For many, there is confusion between the terms practicing law and private counsel. The following research summary clarifies many points of interest. Based on substantial research and analysis and legally admissible evidence, we can safely conclude the following:
- There is no such thing legally defined anywhere in any enactment of any government that is specifically called a “license to practice law”.
- An “Admission to Practice” issued by the U.S. Supreme Court functions as the de facto equivalent of a “license to practice law”.
- Individual courts also issue admissions to practice to attorneys who VOLUNTARILY apply for it.
- Neither the Constitution nor any legislative act within any state of the Union can or does specifically authorize a justice of the state Supreme Court to issue “Admissions to Practice”. Therefore, there is no authority and can be no lawful authority to issue such grants of privilege.
- The Ninth and Tenth Articles to the United States Constitution specifically reserve all powers not delegated by the Constitution to the People or the States respectively. Therefore, the Federal government has never been empowered to issue “licenses” or “admissions” to practice law. Neither can this authority be implied from the “necessary and proper” clauses found anywhere in the Constitution.
- The idea of “licenses to practice law” is therefore primarily a “judicial doctrine” that cannot adversely affect the Constitutionally protected rights of any man or woman.
- All those persons represented by a licensed attorney are “wards of the court”, incapable of executing their own defense or litigation. As such, “licensed attorneys” are there to represent them as “incompetents” and the authority of the state to license such attorneys derives from the need to protect such incompetent persons.
- It is not a crime to practice law without a license and there can be no adverse consequences for doing so for any person not domiciled on federal territory under exclusive federal jurisdiction, so long as the person doing so identifies themselves NOT as an “attorney”, but as a “Counsellor at Law”.
- The only case where any judge or public official may mandate or influence one’s choice of counsel is in the case of public traded entities, such as corporations. Private corporations and private persons may not be controlled or regulated in their choice of legal “counsel” to only those who have been licensed or admitted to practice by the state supreme Court.
- The only legitimate purpose for “licensing” of attorneys is to protect the public. In practice, public servants abuse this regulatory authority delegated to them NOT to protect the public, but to: 10.1. Stifle all attorneys from speaking the truth in open court about government and official corruption, especially as it pertains to the judiciary. 10.2. Establish and further the ends of a legal profession monopoly on the practice of law designed to further their own private economic ends.
- The authority to “practice law” conveyed upon “counsel” or a “counsellor at law” includes the following:
11.1. Preparing pleadings, discovery, and execute discovery.
11.2. Arguing issues of law before the court.
11.3. Advising the assisted party of his rights and options. The word “attorney” is not equivalent to “counsel” as used in the Sixth Amendment. All licensed “attorneys” may also be classified as “counsel”, but not all counsel need be licensed attorneys within the meaning of the Sixth Amendment. Any claims to the contrary will require proof of a damaged party, as a result of “unlicensed practice of law”, by the living man or woman who is a damaged party due to this mysterious “practice”, who will testify under oath and quote the law and/or contract which applies where someone was practicing law without disclosure of these facts.
Constitutional Law – Right to Counsel – Not Limited to an Attorney – United States v. Tarlowski,
305 F. Supp. 112 (E.D.N.Y. 1969) Robert B. Ingram – Copyright c 1970 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
Robert B. Ingram, Constitutional Law – Right to Counsel – Not Limited to an Attorney – United States v. Tarlowski, 305 F. Supp. 112 (E.D.N.Y. 1969), 11 Wm. & Mary L. Rev. 787 (1970),
Constitutional Law-RIGHT TO COUNSEL-NOT LIMITED TO AN ATTORNEY.
United States v. Tarlowski, 305 F. Supp. 112 (E.D. N.Y. 1969). During interrogation by special agents of the Internal Revenue Service for failure to file income tax returns, the agents conducting the investigation requested the defendant’s accountant to leave. The agents led the defendant to believe that he could have his attorney present but not his accountant.’
1. The United States District Court for the Eastern District of New York granted defendant’s motion to suppress the government’s evidence on the ground that the denial of his accountant’s assistance infringed upon the defendant’s right of due process.
2. The right to counsel as specifically incorporated in the sixth amendment, guarantees that a defendant may “have the Assistance of Counsel for his defense” in a criminal trial.
3. This right has protected an accused from being deprived of his life or liberty without the assistance of counsel during his trial.
4. The right to counsel is not limited to the sixth amendment, however, as the Supreme Court has recognized that the presence or absence of counsel at the trial is included in the bearing requirement which, along with notice, constitutes the basic elements of due process.
5. Thus, because of the nature of our adversary system, the complexity of legal proceedings, and the considerable forces of government that are arrayed against the defendant, the right to counsel has become one of the elements of due process of law under the fifth amendment.
6. Originally limited to the presence of an attorney at trial,
7. the right to counsel has expanded, first under the sixth amendment, then under
the fifth amendment, to the pretrial interrogation period. In Escobedo v. Illinois, 8 the Court stated that “. . . the right to use counsel at the:
1. United States v. Tarlowski, 305 F. Supp. 112, 115 (E.D. N.Y. 1969).
2. “An invasion of the individual’s right to determine the conditions under which he will deal with agents of the federal government when under criminal investigation, as is present here, can be considered to be nothing less than a denial of liberty without due process of law.” Id. at 123.
