised of four parts. Few individuals passed all four parts in one sitting. As I recall, the percentage that did so was about 5%. I accomplished the feat, passed all four parts in one sitting and was certified at age 24.

The CPA exam is a uniform exam, which means that whether you sit for the exam in Arizona or New Jersey, you answer the exact same questions. Although each state sets its own grading standards for passing the exam, the questions are the exact same in every state. Consequently, if you pass the exam in New Jersey, you can transfer the grades to another state, such as Arizona and obtain certification. As part of the CPA application form, you typically provide basic information detailing recent addresses you have lived at, places of employment, education and must disclose whether you have ever been convicted of a crime. For the most part, that’s about all there is to it. Once you’re certified in one state, you can use that license to easily gain reciprocity in another state. For instance in my own case, although I originally passed the exam in New Jersey, I was certified in Arizona, and then obtained reciprocity in other states just by filing the paper work and paying the necessary fees.

I was shocked to learn in law school that the process to obtain a law license was immensely more complex, and not nearly as objective. Instead of being admitted when you satisfied a clear set of definable criteria, the attorney licensing process was designed to foster denial of admission based on subjective personal feelings, beliefs and attitudes of the Bar Examiners. Applicants could be denied admission for being cavalier, glib, facetious, smart-alecky, being unable to pay debts, participating in civil suits, writing letters to express their opinions about the legal profession or a wide host of other blatantly unconstitutional grounds. Purportedly, such admission denials are designed to ensure that attorneys possess the "requisite character" needed to "protect the public" from dishonest lawyers and incompetent legal services. Essentially however, the criteria are so subjective and vague that they allow the Bar to deny admission simply based on whether they "like" the Applicant or not. This obviously creates an environment whereby qualified Applicants are regularly denied admission due to their race, appearance, attitude, or economic standing in society. Facially, the Bar does not deny admission on the basis of race, but as a matter of substance due to the subjective nature of the application process, such denials are common and the admission standards foster the opportunity. Its’ disturbing history certainly confirms the intent.

The criterion to become an attorney in most states is as follows. First, you need to graduate from an ABA accredited law school. This usually takes three years, although it can be accomplished in two and a half, as I did. There are a few states that allow an Applicant to sit for the Bar exam if they’ve graduated from a non-accredited law school, and the ABA accreditation process is certainly less than commendable. It has been subjected to justified legal attack in recent years by the U.S. Justice Department. Nevertheless, currently the normal route to licensure is to graduate from an ABA accredited law school.

Second, the Applicant needs to pass the Bar exam. Unlike the uniform CPA exam which is exactly the same from state to state, the Bar exam varies widely between the states. Only a portion of it is uniform which is known as the MBE (Multistate Bar Exam). The MBE is an objective, multiple choice examination. Most states however, also require the Applicant to take a state specific exam which is comprised of essay questions. Since the state portion consists of an essay exam which is subjectively graded, the admissions committee is able to exclude applicants based on their subjective appraisal of an Applicant’s ideas and attitudes as expressed in answers to the essay questions. Many states require lawyers who have passed the MBE in one state, to sit for the MBE exam again when applying to their state. That obviously makes no sense. Unlike the CPA Boards, the Bar Boards do not typically respect passing of the uniform MBE portion in another state, unless the Applicant has also actively engaged in the practice of law for 5 out of 7 years. Many attorneys such as myself, have never practiced law.

The third requirement is the real kicker. The Applicant must pass a so-called "moral character" review to determine if they possess the "moral character and fitness" necessary to become a lawyer (I know it seems like a contradiction in terms, based on the disrespect most Nonattorney citizens have for the "character" of lawyers). The CPA licensing process equivalent of character review generally consists of answering the question, "Have you ever been convicted of a crime?" If the Applicant truthfully answers "No," the criterion is met. If the answer is "Yes," the Applicant normally must provide all relevant details and circumstances. The Applicant may also be required to come in for an interview with the CPA Board to personally answer questions about their criminal conviction. The Applicant may then be admitted or rejected based on the nature of the crime and the explanation rendered. In any event, it is a nice, clear, bright line, articulate standard. If you’ve never been convicted of a crime, then you pass. If you have been convicted of a crime, then you may or may not be admitted depending on the case.

The State Bar’s moral character review process is immensely more complex. There is no clear bright line, objective standard. It is wholly subjective in nature and encompasses a wide range of vague questions. The answers can be interpreted by the Admissions committee in any manner they please. Essentially, as a matter of substance and pragmatism, they can use the answers to exclude Applicants based on race, appearance, attitude, economic standing or any other criteria they choose. The questions are intentionally designed to be so comprehensive and detailed, that it is virtually impossible to provide complete and accurate answers. Essentially, the questions are designed to promote immaterial errors, at which point the Admissions committee gains the power to falsely assert the Applicant lied on the application. Such a finding in and of itself constitutes grounds for denial of admission.

The most vulnerable point of logic facing the State Bar Boards of Examiners is that if indeed the character questions are designed to ensure moral character and protect the public as the Bars ostensibly assert, rather than foster the legal profession’s anticompetitive, economic interests and prejudicial attitudes, then why don’t licensed attorneys have to answer the same questions on a periodic basis? Currently, once you pass the admissions hurdle for a state, you never have to provide that state with comprehensive character information again.

Obviously, a person’s current character can not be assessed as "moral" based solely on answers to character questions which are based on events that are five, ten or twenty years remote in time. If the character questions are essential to protecting the public, then all licensed attorneys and judges should be required to answer the questions on a regular and periodic basis. To do otherwise, results in the Nonattorney Bar Applicant being held to a higher standard of moral character compared to licensed attorneys and Judges.

This violation of the Equal Protection Clause to the U. S. Constitution makes the State Bar Boards of Examiners particularly vulnerable to attack and exposes the frailty of their position. Put simply, the average Nonattorney citizen recognizes that is unjust to hold licensed attorneys purportedly subject to the ethical rules of conduct, to a lower standard of moral character assessment than a Nonattorney Bar Applicant. The primary focus of this book is on the character review portion of the attorney licensing process, since that is the area where the Applicant is exposed to the most subjective, prejudicial, and arbitrary nature of the process. Essentially, at the whim and mercy of his future competitors.

So how did this irrational nightmare begin? During the Revolutionary War? The early 1800s? The Civil War? The late 1800s? Certainly, one would not think it was a product of the 20th century, but that is precisely the case. The modern State Bar Admissions’ process is a product of the Depression era and the ABA's (American Bar Association) political rise in the early 20^th century to establishing control over the Judiciary branch of government. What the ABA and its’ child organization the NCBE (National Conference of Bar Examiners) did, was capitalize on the economic weakness of the Nonattorney general public at their most vulnerable period of time (the Depression) to establish the power of the legal monopoly. When the Depression came, the general public was economically helpless. People just wanted to get food on their table and housing for their family. Their vulnerability could be capitalized on by the ABA. Bar organizations guided by the NCBE in the 1930s, began severely restricting the admissions process, continuously making it more and more difficult. The admissions process as we know it today, is a product of the Depression. A time when lawyers like all others were experiencing financial difficulties and were willing to implement desperate measures to better their economic position at the expense of Nonattorneys. At the same time they restricted Bar admission standards, they widened the scope of what constitutes "legal services" by enacting irrational prohibitions against what is called the "unauthorized practice of law (UPL)." Their concept was simple. Expand their allocated segment of the marketplace by enacting irrational UPL prohibitions and then reduce the supply of lawyers available to service that market by enacting irrational moral character standards that allowed Bar admission to be restricted on a subjective basis. The end result after applying economic principles of supply and demand, would then obviously be a lower number of lawyers to service an expanded market with higher legal fees enjoyed by attorneys.

In early colonial times, the process of becoming a lawyer was haphazard at best and varied widely from one colony to another. The road to becoming a lawyer during those times for some great Americans was as follows. Patrick Henry’s primary source of "law school" training consisted of listening attentively to conversations of members of the Bar at Shelton’s Tavern, which he frequented regularly to drink. Purportedly, he set off to take the bar examination which was an oral exam, having studied for less than two months. Henry took his "oral exam" from George Wythe (later to become Thomas Jefferson’s tutor). Wythe had begun his legal practice under the auspices of Zachary Lewis, who was the father of Henry’s close friend John Lewis. Henry passed and Wythe became the first signator on Henry’s license. Henry then took the next portion of his "oral exam" from the esteemed John Randolph, who upon learning that Wythe had signed the license also agreed to become a signator.⁴ Thomas Jefferson became a law student at the age of nineteen studying under the private tutelage of Wythe. Perhaps the most famous U.S. Supreme Court Justice ever, John Marshall enrolled in William and Mary law school on May 1, 1780 and had his law license just a few months later. ⁵ It does not take a genius to recognize that licensure during those times was predicated most simply on who you knew, and not what you knew. That is what the legal profession has always wanted to preserve. It was inarguably a morally reprehensible start to the nation’s legal profession, but admittedly somewhat characteristic of the English tradition from which it was derived.

The rise of Jacksonian Democracy in the first part of the nineteenth century eliminated the few educational requirements that were necessary to become a lawyer and the 19th century is characterized primarily by lawyers that educated themselves or read under the tutelage of another lawyer. As late as 1900, few states even required a law degree for admission to the Bar. For those students that did attend law school, the standard course in 1850 was one year. Very few law schools required more. The famous Justice Oliver Wendel Holmes entered Harvard Law School in the fall of 1864 and received his degree in June, 1866 even though he had stopped attending the lectures. The concept of the three year law degree typically required today, was unheard of throughout the entire nineteenth century.⁶

Admission requirements to the Bar began tightening up during the last part of the nineteenth century. Between 1880 and 1920, most states adopted admission procedures including the publication of Applicant’s names, probationary admissions, recommendations by the local bar, and investigation by character committees. By 1917, three quarters of the states had centralized certification authority in Boards of Bar Examiners. It was also during the close of the nineteenth century that the American Bar Association, organized in 1878 to protect the anticompetitive interests of the legal profession, at the expense of the general public began spearheading a campaign for higher professional standards. Ostensibly, for public relations purposes this was to protect the public from the delivery of incompetent legal services. Over 100 years later, most members of society would probably agree that the purported goal, even if it were not disingenuous has certainly not been achieved.

Typically, candidates denied admission on the disingenuous ground that they were "unworthy," and "morally weak," were Immigrants, Black, Women or Jewish. In 1874, George Strong advocated more stringent admission requirements to Columbia Law School on the ground that this would:

Historical evidence irrefutably confirms that the rise of the monstrosity known as the ABA is attributable to the role of subservience the legal profession occupied throughout most of the nineteenth century. The Civil War resulted in lawyers being relegated to a negligible political force. After the Civil War, a number of cases established that the right for a person to practice a profession was precisely that ; a "Right" rather than a "Privilege." In fact, the United States Supreme Court conclusively decided the issue shortly after the war in Ex Parte Garland, 71 U.S. (Wall) 333 (1866). Cases also established that the power to license lawyers vested in the Legislature, rather than the Judiciary. New York in 1860, In re Cooper, 22 N.Y. 67 ; California in 1864, Ex parte Yale, 24 California 241; and North Carolina in 1906, re Applicants for License to Practice Law, 143 N.C. 1. Cooper was considered the leading case in the nation on the issue. Lawyers quite simply put were "on the run." Left to stand, those cases would have resulted in a legal profession with a properly diminished capacity to exploit the public in order to foster their self-serving economic interests and societal notions of "group thought." The ABA mobilized in 1878 as a political force to ensure the attorney’s stature, power and privilege within society. Their initial concern was neither the Bar admissions process or the "unauthorized practice of law." Rather instead, they had no alternative but to first wrest control of the licensing process. If they could obtain the power to license attorneys, then they could set the standards and control the market for legal services.

The ABA initiated a strategic attack plan to seize the licensing power and succeeded through a series of litigations. Their success was distinctly attributable to the fact that the individuals who decided the cases, (i.e. Judges) were attorneys themselves and willing to capitalize on the opportunity presented. Pennsylvania played a dominant role, ruling in the case, In re Splane, 123 Pa. 527 (1888) :

By 1932, Arizona (in re Bailey, 30 Ar. 407(1929)), Wisconsin (State v. Cannon, 240 N.W. 441 (1932)), South Dakota (Danforth v. Egan, 23 S.D. 43 (1909)), Illinois (People ex rel Illinois State Bar Association 342 Ill. 462 (1931)), and numerous other states had followed. The power to license attorneys was seized by the Judiciary, in cases the Judiciary itself ruled on, similar to how they seized the power to interpret law in the seminal case of Marbury v. Madison in 1803. In the process of seizing the power to license attorneys, the legal profession also attempted to neutralize the U.S. Supreme Court’s opinion in Ex Parte Garland, which had conclusively established that the ability to engage in the practice of law was a "Right," rather than a "Privilege." State Supreme Courts having secured the licensing power began falsely asserting that exercise of the power was a "Privilege," rather than a "Right." The exact same notion of "Privilege" that England had adopted and which inspired our drive for independence. The legal profession was then poised to enact prohibitions against the "unauthorized practice of law" and to irrationally restrict admission to the Bar. They did so with vigorous fever. They seized the licensing power with their own Judges. They would now use it to expand their market and reduce the number of available attorneys to service that market. The result would be higher legal fees at the general public’s expense. They would accomplish their goal by having the audacity to falsely assert they were trying to protect the public.

UPL and Bar admission restrictions were the two final objectives to raise the Judiciary above the Executive and Legislative branches of government. The Judiciary already had grabbed the power to interpret law in Marbury v. Madison. By seizing the licensing power, they would control the individuals who presented the legal arguments. They would control them by controlling their livelihood.

Essentially, the notion can be easily summarized as, "control the man’s livelihood and ability to feed his family, and you control the man." Newly enacted minimum requirements for admission to the Bar were also designed to stem the flood of those whose inadequate command of the "King’s English" had allegedly debased the profession. At the first NCBE Conference in 1933, the former Chairman of the ABA’s section on Legal Education and Admission stated:

In the 1920s the ABA’s Section of Legal Education and Admissions, began its’ quest to control admission standards. The rise of the ABA’s Bar Admission Section unsurprisingly paralleled the rise of their UPL Section (Unauthorized Practice of Law). In 1928, Pennsylvania led the way by implementing a registration system under which prospective Bar candidates would face a character investigation at the beginning of law school and when applying for admission. This illegitimate process was subsequently adopted by other states, but admirably abandoned by Pennsylvania. The character interview under the law student registration program was used to dissuade the purportedly "unworthy" from pursuing a legal career. Pennsylvania’s definition of "unworthy" was quite elastic. Those rejected in 1929 included individuals deemed "dull," "colorless," "subnormal," "shifty," "smooth," "arrogant," "conceited," and "slovenly." A substantial number of candidates reportedly lacked a "proper sense of right and wrong," others had not "moral or intellectual stamina," appreciation of "social duty," or "well-defined ideas on religion."⁹

I detract now a bit. I am currently a member of the Pennsylvania Bar. The foregoing information found in Professor Deborah Rhode’s historic article, Moral Character as a Professional Credential was published in 1985. Professor Rhode is a law professor at Stanford Law School. Her ideas in this area, as well as her concepts related to UPL (Unauthorized Practice of Law) guide my own to a large degree.10, ¹¹ She has essentially been the foremost authority, (until me) regarding these subjects. I applied for admission to the Pennsylvania Bar in 1995. At that time, Pennsylvania’s character questionnaire was the least cumbersome of all the State Bars, although it still included several unconstitutional inquiries. I know this because I requested applications from every single State Bar in the nation. The early issues of the Bar Examiner magazine from the 1930s, refer often to the "admirable" character review process of the Pennsylvania Bar. Pennsylvania was the nation’s leader in restricting Bar admissions, and then took the commendable step of diametrically reversing course. For the most part, they abandoned their irrational admission program. They went from being the most unconstitutional State Bar in the early 1930s, to perhaps the fairest in the nation currently.

I graduated from law school in 1994. During my last semester, a flyer was handed out to students indicating that law student character registration would probably be implemented for all new students. Since then, the concept has gained steam in many states. Many law schools and some State Bars began requiring law student registration again in the 1990s. This demonstrates how the legal profession’s unjust, self-interested concepts which drove the admissions process to become more stringent in the 1930s are still flourishing today at the expense of the general public.

In 1993, the ABA published a pamphlet titled, "The ABAs First Section - Assuring a Qualified Bar", by Susan K. Boyd. It discussed the early years of the Bar Admission Section. It recognized that the legal profession throughout the early 1900s was particularly concerned about the economic effect the influx of immigrants was having on the profession and seeking ways to exclude them. The ABA’s 1993 pamphlet discusses how in 1915, future ABA president Walter George Smith of Pennsylvania stated at the meeting of the Legal Education section :

The 1993 ABA pamphlet also recognized that bigotry and prejudice permeated the Bar and law school world. It acknowledged that there was egregious discrimination against African-Americans, Jews, Catholics, Immigrants and Women. The importance of the information source for these concessions is as follows. During the expansion period of the Bar Admission Section in the 1920s, 1930s, and 1940s, the ABA utilized false propaganda stressing that the reason for curtailing State Bar admissions was to protect the public. Essentially, the ABA wanted to fool the public into believing the purpose of these Sections was not to enhance the economic interests of the legal profession, but instead to protect citizens from dishonest and incompetent Nonattorneys. The publication of the 1993 pamphlet by the ABA demonstrates the ABA appears ready to concede such. Their recent "confession," supports the premise that admission restrictions were originally designed for anticompetitive purposes. They were not designed or ever used to protect the public from incompetent attorneys, as the ABA falsely led the public to believe for so many years. In order to demonstrate in today's world that the restrictions serve the primary purpose of protecting the public, the legal profession would logically need to show some intervening factor which negates the original intent. To my knowledge, no intervening factor exists.

The National Conference of Bar Examiners held its first meeting on September 16, 1931. It began publishing a magazine titled "The Bar Examiner" which is still published today. Most members of the public don’t even know these committees exist or what they have done to monopolize the delivery of legal services. The monopoly allows incompetent attorneys who support the profession’s economic interests to profit when litigants go to prison, parents lose custody of their children, families lose their property, litigants lose civil cases, etc.. The concept from the State Bar’s perspective is, "lawyers first, the public second, if at all." Here are some interesting quotes from an article titled "Attorney Fees and Costs" written by Oregon attorney, Paul Saucy, circa 1992-1994. The article was published by the Oregon State Bar in Chapter 6 of a Continuing Legal Education Manual designed to be read by Oregon attorneys. How the Oregon State Bar could be so stupid as to publish these concepts and promote such within the context of continuing education is beyond me. The Oregon State Bar manual written for Oregon attorneys reads :

In 1996, I realized that the NCBE’s magazine, "The Bar Examiner" was the cornerstone in conjunction with the ABA’s Legal Education and Bar Admissions Section, and its’ UPL committee, to the State Bar’s economic protectionism. I wanted to read prior issues of the magazine. Past issues were in law school libraries. The magazine was not however, carried by any public libraries that I looked into. I was living in New Jersey and quickly learned that to be allowed admittance into most of the law school libraries in the area, all I needed to do was present my Bar card showing that I was a licensed attorney. I did so numerous times at the Seton Hall Law Library. Each time I did it, a certain thought process went through my mind. It was simple in nature and as follows. If I were not a licensed attorney, then I would not be able to gain access to this magazine. I am constantly saddened by the thought that law schools which are in large part funded by students paying tuition with student loans guaranteed by the federal government, exclude the general public from using their facilities. So there I was, reading issues of the "Bar Examiner" dating back to the early 1930’s, spending 10 cents per sheet to photocopy virtually every single applicable article on the issue of character from 1931-1946. Crinkled old books with yellowed pages that revealed the diabolical foundation of our nation’s legal profession in the 20th century. No one in the law school library even gave me a second thought, or could have cared less about what I was researching. But I felt that I was on to the hottest find of the century.

The foregoing paragraph was intended to be the end of this short chapter, but something interesting occurred subsequently. In January, 2001 I went back to the Seton Hall Law Library to do some research. Although I was virtually certain that I had photocopied the most pertinent articles of the Bar Examiner magazine, I decided to take another look to see if I missed anything. But, they were gone. The library maintained virtually all other dated information including appellate opinions from certain states dating back to the early 1800s. The Bar Examiner magazine however, had been taken off the shelf. I went to the computer index catalog and discovered that the "Bar Examiner" had been transferred to microfiche, with one significant exception. The microfiche only included issues of the magazine going back to 1980. Everything else from the early 1930s through 1979 was apparently now unavailable. The most pertinent and incriminating articles ever written about the legal profession, by those who control the profession itself, seemed to be no longer available for research at all. Previously, to gain access to the old Bar Examiner articles, I had to be an attorney and show my Bar card. Now, it seemed that no one could gain access to them. As will be demonstrated herein, the profession's concern about those articles is well-warranted. The State Bars don't want the public to know what is in those old articles that form the foundation of the Bar admission process. But I got them. When you read Chapter 15 of this book, you will truly be shocked at what the irrational supporters of the State Bar monopoly wrote in the 1930s and 1940s.

Just a few years ago, there was a movie released called "Pleasantville." The movie is about two teenage kids living in the 1990s who are transported into a television show from the 1950s called "Pleasantville." The TV show into which they are transported depicts what is supposed to be the perfect American family in the perfect American town. Husband, wife, son, and daughter living in a town where everybody is happy all the time and everyone always gets along. When they are first transported, everyone and everything in the town is in black and white, without any colors, as one would expect in a television show from the 1950s.

The teenagers, being from the 1990s ultimately change things immensely in the town. As they teach the people of the town to develop and discover their passions, the people develop skin tones, and things around them such as flowers and automobiles develop colors. Certain people of the town however, don’t like the changes that are occurring and view the teenagers as a social threat to the "pleasant," "civil" and respectful atmosphere that previously existed, where everyone is always nice and happy. Significant friction between those citizens of passion and the ones that wish to retain the status quo, ultimately erupts into violence. It quickly becomes apparent that beneath the "civility," and "pleasantness" of those opposing any type of change, are deeply rooted feelings of hatred and ruthlessness.

The movie reminds me of how State Bars regulate the nation’s legal profession. As you read through this book, it will become readily apparent that the State Bars are continually stressing the need for civility, respect, good moral character, professionalism and honesty. They want all the lawyers to get along with each other, so that everything is "nice" and "civil." Anyone however, who questions the manner in which they proceed, is quickly, severely and ruthlessly punished. Any lawyer who zealously and bravely litigates like a true fighter is falsely deemed to be uncivil or unprofessional. Their favorite phrase for such lawyers is that they engaged in "conduct prejudicial to the administration of justice." The point is that the State Bars are wholly unconcerned about whether a lawyer fails to zealously represent a client, so long as that lawyer fosters the economic interests of the profession.

The same Judges and lawyers who insist on "civility" and "professionalism," will not hesitate to deprive a litigant of their constitutional rights thereby causing an innocent person to be put in prison. They will not hesitate to allow a guilty person go free notwithstanding the pain and anguish caused to a victim, if it furthers the economic interests of the legal profession. Their focus in every case is not on victim’s rights, defendant’s rights, women’s rights, men’s rights or children’s rights. Rather, their focus in each case is how any particular issue affects the State Bar’s power and economic interests.

Beneath the Puritan-like, inflexible State Bar disingenuous labels of "good moral character," "honesty," "civility," "professionalism," and "truthfulness," is a deep hatred, coldness, and dispassionate lack of a true concern for the quality of representation given to litigants. Essentially, the concept is to let the litigants lose their homes, children, freedom, and possessions, so long as the cohesive unity of the legal profession is maintained, by fostering an irrational definition of what constitutes professionalism," "civility" and "good moral character." It’s a State Bar Pleasantville.

There is nothing more essential to society than the rule of law. If there is no rule of law, then people do what they please. This inevitably results in rule of the strong over the weak, without regard to fairness or justice. I am an ardent and firm believer in the necessity for the rule of law. The State Bars similarly stress continuously, (for purposes of "wise publicity") the importance of the rule of law.

The place where the State Bars and myself depart, is that I believe the rule of law applies equally to those in charge of regulating the legal profession. The State Bars prefer to irrationally claim exemptions from constitutional principles of law, through a manipulative use of logic and interpretation. This I have determined to be wholly unacceptable and in fact, a violation of the rule of law itself, which reflects adversely upon the moral character of the Bar.

It will be demonstrated herein, that the Bars interpret rules hyper-strictly against Applicants, since to do so fosters State Bar economic interests. This would not be entirely objectionable if the State Bars were also subjected to hyper-strict application of the rules. What they do however, is when the issue of applying rules to their organization is presented, they assert the need for a liberality in construction of rules, since such is also to their economic advantage. Ultimately, what society is left with, are rules applied strictly to everyone except the State Bar.

It has been an unfortunate predicate throughout history that when rules are broken, they tend to be broken in favor of the strong, rather than the weak The entire concept of enacting rules in any society, in any sports game, or market, is to equalize the playing field. By having rules, everyone is supposed to know the manner in which a given event or controversy will be played or handled. By having rules within the context of litigation, the goal is to equalize the rich with the poor, the strong with the weak, those who know powerful people with those who don’t know powerful people. The intended concept is that by having rules no one should be able to gain an unfair advantage by doing things in an informal manner.

The dichotomy between liberal and strict interpretation of rules to fit self-interested goals has its basis in the related dichotomies of procedure versus substance, and rules versus standards. I present a hypothetical example for analysis. Let us presume a requirement exists to "file" a certain document within five days. That would be a rule. The rule is designed to foster the provision of "Notice" to another party in a timely manner. "Notice" therefore, would be a standard. Rules are designed to promote standards. The difficulties arise when a particular rule, due to the circumstances of a case, functions in an unjust manner. In the hope of solving such dilemmas, rules are therefore subject to interpretation.

In our foregoing example, a common interpretation might be as follows. A document must be "filed" within five days, unless a party demonstrates "reasonable cause" for missing the deadline. One problem is solved and another is created. The dilemma created is determining what constitutes "reasonable cause." Whether "reasonable cause" exists has now become the determinative factor as to whether the five day deadline should be applied. This now brings our hypothetical to the dichotomy of procedure versus substance. Procedure takes precedence over substance when a particular rule is applied in a given case, even though application of the rule may cause an unjust result. Substance takes precedence over procedure when a rule is not applied, because the result of applying the rule would be unjust. So perhaps the answer is easy, you think ? Simply apply the rule when to do so is "just." That however, creates a brand new problem. The "rule" has ceased to be a rule and has instead become a "conditional rule."

What if the rule is always applied to the weak, but the decision-makers consistently determine that "reasonable cause" exists when those who are strong do not comply with the rule? Essentially, the weak are then always subjected to the rule, but the strong are always exempted from it. In such an instance, there is no doubt that procedure takes precedence over substance with respect to the weak. Procedure does not take precedence over substance with respect to the strong. Nor for that matter, does substance take precedence over procedure with respect to the strong since the rule is being applied inequitably. The most basic standard of all, "Justice" has been violated. The strong are simply benefiting from a blanket exemption to the rule.

When this occurs, the rule that was originally designed to implement "justice," has instead become the exact tool used to cause "injustice." Originally intended to equalize the playing field, the rule has become the implement used to rig the playing field. By allowing State Bars to apply rules hyper-strictly to people other than themselves, but leniently when their own interests are at stake, the rule of law is broken. It is irrefutably a significant step towards condoning the detestable principle that the strong should rule the weak.

Judges loves cases dealing with legislative or executive power. They love to sit in judgment of another branch of government and render the final determination of the proper scope of another branch of government's power. Judges will not hesitate to hear cases dealing with murder, robbery, extortion, rape, personal injuries, defective products, environmental claims, police conduct, abortion, religion, political funding, children, education and virtually every other single category that a person can imagine. There is one glaring exception. Judges detest cases addressing the proper scope of judicial power and State Bar authority. That needs to change.