3. U.S. Co NsT. amend. VL
4. Johnson v. Zerbst, 304 U.S. 458, 462-63 (1938); Powell v. Alabama, 287 U.S. 45, 69 (1932).
5. Powell v. Alabama, 287 U.S. 45, 68-69 (1932).
6. Comment, The Continuing Expansion of the Right to Counsel, 41 U. CoLo. L. REv.
473, 478 (1969). See also Gideon v. Wainwright, 372 U.S. 335 (1963).
7. Johnson v. Zerbst, 304 U.S. 458 (1938).
8. 378 U.S. 478 (1964). 1970]
WILLIAM AND MARY LAW REVIEW formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination.”
9. In Miranda v. Arizona, the Court guaranteed the due process and self incrimination
privileges to a defendant by establishing procedural safeguards and standards under which incriminating statements may be used at trial.
10. Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if defendant so desired.”
Throughout the development of the doctrine of right to counsel, however, whether under the sixth, fifth, or fourteenth amendment, the courts have assumed that the counsel with whom the defendant may consult would be an attorney. Miranda, Escobedo, equate the definition of counsel with the defendant’s attorney. Moreover, the term “counsel” as used in relation to constitutional guarantees of federal or state governments has been construed as a duly licensed attorney.’ One departure from that limitation was United States ex rel. Caminito v. Murphy, where the court stated that the defendant’s confession was not voluntary where he was denied access to relatives or friends.
In United States v. Tarlowski, the district court found that historically Id. at 487. 384 U.S. 436 (1966). LId. at 470. Miranda v. Arizona, 384 U.S. 436 (1966). Escobedo v. Illinois, 379 U.S. 478 (1964). See United States v. Wade, 388 U.S. 218 (1967). In Wade, the defendant was denied the presence of his counsel during a “line-up” identification. The Court held that the absence of his attorney at this crucial stage of the proceedings denied the defendant’s sixth amendment rights because of the inherently suggestive nature of an identification proceeding and the possibility of suggestive control by the police investigators over the witnesses. Id. at 224-25. “[That he has the right to the presence of an attorney …. ” Miranda v. Arizona, 384 U.S. 436, 444 (1966); “the accused must be permitted to consult with his lawyer.” Escobedo v. Illinois, 378 U.S. 478, 492 (1964). People v. Cox, 12 IMI. 2d 265, 146 N.E.2d 19 (1957). This principle has been applied where the defendant’s counsel was delinquent in paying his bar association dues. McKinzie v. Ellis, 287 F.2d 549 (5th Cir. 1961). 222 F.2d 698 (2d Cir. 1955). Vol. 11:771 1970]
CURRENT DECISIONS – all persons have “the right to associate with others of one’s own choice at any time . . .” and that right is protected by the fifth amendment. If, therefore, the federal agent limits a person’s freedom of association, “this constitutes an invasion of the liberties guaranteed by the due process clause.. .” of the fifth amendment. Through the right of association, Tarlowski has expanded the doctrine of right to counsel to include the presence of an accountant during a tax investigation.
This approach, however, overlooks the conflict between accountants and attorneys in the federal tax field. In all probability, the presence of an accountant to advise and protect his client from his ignorance during a criminal investigation would be the unauthorized practice of law. Notwithstanding, through the doctrine of right of association, a court has recognized that the right to counsel cannot be filled solely by attorneys and that other advisors must fill this need.
ROBERT B. INGRAM –
305 F. Supp. at 121., Id. at 123. Austin, Relations Between Lawyers and Certified Public Accountants in Income Tax Practice, 36 IowA L. REv. 227 (1950). The public conflict . . . between two great professions over their respective functions in one of their fields of common interest-federal income taxation-has been as fruitless and injurious as it has been unedifying. . . . It has produced strife where there should be peace; accusation, distrust and suspicion where there should be understanding; recrimination . . . where there should be only cordial cooperation and harmony.
Id. at 227. See also E. Griswold, We Can Stop the Lawyer-Accountant Conflict over Tax Practice Now: Four Recommendations, 2 J. TAXATION 130 (1955); Comment,
Relations Between Lawyers and Certified Public Accountants in Federal Tax Practice, 15 AlA. L. REv. 517 (1963), Agran v. Shapiro, 127 Cal. 2d 807, 273 P.2d 619 (1954). The legal profession and legal education have not caught up with the doctrine of right to counsel. There are not enough affordable lawyers to fulfill its promise. Even if such lawyers were available, they would not be intellectually prepared to render the type of legal service most appropriate for many of the non-trial stages of the criminal continuum …Furthermore, the profession must give more consideration to the use of “para”-professionals to render routine legal service in the criminal justice continuum.
These are the challenges of the doctrine of right to counsel. Steele, The Doctrine of Right to Counsel: Its Impact on the Administration of Criminal Justice and the Legal Profession, 23 Sw. L.J. 488, 523 (1969).