If the Judiciary is going to continue to regulate the practice of law in form, then it must begin to do so aggressively as a matter of substance, and with a keen concern for constitutional freedoms which are in fact applicable to the Judiciary just like everyone else. The power to interpret law does not carry with it a general exemption from the law. Contrary to what the hypocritical State Bars believe, when I became a member of the Pennsylvania and District of Columbia Bars, I did not check my First Amendment rights at the door.

It has now been approximately thirty years since the U.S. Supreme Court rendered its' 5-4 decisions in Baird, Stolar and Wadmond on the exact same day (those cases are discussed later herein). Those opinions read in conjunction with each other established nothing. They simply demonstrated that the Court did not know how to deal with the issue. The Court ruled in favor of the Applicants in Baird and Stolar, and in favor of the Bar in Wadmond, with Justice Potter Stewart being the swing vote in all three cases. All of the Bar admission cases that have addressed the moral character issue, including Willner, Anastaplo, Konigsberg I, Konigsberg I, and Schware focused on the First Amendment and freedom of expression. The heart and soul of the issue however, is really the Equal Protection Clause of the Fourteenth Amendment. The U. S. Supreme Court has never directly addressed that issue. And it is the weak spot. The pronest point of vulnerability. It is the Achilles Heel, so to speak, because to rule in favor of the Bar, requires the Court in a high profile case to somehow convince the general public that allowing licensed attorneys and Judges to be held a lower standard of moral conduct than Nonattorney Bar applicants is a good idea. No matter how such an opinion were written, the public will never buy into it. It is time for the U.S. Supreme Court to take a decisive stand. They must stand with the general public, or it will be clearly known that they stand with the State Bars.

I have an absolutely perfect fact set for this case, which I have spent almost a decade building. I have already passed the character review process of two Bars. I gained admission even after presenting the most derogatory information about myself and without being required to attend a personal interview. Stated simply, I outplayed the Bar admissions process. I have never been professionally disciplined and never had even one single ethical complaint of any nature ever filed against him. I am currently the most knowledgeable person in the entire nation regarding the State Bar admissions process. I have no current intention of degrading myself by actually engaging in the practice of law, and now simply seek to reform the admissions process for the purpose of improving the nation's legal profession. It's a perfect fact set by the Ultimate Backdoor Applicant. I snuck in the backdoor, and now I'm going to open the front door.

I believe the U. S. Supreme Court wants to remedy this situation, and further believe their opinions over the last two decades have been slowly setting the groundwork in place. They have been waiting however, for the right litigant with the right fact set to come along. I am that individual. I have complete faith and confidence that the U.S. Supreme Court will ultimately rule in favor of the general public on this critically important issue which affects every single other litigation in this country.

It has been approximately 70 years since the National Conference of Bar Examiners had its first meeting. The purpose for adopting irrational character standards was delineated in their magazine "The Bar Examiner." It was to enhance the economic interests of the profession, while simultaneously promoting racism. In 1957, the U. S. Supreme Court responding to the pervasive McCarthyism which still thrives in the State Bars today, recognized the danger to American values presented by the so-called "good moral character" standard and dealt a major blow to its legitimacy stating :

Konigsberg v. State Bar of California, 353 U.S. 252 (1957)

The operative phrase is "dangerous instrument." The U.S. Supreme Court was issuing a stern warning to the State Bars. The Court was making it clear that if the power given to the Bars was abused, it would be taken away. The State Bars foolishly failed to heed the warning. They did precisely and exactly what the Court warned them not to do. They used the "good moral character" standard as their fulcrum for arbitrary denial of a law license when faced with an Applicant who does not support their financial interests, or irrational political and societal beliefs. Applicants are regularly denied admission by ludicrous Bar Committees for being glib, facetious, arrogant, flippant, and a wide host of other mere personality traits on the false ground that such demonstrated they lacked "good moral character." The best evidence of the complete, total, abject failure of the "good moral character" standard however, rests in the opinions of the general public. Since the NCBE's inception the public's view of attorneys has not improved in the slightest degree. The typical Nonattorney American justifiably regards lawyers as deceptive, slimy, cheats, crooks, and scoundrels. It is by far the worst regarded profession in the nation, even though no other profession has adopted such irrational character standards. Doctors, engineers, accountants, architects, and in fact even used car salesmen are all better regarded by the general public than attorneys. No profession is viewed more contemptibly than the legal profession. That alone demonstrates the complete, total, abject failure of the so-called "good moral character" standard.

Appellate opinions consistently falsely characterize the legal profession as a "learned profession," a "time-honored profession," and a "respectable profession." They fail the State Bar's "good moral character" standard in doing so, since such false assertions fail to disclose the true nature of the profession. The legal profession has historically never been respected. At best, it is a necessary evil that society requires to function. It is often compared to prostitution and not even viewed as favorably as that also "time-honored" profession. Even those individuals such as myself, who pass the character review without the need for a personal interview are embittered by the process and resent having been required to divulge highly personal information to the State Bar. The State Bars have in fact alienated their only possible supporters. The attorneys. It's been a failure.

The reader will no doubt find this section, nothing less than shocking. The State Bar admissions process functions in reliance on a rudimentary premise which is as follows. The State Bars WANT every single Applicant to file an application that contains some false, misleading or incomplete information. You may ask, why would they desire such? What possible incentive could the State Bars have for WANTING all Applicants to submit an application containing false, misleading or incomplete information. The reason is as follows. Once the Applicant submits any false, misleading or incomplete information in response to an inquiry, the State Bar acquires the power to deny admission. The accumulation of power is what the State Bars are all about. Hypothetically, if it were even possible for an individual to submit an absolutely truthful application, and that application contained no adverse character information, the State Bar would LACK the power to deny admission. A fair, just and rational application form is therefore inimical to the State Bar goal of accumulating power. There is a strong correlation between increasing the power of State Bars to select their own members, and maximizing the probability that every single Applicant files an application containing some false, misleading or incomplete information. Once the State Bar acquires the power to deny admission, they can exercise that power by admitting Applicants who they subjectively like, and deny admission to Applicants they subjectively dislike. The power they have acquired, is a Power to Exercise Arbitrary Discretion in rendering the admissions decision.

Now the second question. How does the State Bar accomplish its goal of maximizing the probability that all Applicants submit an application containing false, misleading or incomplete information? The answer is actually simple. All the State Bar has to do is to formulate an application form that is logistically impossible for any human being to complete in an absolutely truthful manner. This is accomplished by utilization of varying State Bar techniques in drafting the application questions. The basic categories of questions used to accomplish the State Bar's goals are as follows:

A CATCH-ALL QUESTION FOR THOSE APPLICANTS NOT CAUGHT BY (1) - (4) above.

The first four question types above, which are utilized by the State Bars to accomplish their goal can be summarized as follows. Questions focusing on Time, Detail, Vagueness and Personal information. By asking questions that require the Applicant to dig deep back into their memory over a long period of years, provide extensive detail with respect to matters that are far remote in time, respond to vague inquiries and provide extensive personal information, the State Bars generally succeed in achieving the goal that Applicants submit false, misleading or incomplete information. The remaining small percentage of Applicants who are not successfully subjugated by the foregoing tactics are ultimately entrapped by the final "catch-all" question. The catch-all question makes the following type of inquiry of the Bar Applicant :

It is a question that no human being on this earth, could possibly answer truthfully, accurately, and completely. The catch-all question ensures the State Bar that every single Applicant will submit an application form containing at least some false, misleading or incomplete disclosure. The Bar admissions process is irrefutably one of the last remaining vestiges of McCarthyism in this country. The manner in which the admissions process functions is almost identical to how the congressional committees investigating communism functioned during the McCarthy era. It has been summarized as follows :

That is essentially the State Bar admissions process in a nutshell.

Imagine your spouse, son, daughter, close relative or good friend has just been arrested for a crime they did not commit. You go to visit them in jail and they ask you what to do. You ask them whether they committed the crime for which they are accused. They say "No," and you believe them. You tell them when they appear in front of the Judge, to enter a plea of "Not Guilty." As you exit the County jail in which they are being held, a state official comes up to you, hands you court documents and says you will have to appear before a Judge to defend yourself against the charge of engaging in the unauthorized practice of law for providing legal advice without a license which carries a possible prison term of two years. Sound farfetched ? It's not as much as you think.

It's called the Unauthorized Practice of Law (UPL) and generally speaking, what it means is that if you perform legal services which includes the rendering of legal advice without having a law license you are subject to applicable penalties. Those penalties vary from one state to another, as will the manner in which the State proceeds against you in its' discretion. UPL is almost always enforced on a selective rather than uniform basis, and can be characterized by an improper use of discretion. It is normally enforced only against those who represent an economic threat to the monetary earnings of lawyers. This being the case, there is no competitive advantage to the State Bar to charge an individual in the foregoing hypothetical. Notwithstanding, if UPL rules were applied uniformly, the foregoing scenario would result in charges being imposed against literally millions of caring family members and friends. It is therefore obvious that if UPL rules and laws were applied uniformly, the general public would be absolutely outraged and the prohibitions would be unsustainable. For this reason, they are the profession's weakness. Its’ Achilles Heel, since they are only sustainable when selectively enforced. This is notwithstanding the fact that States are purportedly duty bound to enforce laws on a uniform basis, regardless of who violates them.

Let's now change the hypothetical. The same basic fact set with the following change. In addition, to advising your loved one to plead Not Guilty, you tell them you will attend the arraignment (the court appearance where they enter their plea), for moral support. You sit in the back of the courtroom which is relatively empty. The Judge asks the Defendant what their plea is. The Defendant turns around to you and asks, "Is this when I say Not Guilty?" You nod your head, "Yes." Your chances of being charged with UPL have now dramatically increased.

Let's change the hypothetical again. Your family member or friend has called you because they know you are an attorney. The problem is that you are a lawyer in a neighboring State (we'll call it State #2) and the person you care about has been arrested and charged in State #1. You provide the exact same legal advice at the county jail, and the same nod of the head in the courtroom. Your chances of being charged with UPL have now increased, to the point where if the Judge informs the State Bar of what occurred, you would probably be charged with UPL. This is notwithstanding the fact that as a licensed Attorney in State #2, you supposedly have more legal knowledge than in the hypothetical where you were a Nonattorney. This is because as a lawyer in State #2, you represent a substantial economic threat to lawyers in State #1. They have lost legal fees to the extent of the advice you rendered. Stated simply, the higher the probability is that a person is competent to render legal services, the greater is their chance of being charged with UPL.

In all three hypotheticals, you engaged in conduct that probably constitutes a UPL violation. It is only in the third fact set however, where you represent a substantial economic threat to attorneys. As a result, that is probably the only situation where you would be charged. The incredible irony, is that the third fact set is where you can probably offer the most competent and valuable assistance to your loved one or friend. Here are some additional examples of conduct that probably meets the ambiguous definition of UPL, even though due to selective enforcement you might not be charged :

                    You write up a contract for your brother to buy your sister's house.

The problem with selective enforcement of UPL prohibitions is that when any law is selectively enforced, it results in a general loss of public faith and confidence in the legal system. Once selective enforcement becomes the norm, the determinative issue shifts from whether one violated the law, to whether they should be prosecuted for violating it. The general argument made by the violator is that they should receive the benefit of an exception, since someone else got an exception. There are then no longer any rules we can rely on to govern our conduct. This problem is further exacerbated in the case of UPL, because most Courts and State Bars prefer to leave the definition of precisely what constitutes UPL as ambiguous, vague and uncertain. That way they can let anyone off the hook who does not pose an economic threat to the Bar and attack with vehemence anyone who does. Essentially the diabolical brilliance of the UPL schema creates a situation where discretion and selective enforcement is exercised based on unconstitutional motivations. It results in promoting the self-serving economic and political interests of attorneys, which effectively compromises the legitimacy of the justice system. It is a dual problem. The mere existence of too much discretion promotes a lack of fairness in applying the law, and the problem is exacerbated by the improper manner in which discretion is exercised. Implementation of the UPL weapon has therefore contributed significantly to creating a general public perception of inequality and unfairness in the law.

Now let’s look at the issue from the other side. Selective enforcement can accomplish a public good in isolated cases. I'll provide an example. Every now and then there is an individual charged with some type of crime who has a great deal of public support. The public believes the person did nothing wrong from a moral perspective, even though technically they violated the law. In such situations, the public believes that Prosecutors are committing an injustice by pursuing a conviction. Prosecutors often respond to public outcries of injustice in such situations, by issuing a statement to the effect of, "the law is the law and must be enforced against anyone who violates it." When they do so, they are making a false representation to the public. The reason is as follows. It is irrefutable that our law provides prosecutors with discretion in deciding who to charge with a particular crime. They are under no legal obligation to proceed with prosecution in any instance. Every time I hear about a prosecutor issuing the statement "the law is the law and is enforced against everyone equally no matter who they are," I can not help but wonder whether they really expect members of the public to believe them.

Although the law provides discretion for prosecutors, judges and State Bars, it is critical that discretion be exercised fairly and justly. In accordance with such, the scope of discretion should be narrowly confined. Due to the danger caused by the unfair exercise of discretion, it should be kept narrow in scope. When the limits of discretion become too ambiguous or the scope of discretion too wide, the law becomes predicated on pure favoritism. For the most part, subject to few isolated exceptions, selective enforcement which is typically characterized by the improper use of discretion will result in a diminution of faith and confidence in the legal system by the public.

Regardless of how wide a person asserts the proper scope of discretion should be, and regardless of whether a person is in favor of, or against selective enforcement, two points are irrefutable. First, discretion is provided for in the law. Second, selective enforcement typified by the improper use of discretion, characterizes the current UPL framework of State Bars. UPL prohibitions would collapse in their entirety if they were enforced on a uniform basis. The unprosecuted commission of UPL in this nation, is probably exceeded in scope only by parking violations. Everybody helps out family members and friends when they can. UPL prohibitions are sustainable only in reliance on selective enforcement.

The scope of what constitutes UPL varies from state to state, but generally speaking it is defined as the provision of "legal services." That's not much help though, since it then has to be determined what constitutes a "legal service?" "Legal services" are generally defined as the rendering of "legal advice" or the preparation of "legal documents." That’s not much help either though, because the next obvious question is what constitutes a "legal document" or "legal advice?" No clear cut answers exist. Courts have wrestled with this dilemma since the 1930s. Their inability to arrive at a universally accepted definition has been one of the greatest problems in UPL prosecutions.

Can you imagine if everyone who rendered the ambiguous unknown of "legal advice" were charged with UPL? It happens so many times in common everyday situations that the number of prosecutions would be absolutely unmanageable. From a moral perspective, what category of individuals should be charged? The question itself is unsettling to those who believe the "law is the law and should be applied equally to everyone." Consider the following four categories of people performing legal services:

People without a knowledge of the law who perform legal services for free.

People without a knowledge of the law who perform legal services as a business.

People possessing knowledge of the law who perform legal services for free.

People possessing knowledge of the law who perform legal services as a business.

Initially, I work from the premise that the distinction between those possessing knowledge and those without knowledge is not predicated on whether they have a law license. Stated simply, there are many licensed attorneys who are Dumb, and many Nonattorneys who are extremely knowledgeable and proficient in the law. The determinant factor is actual legal knowledge, not state recognition of legal skills by virtue of licensure. Now, which of the above categories from a moral perspective should result in a UPL prosecution?

The answer seems obvious initially, but is not as easy as it seems. The initial inclination is to suggest that society is best off, if people in categories (1) & (2) are charged with UPL, and those in (3) & (4) are not. After all, the people in (1) and (2) lack knowledge in the law. I raise no issue with charging those in category (2), but a significant dilemma exists regarding category (1). The problem is that most family member and close friend hypotheticals fall squarely into category (1). Prosecuting those in category (1) cuts directly into the moral importance our society places on helping those we love and care about it to the best of our ability. Essentially, we tend to believe that we should do the best we can to help friends and family even if we lack knowledge in a subject area. On the other hand, condoning the provision of legal services by those who are incompetent would also seem to be wrong, thereby suggesting that people in category (1) should be charged. Which of the two has a more detrimental impact? Prosecuting family members with UPL for helping those they love, or condoning the provision of legal services by individuals who are not skilled? Either way, it's a no win situation.

Categories (3) and (4) pose an entirely different problem. Assuming the people in categories (3) and (4) are honest, logic would suggest that they should not be charged with a UPL violation because they possess legal knowledge and can help people. The problem however, is that not all people in categories (3) and (4) are licensed attorneys. There are many people in categories (3) and (4) who technically are in violation of UPL prohibitions. Although logic suggests that people in categories (3) and (4) should not be charged with UPL violations since they possess legal knowledge, they are at the greatest risk of being charged.

The legal actuality therefore, does not promote the societal interest. Competent individuals providing valuable legal services are the specific targets of UPL prosecutions. The result is that the goal of reconciling society's best interest with the legal actuality is not achieved. Remember, any Nonattorney in any one of the above four categories has engaged in UPL. They will not all be pursued however. The State Bar will not focus on category (1) individuals since it would be a public relations nightmare. They will focus on category (3) and (4) individuals who are unlicensed, and yet those people are the ones who actually possess legal knowledge. The end result is that currently, UPL enforcement has been an abject failure in attaining the societal good. Competent Nonattorneys in categories (3) and (4) are pursued, while incompetent Nonattorneys in category (1) are allowed to continue. I raise the category (1) dilemma primarily for the purpose of demonstrating its' inconsistency with category (3) and (4) prosecutions, not for the purpose of suggesting that the solution is to prosecute loved ones in a category (1) scenario.

The enforcement of UPL prohibitions can have two effects. To the extent incompetent individuals are excluded from providing legal services, society benefits and the legal profession benefits since its' competition has been eliminated. To the extent competent individuals are excluded from providing legal services, society is harmed, but the legal profession still benefits because its' competition has been reduced. Essentially, whether UPL is enforced against a competent or an incompetent individual, the legal profession always benefits. Such being the case, the State Bars have economic incentives to maximize UPL enforcement whether society benefits or is harmed.

The financial incentives for State Bars to maximize UPL enforcement, mandates that the Bar's UPL policy be critically examined. It is similar in nature to a government official who holds common stock in a corporation that submits a construction bid for a project. To the extent the official has decision-making authority regarding who is awarded the contract, their actions must be viewed suspiciously, since they will personally profit if their corporation obtains the award. This is not to suggest that all UPL enforcement activities are engaged in solely for the purpose of increasing lawyer profits, nor is it to suggest that government officials who award construction contracts to companies they own do so solely to profit personally. Any specific, isolated UPL enforcement activity has the possibility of achieving a public good, just like the corporation that is owned by the government official may actually do a better job at a better price than the competition. It is simply to assert that the close nexus between UPL enforcement, and the economic incentives for lawyers to reduce their competition mandates a critical examination of State Bar policy. Certainly, any State Bar self-serving pronouncements regarding UPL can not be accepted at face value and should for the most part be disregarded.

The primary propaganda argument used by State Bars to support UPL enforcement is that the Nonattorney's legal services are incompetent. In assessing the legitimacy of this assertion, it is critical to examine whether Nonattorneys are being held to a higher standard of proficiency by Courts compared to licensed attorneys. It is well known that procedural errors made by attorneys are often forgiven by the same trial court judges who penalize Nonattorneys making an identical error. It's known in technical legal terms as an "invidious application of the procedure-substance dichotomy." This issue is one of the most critical because in a typical UPL enforcement action the State Bar adopts the posture that not only was the service performed prohibited, but the advice given was wrong or the legal document prepared contained errors. The flaw in this argument is that licensed attorneys regularly provide incorrect legal advice and regularly prepare legal documents containing errors. Essentially, the degree of incompetency that typically characterizes a licensed attorney diffuses the legitimacy of the standard "wrong advice" or "errors in the documents" declaration adopted by State Bar UPL committees.

The opportunity for a Court to construe issues of procedure stringently against Nonattorneys and leniently with respect to licensed attorneys, coupled with the economic incentive to exclude Nonattorneys, raises further concerns about the sincerity of State Bar propaganda that aggressive UPL enforcement protects the public. Even if we assume for argument sake that issues of procedure versus substance are not applied unfairly against the Nonattorney, the State Bar's position is infirm. The reason is remarkably simple. In virtually every instance where a licensed Attorney files a legal motion with a Court, which is opposed by another licensed Attorney, one Party wins and the other loses. Presumably, the losing party was legally wrong since two licensed Attorneys presenting diametrically opposed legal positions can not both be right. It's an absolute impossibility. Consequently, it must be concluded that the Attorney representing the losing party asserted an erroneous legal position and/or submitted an erroneous legal document and/or rendered incorrect legal advice. Thus, if the provision of incorrect legal advice or preparation of erroneous legal documents constitutes grounds for precluding someone from providing legal services, there are millions of licensed attorneys who should be excluded from the practice of law. In fact, since one would be hard pressed to find a trial lawyer who has not at one time lost a motion or case, a solid assertion could be made that they should all be excluded from practice.

Turning to another subject now, if you are charged with engaging in the Unauthorized Practice of Law, who do you hire to defend you? Defending an individual against a UPL action constitutes the practice of law. So you need to hire a licensed attorney. This creates monumental ethical dilemmas, since any attorney representing you, will be torn between his loyalty to you as a client and his conflicting loyalty to the economic interests of the State Bar, which notably has the power to revoke his law license.

Consider the following hypothetical. You have just helped your crippled sister prepare legal documents to institute suit against the Health Maintenance Organization (HMO) that refused to cover injuries she sustained when the HMO President pushed her down the stairs for complaining about the high insurance premiums. The State Bar gets wind of this and sends you a letter demanding that you immediately cease helping your crippled sister because you are engaging in UPL. You write them a letter back and send it certified mail. Your brief letter states simply:

Your letter is received by the Bar on the 15th, and on the 16th the State Bar's UPL Police arrive at your house and serve you with court documents to appear before a Judge. The question now, is who do you hire to represent you in Court ? Well you toss around the idea of hiring one of your close friends, who is not an Attorney and calls herself a "Legal Technician." She regularly prepares court documents, but you've heard that she is currently involved defending herself against the State Bar in some type of UPL action, so you decide that's probably not a good idea. You tell Sis who's in the wheelchair that she won't be able to have physical therapy next week because you need to take the family's last $ 3000.00 to hire a licensed Attorney to defend yourself. Now, good luck in finding an Attorney who will zealously represent you. You can't have anyone other than a licensed Attorney represent you because of the UPL prohibitions. On the other hand, all licensed Attorneys in your state, are subject to the disciplinary process of the same State Bar that is charging you with UPL. If they do a good job, the whole UPL scheme is at risk. The State Bar is not going to like that obviously, and they have the perfect regulatory mechanism in place to get even with the Attorney. Discipline him by trumping up grounds to suspend his law license or perhaps even disbarring him. If he wants to be able to continue taking his third wife with the voluptuous breasts to Aruba each year, he's not going to want to tick off the State Bar that essentially provides his bread and butter. He'll either convince you to enter into a plea agreement, or will simply go through a half-hearted defense that results in your conviction. Otherwise, he'll probably have to plan on sharply reducing his Pina Colada intake.

Having now delineated the major problems, I propose the best solution, which concededly does not eliminate the disturbing issues entirely, but definitely minimizes them. The key is as follows. Do everything possible to ensure that the maximum number of individuals who fall into categories (3) and (4) are properly licensed attorneys, subject to the ethical rules of conduct. To this extent, it is my assertion that there is an INVERSE RELATIONSHIP BETWEEN UPL PROHIBITIONS AND STATE BAR ADMISSION STANDARDS.

The fact of the matter is that the legal profession cannot survive and society would overall be greatly harmed if there were absolutely no prohibitions against the Unauthorized Practice of Law. Such prohibitions although extremely problematic and often unfair as the foregoing illustrates, can potentially serve a vital and useful public purpose. The key to justifying UPL prohibitions and winning the general public’s support for them is to ensure that the profession does not keep its’ doors unconstitutionally closed by basing admission to the Bar on subjective assessment. Essentially, the concept is that if the Authorized Practice of Law is regulated in a fair, open and objective manner, then the probability that UPL prohibitions are serving the public’s interest, rather than the State Bar’s anticompetitive interest is dramatically increased. The current admission standards which foster subjective assessment based on an individual’s attitude, demeanor, and beliefs etc., therefore pose a dire threat to the validity of UPL prohibitions. If the portals of the Bar Associations continue to remain closed to those whose ideas and attitudes the State Bar does not like, it is in fact my assertion that all UPL prohibitions will ultimately collapse in their entirety. The legal reasons are as follows.

The constitutional justification for UPL prohibitions adopted by Courts has chiefly relied on the speech-conduct dichotomy. The basic premise is that speech is subject to greater protection under the First Amendment than conduct which is subject to a greater degree of regulation by the State. The seminal case is U.S. v. O’Brien, 391 U.S. 367 (1968). The crux of the Court’s opinion stated:

The threshold issue therefore, is whether a particular behavior constitutes speech or conduct. If it includes both speech and nonspeech elements, the respective elements must be weighed to determine which of the two comprises a greater proportion of the action. It also entails assessing the importance of the governmental interest involved to determine whether the action may be regulated. Courts have held rather uniformly for the last sixty years that the practice of law is "conduct" which may be regulated by the State and not protectable speech. The difficulty in rationally justifying such a stance is revealed by the simple fact that virtually everything a person does encompasses both speech and nonspeech components. Even when a person engages in pure political speech or religious prayer which is uniformly regarded as the zenith of activity protected by the First Amendment, they unavoidably make facial expressions, hand movements or shifts in body posture. Arguably therefore, pure political speech or religious prayer could be manipulatively classified as conduct under the same theory used to justify UPL prohibitions. The bottom line is that the mere speaking of words containing legal information or the writing down of information on legal documents contains vastly greater elements of speech, in comparison to its' nonspeech elements. This makes the legal validity of UPL prohibitions extremely vulnerable.

The problem is further exacerbated by the fact that although Courts have classified the mere speaking of words containing legal information as conduct, rather than speech, (which is the one subject area that enhances the economic interests of attorneys), they have adopted a diametrically opposed stance in virtually every other subject area. In all other subject areas, Courts typically hold that behavior containing a greater proportion of nonspeech elements is protectable speech. Some examples are as follows. In Cohen v. California, 403 U.S. 15 (1971) the Court held that wearing a jacket bearing the words "Fuck the Draft" in a corridor of the Los Angeles Courthouse was protected speech. In Gooding v. Wilson, 405 U.S. 518 (1972) the Court invalidated a Georgia statute that criminalized "abusive language tending to cause a breach of the peace." In Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972) the Court invalidated a city ordinance that prohibited picketing, except for peaceful picketing of a school involved in a labor dispute. It is logically inarguable that wearing a jacket while physically walking in a Courthouse, using language that tends to cause a breach of the peace, or physically carrying a picket sign are behaviors that contain a higher proportion of nonspeech elements when compared to the mere speaking of words containing legal information. Yet, in this one isolated area which fosters the economic interests of attorneys, Courts hold that such is conduct, rather than speech.

Equally disturbing and hypocritical is the fact that although UPL prohibitions are justified on the legal basis that the provision of legal services is conduct, rather than speech, the prohibitions are applied most aggressively to those activities containing the highest proportion of speech elements. For example, most Courts dealing with UPL litigations have determined that personal counseling poses a greater risk of public injury than the processing of legal forms. Yet, personal counseling consists of substantially greater elements of speech, compared to the processing of legal forms. Personal counseling is almost entirely pure speech. Conversely, the processing of legal forms has greater elements of conduct, and yet hypocritically is often allowed when counseling is not.

It is clear that when Judges apply UPL principles on behalf of the State Bars (the Judges are State Bar members) they play a bit of what is known as a "shell game." It works as follows. UPL prohibitions are justified on the basis that the provision of legal services is conduct rather than speech. But then, those prohibitions are applied most aggressively to situations where the speech element rather than the conduct element is of greater magnitude. The constitutional vulnerability of UPL prohibitions was demonstrated in the Dissenting opinion of the Great Justice William O’Douglas in Hackin v. Arizona, 389 U.S. 143 (1967) where he criticized the Court's failure to squarely address the issue stating:

UPL prohibitions came very close to collapsing in their entirety in NAACP v. Button, 371 U.S. 415 (1963) where the Supreme Court held that within the context of the petitioner’s case, litigation was a form of political expression and means for achieving equality of treatment. The Court rejected the State of Virginia’s false assertion that the purpose of the UPL prohibitions was to insure high professional standards and further determined that a State may not, under the "guise" of prohibiting professional misconduct ignore constitutional rights. That case dealt with an attempt by the Virginia State Bar to unlawfully use UPL prohibitions to frustrate the U.S. Supreme Court’s opinion in Brown v. Board of Education. Quite a far leap from the Virginia Bar's professed purpose of protecting the general public’s interest, and raising substantial doubt as to the sincerity and credibility of State Bar representations.

It is also noteworthy that the U.S. Supreme Court determined in Johnson v. Avery, 393 U.S. 483 (1969) that a State may not validly enforce a regulation which absolutely bars inmates from furnishing legal assistance to other prisoners. The result of this is that imprisoned criminals are legally allowed to provide free legal assistance to other convicted criminals free from concern of UPL prohibitions, but law-abiding citizens may not help other law-abiding citizens. Once again, the hypocrisy makes the Judiciary look ridiculous. As stated previously, and notwithstanding my criticism of UPL enforcement currently, I do believe that reasonable UPL prohibitions can promote the general public’s interest by protecting them from the delivery of legal services by incompetent and dishonest individuals. There is little doubt that in the absence of such prohibitions, many people will provide legal services without a sufficient knowledge of the law. Ultimately, their victims would be the helpless litigants. The solution to this dilemma rests upon focusing exclusively on the general public’s interest. The economic interests of attorneys and State Bar should be totally ignored. Stated simply, if the State Bars ensure that their doors are wide open to qualified individuals who are then regulated, rather than making admission determinations based on who the admissions committee subjectively likes or dislikes, or who they believe will support State Bar financial interests, which is in substance precisely what is transpiring currently, then UPL prohibitions are justifiable. Otherwise, the UPL prohibitions are just being used to create a transparent anticompetitive monopoly that makes the Judiciary look hypocritically foolish.

There is an Inverse Relationship Between UPL Prohibitions and State Bar Admission Standards. The general public’s interest is best furthered by liberal State Bar admission standards, which in turn mandates strict enforcement of reasonable UPL prohibitions which I would fervently support. Conversely, it is my position that continuance of a subjective and discriminatory admissions process that is predicated on factors including an Applicant’s attitude would mandate complete elimination of UPL prohibitions in the public’s interest. Stated simply, the legal profession will open its doors in a fair and objective manner like every other profession, or alternatively the legal profession’s entire monopoly will be eliminated.

Throughout this book, it will become quite apparent (particularly in the Sections where I analyze State Supreme Court decisions regarding the Bar admissions process) that I'm rather critical of the irrational thought processes and opinions of Judges. In all fairness, I therefore felt that before intellectually tearing apart their opinions, and logically demolishing their hyper-sensitive, fragile egos, I should provide a few words in their defense and in their favor. I now do so.

It’s a crappy deal to be a Judge. Considering the amount of training, intellect and hard work required, the pay is really lousy. Any good Judge could earn more money in the business world. A Judge is almost certain to have a large number of people disliking them, since any case that does not settle, results in one party being the loser. The loser will hold the Judge responsible. In a case involving a societal issue of significant consequence, a Judge could easily make thousands of political adversaries at one time, just by rendering a decision that they honestly believed was correct.

Judges have an immense degree of power in one respect, and yet in another respect are much more helpless than the average member of society since their job entails a lonely existence. They can’t openly discuss what they do at work on any given day. They have to watch every single little thing they say or run the risk of being accused of bias or prejudice. Their supporters will never be as vocal as their adversaries. Since it is impossible for a person to be correct all the time, they have to be prepared to endure feelings of internal guilt in those instances when they try to make the right decision, but make the wrong one, resulting in pain and anguish to another person or group. They are destined for sleepless nights, second-guessing, internal guilt, the impossibility of doing the right thing in certain cases, mistrusting those around them, a lack of appreciation from the public even when they act courageously, an inability to enjoy life to its fullest, and ultimately total loneliness. At best, they’ll receive some verbal adulations and expressions of appreciation on the day they retire after decades of public service. At worst, they’ll retire with the internal feeling and belief that no one ever liked them or appreciated them.

For those that do choose to serve on the bench, they are not selecting merely a career, but rather instead an entire lifestyle. The bench follows a Judge every single hour and minute of their life. They’re thinking about it when they’re sitting at home with family members as the issues pertaining to some case are lurking in the back of their mind. They think about the bench when they wake up, go to sleep, and while they’re sleeping. The bench quite simply put, never leaves the Judge. There are seven days in a week and 24 hours in a day, which equals 168 hours per week. That’s what a person signs up for when they become a Judge. A 168 hour work week, which calculates to an absolutely horrible hourly rate.

It is undoubtedly a crappy deal. But that’s life. No one is forced to become a Judge. And once they do, the general public demands a lot. Society is wholly unconcerned about what the Judge can do for other attorneys and the State Bar. Society wants and demands one thing only from the Judge. It wants the Judge to render rulings in the best interest of the litigants and general public, in accordance with the rule of law. The impact of any ruling or decision on the attorneys involved, is of negligible concern or importance to the public. If the Judge is faithful to the public they are simply viewed as having done their job, and there is no need for expressions of appreciation. Conversely, if the Judge fails to do so, society views the Judge as contemptible.

There are two alternative reasons an individual decides to be a Judge. First, a person may become a Judge because they want the power. Such individuals are what is known in technical legal terms as "morons." Their motivations will ultimately become uncovered by their peers, and the result of their career will be pure personal misery. The second and hopefully more common reason, is not quite as straightforward or easy to explain. It consists of the Judiciary, the bench, the rule of law, respect for reason and rationality coupled with an equal respect for passion, a sense of injustice, and a desire for justice, being embodied within the individual’s blood, heart, and soul. These are the individuals that have a burning desire to improve society and help the litigants with whom they identify. They become the Great Judges. They deserve the unwavering support of the general public. They deserve to have society place total faith and confidence in them, and they deserve to have the general public protect their respect when such is under an unwarranted political attack that is devoid of reason or logic. They deserve appreciation and respect from the litigants and the general public. But sadly, wrongly and unfortunately, they probably won’t get it because that’s not how society works.  It’s a crappy deal to be a Judge.

The Oregon Judiciary Branch of Government including its' State Supreme Court, Court of Appeals and Marion County Circuit Court; and I have definitely had our differences of opinion. We have developed what I consider to be a very healthy intellectual friction with each other that promotes a diminishment of their judicial ability to circumvent the law and U.S. Constitution. It has undoubtedly been a learning process for both of us. For instance, they taught me that if I desire to challenge their power it would be best if I do not enter into the geographic boundaries of their State. I have taught them that the best way to adjudicate cases requires a strict adherence to the rule of law and the strength in judicial moral character to not simply render decisions merely for the sake of "going to get along" with popular local attorneys. The reason is that ultimately a Nonattorney comes along who understands the driving economic forces behind amateurish, transparent judicial deceptions, and outplays them.

More importantly, the Oregon Judiciary has educated me as to how Courts utilize what is known as a "semantic scalpel" to ensure that immoral judicial goals are attained. The semantic scalpel is an implement used by Judges to render judicial rulings by causing words to be defined in a manner extending beyond their common and ordinary usage. The technique has been summed up by its' main proponent Chief Justice Wallace Carson of the Oregon Supreme Court as follows:

A prime example of use of the semantic scalpel was when former President Bill Clinton on national television stated authoritatively, "I Did Not Have Sex With Monica Lewinsky." Ultimately, it was discovered that he got a "Blowjob" from her. I am not a particularly big fan of Bill Clinton. Nevertheless, he was arguably subjected to an immense degree of unjust criticism for making the foregoing statement. The reason is as follows. He relied on a definition of the term "Sex" that was formally adopted by the Court in his litigation.. That definition did not in fact, include "Blowjobs." The problem was that pretty much every American considers a "Blowjob" to be included in the term "Sex." The common and ordinary usage of the term adopted by virtually everyone includes "Blowjobs."

That is why the general public condemned Clinton. As indicated previously, I don't like Bill Clinton. I thought he was a lousy President, and really nothing more than an exceptionally good actor. Nevertheless, I do believe the public's condemnation of Clinton's attempt to rely on a carefully worded definition of the term "Sex," that was in fact formally adopted by a Court of law was unjust. To put the matter simply, Clinton only did what Justices of State Supreme Courts do every single day.

Clinton was a lawyer. Throughout law school and his entire career, he had been educated to the fact that words can be defined in a limitless manner to suit one's immediate needs. Like all of the Judges and attorneys he had worked with during his career, he played a game of semantics with the term.

Games with semantics are the very heart and soul of the legal profession. However, when such games are exposed to the general public, people who play them appear as deceptive liars. The Judiciary of this nation is now faced with a major problem. Similar to how Clinton's attempted use of a semantic scalpel got him into trouble, Judges and State Bars are finding that their use of the tool is becoming less successful. Appellate opinions are now easily obtainable by members of the general public. That is a fairly recent phenomena. One can obtain appellate opinions at a very low cost on the Internet. As a result, the manner in which Judges and Appellate Courts play deceptive, clever little games with word meanings and definitions in accordance with Bill Clinton and Chief Justice Wallace Carson's "Humpty-Dumpty" technique can now easily be exposed to the general public.

In many respects, it is like the tricks used by a magician. Once a person discovers how the magician accomplishes his tricks, they are never fooled by such deceptions again. That is precisely what is occurring in this nation currently. The public is rapidly becoming educated to how Courts, State Bars and lawyers manipulate word meanings and the rules of procedure to frustrate fair and impartial adjudications. As a result, more litigants are opposing the Courts, rather than trusting them. Judges and State Bars are becoming less successful at accomplishing their self-interested goals, because the tricks they have relied on in the past are no longer working.

Litigants are starting to view Judges as one of their "opponents," rather than impartial decisionmakers. As such, Judges are no longer considered to be honest people in whose hands you may trust your children, property or freedom. They are viewed as people you have to outmaneuver, outplay and outstrategize. Like everyone else in society, Judges are now simply viewed as people looking to do what's best for themselves. You have to play their game, better than they play it. Similarly, representations made by Courts to litigants during the pendency of a case are no longer viewed as necessary steps intended to resolve matters fairly. Rather, litigants are assessing judicial representations in light of the procedural "Trick," the Court is probably trying to play to frustrate fair resolution of the issue. Litigants are beginning to understand that they often have four opponents in a litigation. The opposing party, the opposing party's attorney, their own attorney, and the Judge.

The most immoral application of the semantic scalpel occurs when Judges use it in a manner to allow a term's definition to not simply be modified, but instead to have the exact opposite meaning of its' common and ordinary usage. For instance, in Crocker v Crocker, in April, 2001 the Oregon Supreme Court determined that the term "child" includes "adults" within its' definition. The Oregon Court of Appeals had earlier used manipulative subterfuge to hold similarly. It seems to me that the common and ordinary usage of the term "child" is intended to specifically differentiate the individual from an "adult." Otherwise, there would be no need for either term. The Oregon Supreme Court in the same opinion concluded that the children of "any married person" only meant children of "married persons who are not cohabiting." Children of married persons who were living together, were therefore excluded. The court accomplished this deceptive subterfuge by using a semantic scalpel to arrive at the conclusion that the term "any" only meant "some." It was absolutely incredible. Within one single opinion, the Oregon Supreme Court had substantively concluded that the term "child" includes "adults," but excludes children. ¹⁶ The meaning of the term had been diametrically reversed. The Court's ultimate decision on the legal issue involved was obviously irrational since it was supported by irrational reasoning. Notably and commendably, the Great Justice Paul De Muniz of the Oregon Supreme Court did not sign on to such Nonsensical Judicial Trash, wisely choosing instead to not participate in the Court's ridiculous opinion. Ironically, only one month previously, the same Court wrote as follows in a different case:

It would seem to be the simplest term in the world. The word "Any." Yet, the Oregon Supreme Court in two different cases, less than two months apart, adopted two completely different definitions of this one simple word. In one case, "any" meant "some" and in another, "any" meant "every." Tomorrow, to meet their immediate goal, "any" will mean "none." It is nothing more than an amateurish game of judicial deception. Once exposed it diminishes the legitimacy of those who write such judicial opinions. Bill Clinton also was criticized for his response to another question. His response consisted of inquiring about counsel's use of the term "is" (What "is" is?) Undoubtedly, he was again playing a game with a semantic scalpel. Yet, in a recent Oregon case, the Court wrote as follows:

I see absolutely no reason why we should politically criticize any President of the United States for questioning the meaning of the term "is," if Courts, Judges and attorneys have to engage in extensive litigation over the meaning of the term "or." Judicial support for utilization of the semantic scalpel is found in the historic statement of Justice Oliver Wendell Holmes who wrote:

Undoubtedly, there is merit to his statement. Depending on the context, words do mean different things at different times. By the same token however, Holmes' statement was not intended to create a carte blanche environment for Judges to drastically alter word meanings to accomplish judicial goals. Justice Harlan, Great Dissenter on the Warren Court of the 1960s wrote the following historic passage:

As will be demonstrated later herein, Harlan was the strongest supporter on the U.S. Supreme Court for retention of the State Bar admission "good moral character" requirement. He wrote the foregoing statement at a time when the admission process was under heavy legal attack, specifically on the ground that the phrase "good moral character" was vague and ambiguous. His foregoing statement is a proper condemnation of judicial use of the semantic scalpel. It is also an admission on his part, that use of the semantic scalpel does render words and phrases vague and ambiguous. The State Bars and State Supreme Courts by utilizing the instrument known as the "semantic scalpel," have done precisely and exactly what Harlan warned them not to do. They have rendered the "good moral character" requirement totally vague and ambiguous. There is no doubt State Supreme Courts should stop using Humpty Dumpty Semantic Scalpel techniques in their opinions. Cause let's face it. Humpty Dumpty was a fairly clumsy guy who fell off a wall. And clumsy people shouldn't play with scalpels. Naturally, if you're ever accused of breaking the law in Oregon, just inform the Judge that the term "unlawful," actually means "totally legal." All you need is a semantic scalpel.

The Bar Examiner is a magazine published by the National Conference of Bar Examiners.  The magazine contains articles that address various aspects of the Bar admissions process.  In this chapter, I quote numerous passages from articles published in the magazine during the 1930s and early 1940s.  I then present critical commentary on the statements made by the authors of the articles.  Those articles contain numerous detestable statements, but nevertheless helped form the foundation for the Bar admissions process as it exists today.  Some of the things written in the magazine were nothing short of incredible, as this chapter demonstrates.

IDEALS and PROBLEMS for a NATIONAL CONFERENCE OF BAR EXAMINERS By Philip Wickser, Secretary of the New York Board of Law Examiners and Chairman of the First Meeting of the NCBE - Bar Examiner, November, 1931,(4-17)

The first article in the first issue proves the point as good as any. It was designed to outline the "Present Aims and Objectives of Conference of Bar Examiners." Pennsylvania’s system later abandoned by that State, was at this time characterized as "advanced as any other state." The Pennsylvania Character Committees were commended because they "put a great deal of time and attention on finding out about the young men who come before them." This article’s discussion of "ethics" borders on the incredible. Essentially, it asserts that ethics consists of that which destroys individuality, in favor of a group thought mentality that allows the legal profession to thrive economically. The following is an excerpt :

Keep in mind this is not just any article in one of the magazine’s issues. It is the opening article of the first issue designed to delineate "Aims and Objectives" of the organization. An organization that still thrives today and is the cornerstone of the admissions process. The key predicates are "group thought" and an economic franchise secured from the public by making the public believe the functioning ideals were worth the price. This "group thought" concept is precisely the reason litigants can’t get effective representation from attorneys they hire. The attorney’s first obligation is to his "group," even at the expense of the client. The article closes with the following:

The means envisioned to foster the economic interests of attorneys were rooted in Supply-Demand economics based on the NCBE’s assertion that the number of lawyers had to be reduced. The concept was that if the number of lawyers is reduced, then those who succeed in becoming attorneys will enjoy a large market (Demand) and a small population of attorneys to fill that market (Supply). The result of high Demand and low Supply obviously being inordinately high legal fees.

Politically, the Bar could not assert the legal profession should be difficult to enter so that lawyers may charge high fees. Such an argument would fail miserably. What they needed to do was conceal their true intent with a politically appealing statement, that would ostensibly justify reducing the number of lawyers. What they came up with, was to justify denial of Bar admission on the disingenuous ground that the general public needed protection from individuals providing incompetent legal services. In this manner, the profession would give the appearance of looking out for the public interest and simultaneously reap the economic rewards. Their scheme is conceded by this author to be brilliant, albeit entirely diabolical. In furtherance of such goals, Wickser states :

The NCBE was formed to curb the ability of a lawyer to function as an individual and to foster a community of attorneys who would function as a group, even at the expense of quality representation. That is why citizens today feel their attorney is not fighting for them, but instead providing improper "courtesies" to opposing counsel. That is why people have the feeling lawyers are part of a "Club," or "Good ol’ boy" network. They are. It becomes a situation where the litigant properly perceives they are being opposed by the other party, opposing counsel, and then most inappropriately, their own attorney. Wickser addresses what he perceives as the "problem" of attorneys not functioning in accordance with group thought and stressing the need for such, when he states :

The unbridled power of the State Bar Examiner was characterized by the NCBE in the December, 1931 issue of the Bar Examiner as follows, which in itself may be considered an organizational goals statement. Wallbank writes :

Wallbank was concerned with trimming the number of attorneys available to serve the public. He begins by asking the question :

"What are the proper legal training and satisfactory moral qualifications?"

His next paragraph lays the groundwork for drawing a nexus between utilizing "proper legal training and satisfactory moral qualifications" to trim the supply of lawyers. He asserts the Bar is overcrowded stating :

He then supplies statistics to demonstrate the number of attorneys has increased substantially. His goals are twofold. He wants to strategically utilize the admissions process to reduce the number of attorneys (Supply) which results in increasing profits for the remaining attorneys. In addition, he wants to utilize the process to help determine the "destiny of the nation." Successful accomplishment of his goals would ensure a small number of attorneys controlling the nation and profiting from it. The Bar admissions process would serve the purpose of gleaning out attorneys who will not succumb to the "group thought." The asserted need to glean out such attorneys was predicated on the obvious fact that they represent an economic threat to the profession. The sales pitch to win the general public's support is to "protect" them from unscrupulous attorneys. Wallbank then cleverly stresses the importance of proper standards for admission to the legal profession to further the public interest. He correctly recognizes the critical importance of the admissions process in allowing the legal profession to gain an advantage over others when he states:

Wallbank then takes the Bar’s domination scheme further. His goal was for the admissions process to work in conjunction with the legal education process. The concept was not new, but was definitely gaining steam at this time. The basic theory rests on the premise that if you control the law schools, you ultimately control the students who will be applying for admission. He states :

Wallbank approves wholeheartedly of the discriminatory Pennsylvania plan that became the model for the NCBE at this time, stating:

When I applied to the Pennsylvania Bar in 1995, I had absolutely no idea that I was applying to the State Bar which was probably the most significant contributor to the NCBE’s political rise. The application I was required to file asked fewer character review questions than virtually any other Bar in the nation. This I know because I requested applications from every single State Bar. The leniency of the Pennsylvania character application was the specific reason I selected Pennsylvania. I had to provide basic name and address information. They asked for my principal addresses during the last ten years. They asked whether I was addicted to narcotics, liquors or other substances. They asked whether I was ever confronted by an employer regarding truthfulness, inability to work with others, the manner in which I handled money, competence, or my moral standards. That question annoyed me because it was so vague, overbroad and ambiguous. It essentially went right to back to the notion from the 1930s of determining whether an individual is "unworthy." It was one of the few inquiries on the application that was wholly subjective in nature and interpretation.

They asked whether I was ever expelled or suspended from school and whether I ever altered or falsified any official document referring to professional qualifications. They asked whether I was currently the subject of any investigation of any law enforcement agency, and whether I was ever arrested, or prosecuted for any crime. Inquiry was made as to whether I ever filed a petition for bankruptcy and information pertaining to debts that were in arrears. They also asked whether I ever applied for a permit or license which required proof of good character, was ever charged with commingling or misusing funds, and they required a list of my employers for the prior seven years. The questions included inquiries pertaining to whether charges of professional misconduct were ever filed against me, whether I had ever resigned as a member of a Bar, or been disbarred.

The foregoing probably sounds extremely comprehensive to most readers. The fact is however, Pennsylvania had the most lenient inquiry of any Bar. They didn’t require me to provide numerous written references or specify that such references had to be from attorneys. They didn’t inquire into whether I had ever received traffic tickets, or request information about civil litigation, and they limited inquiry regarding prior employers to the last seven years instead of since I was 21 which is the standard other Bars use. Shortly after being admitted, I applied to the District of Columbia Bar. The DC Bar required me to complete an NCBE character questionnaire which was much more comprehensive in scope than the Pennsylvania application. The process of completing the DC application made me resent the application process. I felt they were too nosy, asking many highly personal, improper and unconstitutional questions. The fact that I now confirm I resent having had to fill out the NCBE questionnaire, notwithstanding that my application was approved, I believe supports the sincerity of my viewpoints. The NCBE application I filed in 1996 that resulted in my admission to the DC Bar, in addition to a wide host of cumbersome immaterial information, required me to provide written references from fourteen individuals. Three references had to be provided from each locality that I had lived in during the last 15 years, three references had to be from licensed attorneys, and two references had to be from a client, law professor or attorney.

I had to provide addresses for residences during the last ten years and information pertaining to debts, civil litigation and comprehensive questionnaires on employment. If I had been 51 years of age when filing the DC application I would have had to provide employment information for the last 30 years, if I had been 61 I would have needed the information for the last 40 years. If I had lived in 10 different localities, then I would have had to provide 30 references, since three were required for each. The term "locality" was not even defined. Did they mean a city, state, or region of the country? Pennsylvania did not in 1995 use the NCBE character questionnaire. The application I filed with Pennsylvania also did not faintly resemble the one they used in the early 1930s The Pennsylvania application from the 1930s is however characteristic of that used by other Bars today.

The Pennsylvania Plan in the 1930s encompassed four questionnaires. One was the Applicant’s questionnaire to register as a law student, one was a Citizen’s Questionnaire to be completed by three "reputable citizens," one was a sponsor’s questionnaire to be completed by the Bar member sponsoring the Applicant, and one was a questionnaire to be completed by the examining board that interviewed the Applicant. I have decided to present some of the questions used by Pennsylvania in the 1930s, which I obtained from an early Bar Examiner issue. You will no doubt find them to be incredible. These questions were applauded as the model for all states to follow in the early years of the NCBE’s inception. I believe they conclusively demonstrate what the NCBE is all about and confirm the animosity of the legal profession against immigrants and minorities.

                    10. Do you wish to adopt the legal profession for a life work?

                    State when and where you expect to acquire your legal education?

                    State in a general way the plans for your future in the legal profession.²¹

3. How long have you known the applicant?

4. State fully how intimately you know him.

5. How frequently, how intimately and under what circumstances have you come in contact with him since you have known him?

7. What are the reputations of his intimate associates?

9. Do you believe he has a deep-seated sense of the difference between right and wrong?

11. How long and how intimately have you known the members of the applicant’s immediate family ? Give names and relationship.

12. What is the general reputation and standing of his family in the community?²²

                    Are the applicant’s parents native or foreign born?

                    What is the reputation of the parents in the community in which they reside?

                    How many children are there in the family?

                    27. What is the reputation of his intimate associates? 23

This questionnaire included questions similar to those listed on the previous pages. In addition, it contained the following two questions which I thought were most interesting. The questions are directed towards the attorney members of the Local Examining Board who review the application for admission.

The NCBE conducted a round table discussion on character review which was written up in the January, 1932 issue of The Bar Examiner. Mr. Morris Duane, Bar Examiner for the Pennsylvania Board of Law Examiners expressed the Bar’s position as follows regarding the character review :

Later Duane states :

Paul Shipman Andrews, Dean of the University of Syracuse Law School stated :

His reference to "conditions in the larger cities" exemplified the Bar's prejudicial mindset. They wanted to curb the ability of foreign born immigrants to gain admission to the Bar. The Pennsylvania Plan praised by other Bars at this time was predicated on controlling the admissions process by imposing character standards at the law school level. Duane summarized it as follows:

The Pennsylvania Plan ultimately collapsed years later. Even today however, it is irrationally emulated by other State Bars. Law Student Registration promoted initially by Pennsylvania has been bouncing in and out of State Bars for decades. As stated previously, when I was a third year law student in 1994, the University of Oregon Law School indicated that for classes subsequent to my own, registration would be required. Whether they actually implemented the program or not, I do not know. The two key prongs of the Pennsylvania Plan were dual character investigations, and the Preceptorship. Character would be investigated when you entered law school, and also when you applied to the Bar. The Preceptor would keep an eye on you during law school. The Plan facilitated "group thought" goals and allowed the profession to exert control over the individual by leveraging their ability to obtain a law license. It accomplished such a detestable goal, by controlling the prospective attorney from the first day they entered law school. Duane outlines the manner in which the Pennsylvania Plan operates further. He states:

George H. Smith of Utah, and former Chairman of the ABA Section of Legal Education and Admissions to the Bar makes a prejudicial contribution to the discussion as follows:

Smith’s statement personifies quite well what the ABA Section on Admissions to the Bar is all about.

THE REAL DISTINCTION BETWEEN PART-TIME and FULL-TIME LAW SCHOOLS By Alred Z. Reed, Of the Carnegie Foundation for the Advancement of Teaching Bar Examiner, March 1932, (P.123-132)

Eliminate the ability of economically disadvantaged individuals to attend law school and you ensure a profession predicated on the furtherance of NCBE economic goals. A privileged profession. Eliminate the law schools typically attended by economically disadvantaged individuals and you eliminate their ability to attend law school. How do you eliminate those law schools though? The answer is simple. Deny their graduates the ability to obtain a law license. Obviously, the NCBE could not simply assert that law schools which cater to economically disadvantaged individuals should be eliminated for the purpose of excluding their graduates from the legal profession. That would look bad to the public. It would not fall into the category of "wise publicity." The NCBE needed a statement of purpose that sounded appealing to the public, and simultaneously furthered their anticompetitive goals.

Typically, economically disadvantaged individuals attend law school on a part-time basis. This is because they don’t have enough money to stop working and go to law school full-time. The ABA, NCBE and the legal profession as a whole, therefore wanted to eliminate the part-time law schools that allowed attendance of law classes at night. Reed’s article comments on an opinion of the New York Court of Appeals. In the case, "Petition of the Association of the Bar of the City of New York to Amend the Rules of the Court of Appeals Relative to the Study of Law," 257 N.Y. 211 (1931), the Court denied a Bar Petition to amend the rules. Specifically, the amended rule if adopted would have required more classroom hours for students attending part-time law schools (1024 hours over four years), compared to those attending full-time (960 hours over three years). The Court’s decision was for the most part logically sound. They properly recognized the discriminatory nature of the proposed amendment and rejected it. The opinion however, included a disturbing statement that ultimately contributed to adoption of the discriminatory plan years later. The New York Court of Appeals left the door open when it stated:

The foregoing statement was made notwithstanding that the Court expressly stated in its opinion :

Years later, the ABA’s Section on Legal Education and Bar Admissions succeeded in distinguishing between part-time and full-time law schools. They succeeded in furthering the legal profession’s goal to promote discriminatory treatment. The rule still exists today.

The April issue included an article titled "A National Board of Law Examiners " by Will Shafroth.²⁷ At this time, although the NCBE's star was on the rise, State Bar admissions were regulated without uniformity amongst the States. This article explored the possibility of a National Board. Shafroth discussed the National Board of Medical Examiners (NBME) and presented it as a model to be emulated by the legal profession. The NBME was organized in 1915 and by 1932 its’ certificate was recognized by 41 states as entitling the holder to admission to practice in those states. Shafroth provided information regarding the admissions process in several states in 1932. In Arizona, Arkansas, Florida, Georgia, Indiana, Nevada and Virginia there was no requirement to attend law school. Nor was there a requirement in those states of attending college, or even high school, according to Shafroth’s article. In Colorado, Illinois, Kansas, Michigan, Minnesota, New York, Ohio and West Virginia two years of college education were required before entering law school.

The April issue in its section, "News from the Boards" disclosed that the Texas Board of Bar Examiners had submitted a rule to its State Supreme Court requiring a high school education, and providing for registration of law students.²⁸ That would result in the Applicant being subjected to two character assessments. One upon entering law school and the second, upon applying to the Bar.

In the section titled, "A Layman’s Comment on the Rules for Admission in California " the Bar Examiner disclosed that the California legislature had given power to the State Bar to require a high school education for admission.²⁹ Chester Rowell, a newspaper writer, cited in the article, wrote as follows :

Contrary to what most Americans believe, becoming a member of the legal profession has only required inordinate requirements within the last several decades. Even in the early 1930s, it was common to become a lawyer without any college education prior to attending law school. Today, the route is typically high school, four years of college, and then three years of law school. Yet, citizens today are no happier with the quality, zealousness or competence of attorneys, then in the 1930s. This is notwithstanding the plethora of restrictions placed in front of the potential attorney as a blockade. More education required than ever. Irrational and immoral character standards designed to exclude everyone except those willing to accede to and support State Bar economic interests. And yet, the attorneys overall, are as crappy as ever. The legal profession today is in lower public repute than ever, although admittedly it has historically never been particularly well regarded or respected. Yet, State Supreme Courts continue to write opinions referring to it as an "honored profession." The Bars lack of regard for historical facts is accompanied by their lack of regard for the public’s intellect. When they refer to the legal profession as "learned" or "honored" they insult the intelligence of the public, since no one believes them. The Judiciary "lacks candor" when it makes such statements. It misleads and fails to disclose material facts in a truthful manner.

The April, 1932 issue also contained a section titled, "French Law Students Protest Against Attempt to Make Admission to Bar Easier. " The NCBE in many issues of the Bar Examiner during the 1930s would provide commentary on admission standards in other countries, when such fulfilled their "wise publicity" objective. Essentially, their purpose was to present examples of restrictive admissions in other countries, or protests against liberalization of admissions, to support their goal of exclusionary admission in the United States. The section on French law students read as follows:

An editorial in this issue presented a particularly unique viewpoint. It was a plea to law firms to provide jobs to graduating law students. When I read the beginning of this article, I thought it sounded great. Then the real goal became apparent. The anonymous writer described the reason law firms should help graduating students as follows :

The proposed concept was as follows. Law student graduates would become protective of the profession and support a restrictive admissions process, if the profession would help them out in the beginning. The new attorneys are referred to as "their young." One big, happy, State Bar family. In a Section titled, "The New York Conference on Legal Education," there appears an interesting point of view from Dean Young B. Smith of the Columbia Law School. The section states :

What did he mean by the phrase, "inherently unfit?" The phrase suggests that an individual may be "unfit" no matter what they do in life, since the condition is "inherent." Such being the case, it would seem that Smith was referring to the "inherent" and immutable characteristics of the individual. Their economic position in life. Their race, creed, color, religion, etc.. Another example of the prejudicial notions that infest the Bar and the NCBE. These wrongful notions function as determinative factors in character committee assessments of Bar Applicants. The character standards then become "dangerous instruments," used by the State Bars in an arbitrary and discriminative manner.

Green’s article begins as follows:

The question he then poses is whether an integrated bar could offer help. His focus is on inordinately increasing the power, scope and influence of the bar organization generally, and the admissions board specifically. He states:

Green then irrationally suggests the Bar admissions board should function independently of the three branches of government stating:

Green’s concept of a junior bar was designed to foster control over the attorney, and promote "group thought" notions. It would work as follows. Law school registration would control the prospective attorney from the day he enters law school. The Preceptor component of the Pennsylvania Plan would allow a close watch to be kept on the individual to ensure conformity with the Bar’s irrational conception of "moral character." The Junior Bar concept would then keep the leverage in place even after admission was obtained. This has always been the legal profession’s goal. Require the individual to constantly be striving for full and complete acceptance at each level. Accomplishing each goal mandates acceptance of conformity and the subjugation of any individualistic ideas that the attorney may have, to the Bar’s economic interests and "group thought" goals. Like most of the NCBE’s supporters, Green uses the prejudicial notion of "worthy" individuals to forward his anticompetitive goals. He states:

He then proposes the elimination of part-time law schools. Those schools were typically institutions catering to economically disadvantaged people. He writes:

For the last several decades, Courts have falsely asserted in a variety of opinions that the power to admit attorneys to practice rests with the Judiciary irrefutably. They are not "candid." This anonymous, unauthored article included in the Bar Examiner begins as follows:

The documented historical fact is that it really wasn’t until the 1930s, that the Judicial power to admit attorneys became firmly and perhaps conclusively entrenched in the Judiciary, rather than the Legislature. In fact, it was the propensity of Legislatures to enact statutes in earlier years that claimed the licensing power which was the chief catalyst for formation of the ABA in the 1870s. Between the 1870s and the 1920s, there was extensive litigation on the issue. The Judiciary ultimately prevailed. This is not surprising, since the Judiciary itself was rendering the decisions in those cases. This article quotes the Boston Bar Association’s publication, "The Bar Bulletin" as follows :

It is clear from the foregoing, the issue of whether admitting attorneys to practice is a legislative or judicial function was "left open" in Massachusetts as late as 1932. Courts today that assert the power has always rested with the Judiciary engage in a false presentation of historical facts. Their bold, selfserving and easily disproven assertions do not reconcile with history. The article further states:

As late as 1906, the issue was squarely decided against the Judiciary, and two major states New York and California decided the issue against the Judiciary in 1860 and 1864 respectively. Deciding the issue in favor of the Judiciary were Illinois in 1899, New Jersey in 1904, Wisconsin in 1875, Pennsylvania in 1911 and South Dakota in 1909. The Pennsylvania case, Hoopers v. Bradshaw, 231 Pa. 485 (1911) is quoted in part, in this Bar Examiner article as follows:

Was the Court in Hoopers being entirely candid? In view of the extensive litigation on the issue, I think it’s fair to say that the phrase "This has never been doubted or questioned since" was misleading. The Court presumably was referring only to the fact that the issue had not been doubted in Pennsylvania, since that state's last litigation on the issue was "a century ago." Arizona addressed the issue in the case, in re Bailey, 30 Ari. 407 (1929). The Court stated:

The theory adopted by Arizona in 1929 was previously adopted by Pennsylvania in 1928, and Wisconsin in 1932. It is the standard applied in most states today. The concept relies on the theory that the power to admit rests with the Judiciary, but Legislatures may enact minimum standards, so long as they do not conflict with standards set by the Judiciary. The practical result is that Legislative standards are nullified since they are below the Judicial standards for admission. The Legislative admission standards currently serve absolutely no function, since if they conflict with a Judicial standard, the Judicial rather than the Legislative standard applies. The Bar Examiner quotes the 1932 Wisconsin case, State v. Cannon, 240 N.W. 441 as follows:

The Court also stated:

This article confirms that the issue of whether the power to admit attorneys rests with the Judiciary or the Legislature was an extremely heated and litigated issue during the late 1800s and early 1900s. In many cases, it was established to be a Legislative function although the victories were short-lived, once the ABA mobilized. The main point is that any State Supreme Court today that asserts the power has been historically unchallenged, simply doesn’t know what they’re talking about, or alternatively is intentionally trying to deceive the public.

This Bar Examiner article explores the concept of diminishing the number of attorneys available to serve the public (the Supply side of the economic Supply-Demand relationship that drives pricing), by restricting the number of times an individual who has failed the Bar exam may sit for it again. I am of the belief that a basic American ideal is "if at first you don’t succeed, try, try again." Historically, I believe in this nation we love the concept of an individual who never quits, and we applaud them once success is achieved. The State Bars apparently don't subscribe to this theory. Their notion is apparently, "if after the very first few tries you don’t succeed, then we don’t want you to be an attorney because you are not worthy." The article states as follows:

The idea being conveyed is that giving partial credit is an atrocious policy. In fact however, it is the State Bar's failure to give partial credit that is atrocious. Allowing partial credit for passing sections of the exam is an excellent concept. Partial credit is given on the Uniform CPA Examination and there is no doubt that attorneys could learn a lot from Certified Public Accountants. Although, I personally passed all four parts of the CPA exam in one sitting, most examinees do not. Typically, most states give partial credit on the CPA exam for parts passed. The Bar exam itself should also be tougher, and totally objective in order to avoid grading based on subjective opinions of the grader. Providing partial credit would allow Applicants to study specific sections intensively, without fear they were giving up studying in other areas. Those who are exceptional would pass all sections in one sitting. Typically however, passage would require two or more examinations. There obviously should be no limit on the number of times an examinee may sit.

Restrictions on reexamination existed in 15 states in 1932. The restrictions generally consisted of a waiting period to be spent in further study. North Dakota limited reexaminations to four times. Pennsylvania limited the number of times an individual could sit for the exam to three. The concept of a waiting period embodies State Bar irrationality. The longer the Applicant waits, the higher is the likelihood they will forget information learned in law school. The August, 1932 issue in a short section titled, "Kansas Goes on Three-Year Pre-Legal Basis" stated:

Today, most Bars require a four year college education. Yet in 1932, Kansas was the only State in the entire nation with a rule requiring three years, and that rule would not be effective until 1936.

The September, 1932 issue in a small section titled "With a Hey Nonny Nonny and a Hot Cha Cha!" read as follows:

The phrase "give all practicing members . . . time to get a firm grip on their feminine clients" is interesting to say the least.

The October, 1932 issue revealed significant information about how the NCBE was being funded during its initial years. In a section titled, "Report of the Executive Committee of the National Conference of Bar Examiners to the Second Annual Meeting" the following was disclosed:

The Carnegie grant was the main funding source of the NCBE during its’ early years. The ABA Section on Legal Education and Admissions contributed $ 2500 on top of the Carnegie grant. By the end of its first fiscal year however, only 9 States had contributed to the NCBE. California led the way with a $ 500 contribution, and Oklahoma second with a $ 150.01 contribution. Connecticut contributed $ 100.00. The remaining six contributing states contributed $ 50.00 or less. The NCBE clearly had a financial problem. When the Carnegie grant ran out, how would they continue funding the organization? The Report included the following on this issue:

The operative phrase is the one that reads, "if our organization was of real value to the profession." Note the term "value" is construed in terms of the profession, not the public. The NCBE was a self-serving organization from day one. The total Receipts on the NCBE’s Report for the first year were $ 8,571.89. The highest expenditure was for publishing the "Bar Examiner" at a cost of $ 1947.30. The next highest expenses were Salaries of NCBE members of $ 1426.63, Transportation costs of $ 1400.25, and Meeting expenses for the Executive Committee of $ 796.44. All remaining expense categories were less than $ 300.00 each. The Bar Examiner Section titled, "Progress in Adoption of Bar Standards," in the same issue, read as follows:

A sad letter demonstrating the insensitivity of the NCBE is included in a Section titled, "An Interesting Correspondence." A prospective Bar Applicant’s uncle wrote a letter to the funding agency of the NCBE, the Carnegie Foundation, and received a disturbing reply. The correspondence is as follows:

Alfred Reed wrote back providing the following irrational advice:

Reed’s letter is incredible in my view. It was published with approval by the NCBE. You have in this situation a 24 year old man trying his best to move forward in life. He is willing to work five years in accordance with published State Bar rules to gain admission. Even though his plan is in accordance with published rules, Reed characterizes his plans as "so devious a route" and an attempt to "beat the system." Reed, apparently with the blessing of the NCBE goes so far as to threaten this potential Applicant, who at the time had no legal training whatsoever. Reed asserts that "bar examiners are quite capable of changing the rules of the game on short notice." He classifies potential admission of this individual as a "backdoor" admission, even though it would be in accordance with existing rules. The most atrocious sentence in his letter is the one that reads:

Consider the last sentence. Is it sensible or fair to allow the State Bars to have "considerable opportunity to postpone the admission" of an Applicant "for any reason?" Particularly, if the Bar is "technically bound to admit?" In my view if they are technically bound to admit, they lack good moral character by postponing admission "for any reason, they disapprove."

Effective utilization of the argument that the legal profession was overcrowded, in order to facilitate the exclusion of qualified individuals from the profession was exemplified in this article. Harno begins as follows:

Harno then addresses "overcrowding":

The foregoing is a significant passage. Harno is searching to find grounds to "justify taking steps to decrease its members." He recognizes that decreasing the Supply of attorneys, for the purpose of increasing legal fees is not a saleable concept to the public. It would not be "wise publicity." His true goal is clear. But, it is the justification to be sold to the public that he is looking for. He wants to stem the tide of attorneys at the source, which is the law schools. He states:

Barriers. "The barriers must be located at a more strategic place." Harno’s message, printed with the approval of the NCBE is clear. He wants to block admissions at their source. Later, his irrational notions are further revealed by his usage of the phrase "anti-social members." The NCBE’s "group thought" mentality is the cornerstone strategy.  He writes:

The second paragraph above is frighteningly incredible. As a preliminary matter, Harno has played the role of a "trickster" himself. He refers to the courts and legislatures as "those agencies." By doing so, he diminishes their stature. Courts and legislatures are not agencies. They are branches of government. What Harno has done is slyly place the branches of government on an even keel with the Bar, which itself is nothing more than a mere agency. He then raises the Bar’s prominence above the branches of government by stating, "we are seeking to improve other agencies in order to improve the bar." The "other agencies" he refers to are the Courts and the Legislatures. Their purpose in his irrational view was to "improve the bar." He envisions that the branches of government function for the purpose of improving the Bar. The end result is then that the branches of government play a role of subservience to the State Bar which is elevated to a heightened status.

It should be recalled that Alfred Reed, the author of this article is the individual who provided the irrational response to the letter from the man attempting to assist his nephew. (See pgs. 68,69) Reed was a prominent member of the Carnegie Foundation which funded the NCBE. This article presents another example of the prejudicial notions manifested in the NCBE. It also provides historical information about the development of the legal profession and how the NCBE was striving to accomplish what other professions had in regards to centralization of power. He writes:

Reed then addresses the "backwardness" of organizing on a national basis by stating:

Reed then addresses the issues faced by the NCBE and Bar Boards of Examiners in dealing with Courts and Legislatures. He writes in an incredible passage:

What does he mean when he says?:

He uses the phrase, "reckoned with," to suggest they must be subjugated to the NCBE's irrational ideology. In his irrational view, there are two alternatives. Either "their cooperation secured" or alternatively, "their hostility discounted." He treats the local bar associations and law schools as if they are citizens of a captured foreign country. They are to submit to the new authority or will be "reckoned with." Why does he refer to reforming the admissions process as beginning to, "prosecute this long and painful process?" Who will it be "painful" to? Are their criminals involved? Presumably not, yet why the term, "prosecute?"

If the NCBE notions were rational, then why as Reed suggests should the Bar Examiners and NCBE have a need to consider themselves as "propagandists?" The mere usage of such a term conveys the impression that the purported justifications for change are not genuine. Rather instead, he wants them veiled in propaganda that looks appealing to the public. The NCBE’s lust for power and control is manifested in his suggestion that the supporters should consider themselves:

"as ministers, if you like, of the true professional gospel."

It is an unbelievable statement. In his mind, the admissions process becomes a religious cause. They are not merely professionals, but ministers. They are he suggests, prophets of the "true professional gospel." He addresses law schools as follows:

Reed truly believes the State Board of admission has:

He was wrong. His position was unsupported by State statutes and rules in existence at the time. He was not candid, and he failed to disclose material facts. He suggests the admissions authority is an organization having large powers of "moral influence." The NCBE however, from a perspective of ethics was itself morally reprehensible. Reed addresses the Bar exam as follows :

This is an important passage because of the phrase:

As a matter of constitutional law, the fact is that if they are "arbitrary" rules, they are probably not authoritative, but rather instead are constitutionally infirm. The phrase may fairly be viewed as an admission of guilt. Reed correlates the authority of the admissions Board to the needs of the general public as follows:

It’s an extremely cagey passage. He chose his words carefully. He conveys a message that the admission authorities are looking out for the public’s interests, but then at the same time carves out qualifying conditions. He does not say that the admission authorities are obliged to take action in furtherance of the public interest. Rather instead, he says they are obliged to do so, "sometimes" in a manner that does not "in itself, benefit the profession." He asserts that they may, "on occasion," even "consider" policy that is in "some degree" detrimental to the "immediate interests" of the profession. These are important distinctions. He has slyly written that the profession’s interests are paramount. He accomplishes this not by allowing for action detrimental to the profession, but rather instead only allowing for action detrimental to the "immediate interests" of the profession. The concept is that by giving a little in furtherance of the public interest at strategically chosen times, the long-term interests of the profession will be fostered, even if the "immediate interest" is sacrificed to a minimal extent. He addresses the purported issue of an overcrowded Bar (Supply-Demand issue), by strategically exploring whether a minimum limit of attorneys (rather than the standard NCBE argument of setting maximum limits) should be established. Once again, his focus is on the profession, rather than the public:

Reed’s article closes with a section titled, "Social and Racial Discrimination." His viewpoints are despicable, overt and in view of the fact they were rubber-stamped by the NCBE, particularly sad. He writes at the end:

At first I thought that Gest was jesting in this article, but sadly I was mistaken. He addresses law student registration and character review requirements as follows:

Read the second paragraph above again. Do you believe it is in accordance with American values? Should Bar admission be predicated on whether your "family traditions are in accord?" Should it matter whether the Applicant has "impressed himself upon citizens of unquestioned reputation" or should the focus be on only the conduct of the Applicant? Should character even be subjected to such detailed review, if the character of licensed attorneys and Judges is not? Here’s another interesting passage:

The Pennsylvania Plan utilized Preceptors. The duties of the Preceptor were outlined by Gest as follows:

The operative phrases are "unsuitability" and "certain undesirable applicants."

A small section titled as above, contains the following quote from James Grafton Rogers, Assistant Secretary of State:

Roger’s statement is important for the fact that it exemplifies how the admissions process does not conform with democratic ideals of our nation. His diminishment of this importance by falsely characterizing it as the "only argument" is morally reprehensible.

Hitchcock writes about the admissions process in Massachusetts. It had led to immense political friction between the Judiciary and the Legislature. He writes:

It is clear from the above passage that the power to admit attorneys was by no means irrefutably a Judicial power, but rather instead there was substantial uncertainty on the issue. Most notably is the phrase:

Hitchcock then addresses the character review process:

Hitchcock’s use of the term "personality" is disturbing. Similarly disturbing is his use of the phrase, "in the broad sense." Such phrases foster character assessment predicated on wrongful subjective notions. They lead to assessment decisions predicated on the ideas, beliefs and family background of the Applicant. If you don’t agree with my analysis, consider his later statement on character assessment:

Hitchcock becomes indignant writing about when the admissions policy in Massachusetts was challenged. He states:

Should the Bar Examiners of a particular State be allowed to have a large concentration of members from one law school? Here’s a great passage on the issue:

If there was no concern about the discrimination prohibition because it was "harmless," then why was it omitted from the bill?

The Bar Examiner quotes the following:

Remember, when this passage was published in the Bar Examiner, World War II had not yet began. It is remarkably disturbing that the German restriction on Bar admission was presented with approval by the NCBE.

Wickser in promotion of the NCBE and Bar Examiner’s "group thought" mentality irrationally chastises the diametrically opposed characteristic of individuality as follows:

Treatment of the public derived from the "group thought" mentality, he addresses as follows:

The need to justify the legal monopoly he addresses as follows:

What do you think? His conclusion stands on its’ own:

Page 170 of the Bar Examiner in 1933, titled as above, is short and designed to be humorous. I have taken particular care to verify the spelling as printed in the Bar Examiner. Prejudice often manifests itself in humor. This is a good example of tasteless humor at the expense of an uneducated individual. It reads as follows:

In an article titled, "Should the Standards for Bar Preparation Be More Exacting, " John Wigmore, Dean of the Northwestern University Law School writes:

                            "The law student of today will be the law reviser of tomorrow." 55

He is right. Another article in the same issue titled, "Rule Recognizing Law Study Only in Approved Schools is Sustained by Connecticut Court" addresses a Connecticut opinion that stands for the false proposition that the admission of attorneys is undoubtedly the function of the judiciary. The case, Jacob Rosenthal vs. State Bar Examining Committee, (1933) contains much language to this extent. One particular passage of the opinion suggesting otherwise however, caught my eye. The Court wrote:

The Court was attempting to justify its failure to carry out the admissions process directly, and instead delegating it to the Bar. The dilemma this creates is obvious. If in fact, as the Court states:

then the inescapable conclusion is that they do not have to be performed by a judicial agency. They could just as easily be performed by a legislative agency. The Court embarks on an irrational path of logic. On the one hand, they want to establish that the admissions process is undoubtedly a province of the Judiciary, rather than the Legislature. On the other hand however, they don’t want to actually perform the duties. To justify nonperformance, they take the position that the procedure is "not judicial in nature."

In this Section, the Bar Examiner printed a letter of inquiry from Harvey Carr of the New Jersey Bar to John Kirkland Clark. Carr’s letter inquires as follows:

Clark wrote back as follows:

It was at this time, that the German moratorium on Bar admissions was receiving a great deal of media attention. A strong movement was growing in the United States to adopt a similar policy.

At a meeting of the Pennsylvania Bar Association in June, the question was posed whether the Association should recommend adoption of a limitation in annual admissions. The recommendation was ultimately not adopted, but the following was included in the report:

Note the phrase:

This is where the Bars were focusing their attention, because at this stage in our nation’s history, the cities were where most immigrants and minorities were living. The Resolution suggested probationary or partial admission to the Bar. That concept has been bouncing up and down in the State Bars for the last 60 years. The Bar's goal is to exercise control over the lawyer’s practice, since the individual is not yet a full and complete member of the Club. If they can leverage the attorney controlling the litigation (by probationary admission), then the Bar can basically control litigation outcomes. Would you want someone representing you who is on probation, when the opposing party has a "full-fledged" attorney? The article contains the following passages:

"Reciprocally it is believed that the rejection of the unqualified would be a kindness to them." The article concludes:

Note that the public is relegated to a secondary position after the Bar.

Roy Shield states as follows in defense of the Board of Bar Examiners in Oregon:

This article was written by none other than the Chairman of the NCBE himself. It is an amazing article replete with prejudicial statements, but also contains some passages promoting objectivity, rather than subjectivity. I am forced to concede that I am unclear as to its overall message. At times Megan seems to contradict himself. The passages are nevertheless amazing and I quote the article at length.

Megan then gets even more historical:

The Pennsylvania Plan applauded by the NCBE as a model to follow was praised again in this article. George Appel in furtherance of promoting an irrational, unfair, subjective admissions process writes as follows:

Following this article, the Bar Examiner magazine contained a Section titled, "Greece to Limit Lawyers." It read as follows:

It was clear that the NCBE was very interested in the concept of a quota system to limit lawyers, thereby restricting competition, and was fostering significant discussion on the issue. The Bar Examiner then published interesting information pertaining to admission standards of several states in the November, 1933 and December, 1933 issues. Virginia in 1933 had no formal educational requirements of any nature. Nebraska on September 18, 1933 promulgated rules requiring a high school education, and Registration of law students.

The Supreme Court of Missouri on October 16, 1933 asserted the power of the Judiciary over the Legislature to regulate admissions in the case, Proceedings against Paul Richards for disbarment, 63 S.W. 2d 672 (1933). The Court stated:

The December, 1933 Bar Examiner issue on page 48 contained a Section titled, "Stem Winder Department" which was a reprint from the Mississippi Law Journal, XV, No. 1, p.6. It read as follows:

Chairman Bierer, Jr. of Oklahoma begins as follows:

. . .

Judge James Ailshie, of Idaho:

"You proceed on the same theory that we do, that a man has a right to reform."

George Appel of Pennsylvania:

"It is too bad we don’t have a qualified admission. . . . . . ."

D.L. Morse of Minnesota:

. . .

George Appel of Pennsylvania:

. . .

George Appel of Pennsylvania:

Judge Ailshie of Idaho:

George Appel of Pennsylvania:

. . .

George Appel of Pennsylvania:

. . .

Dean Dickey of California:

Following the Round Table discussion on Character Examination, the January, 1934 issue contained a small section titled, "New Rules Adopted in the Philippines" pertaining to "repeaters" (those who keep taking the Bar exam after they fail) which read as follows:

More information on the Pennsylvania Plan was presented. It read:

The last paragraph is particularly important. It demonstrates the mindset of the Board. They wanted to change the rule requiring them to:

                                                            "set forth in some detail the reasons."

The change they wanted was to merely require they set forth:

The difference is monumental. The rule in existence required the Board to give reasons for denying admission, while the proposed amendment would allow them to reach a conclusion without providing reasons. It is easy to discern that the Board’s recommendation would totally purge objectivity from the admissions process. Acceptance of the amendment would allow admission to be denied, even though unsupported by any facts, evidence or reasons.

The concept of probationary admission was gaining steam. This article described the concept as follows:

If at first you don’t succeed, try, try, again ! Definitely not the credo of the NCBE. Reexamination was irrationally considered by the NCBE to be a privilege, not a right. This article presents the NCBE’s irrational viewpoints, utilizing extensive comparison between the legal profession and the medical profession. Although the article is ostensibly designed to address Reexaminations, its’ scope extends well beyond that subject. The viewpoints are incredible. Note particularly, use of the phrase:

That language and other passages come quite close to suggesting establishment of a master race of attorneys to rule the American government. The article states:

The easiest task in the world is to fashion the ideals of a "rugged individualism" : the next easiest task is to attain those ideals in every day life.

. . .

With good grace we can certainly draw the line against the applicant who fails three times. My opinion is that the privilege of reexamination should, in the usual case, be limited to two repeater examinations.

. . .

. . . Certainly in the legal field it is a necessary expedient, for until the legal system turns to the elimination of the poorer grades of lawyer material through the standard schools some elimination must be effected through the state bar examinations. . . ." 69

An emotionally touching letter written by a Bar Applicant is included in the March 1934 issue. He failed the exam a few times, and then ultimately passed. I present the portions of the letter that convey the strong emotions that he felt upon passing the exam. The reason however for presentation of these passages extends further. A responsive commentary to the letter was published in the April, 1934 issue. After reading the letter and then the response, there is little doubt in my mind that the reader will disapprove of the NCBE. First, the Applicant's letter which was written to the chairman of a board of bar examiners, states in part:

It is a strong letter that I believe touches the heart. A letter filled with tragedy and triumph. Now here is the response to the letter. This commentary was written by George Nutter of the Committee on Legal Education of the Bar Association of Boston, to Will Shafroth, of the NCBE. It is published on page 144 of the April, 1934 issue of the Bar Examiner: