FEDERALISM, THE TENTH AMENDMENT AND THE LEGAL PROFESSION - THE POWER OF A FEDERAL JUDGE TO RESTRAIN A CONVICTED ATTORNEY, AS A CONDITION OF PROBATION, FROM PRACTICING IN THE STATE COURTS

• NCJ Number: 43853
• Journal: Nebraska Law Review Volume: 56 Issue: 4 Dated: (1977) Pages: 783-813
• Author(s): M I STEINBERG; J M KONECK
• Date Published: 1977
• Length: 31 pages
• Corporate Author: University of Nebraska
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE SOCIAL POLICY AND CONSTITUTIONAL ISSUES THAT ARISE FROM GRANTING FEDERAL JUDGES THE AUTHORITY TO RESTRAIN ATTORNEYS CONVICTED OF FEDERAL FELONIES FROM PRACTICING LAW IN THE STATE COURTS ARE EXAMINED.

Abstract

FEDERAL JUDGES OFTEN EXERCISE THEIR AUTHORITY TO REQUIRE THAT CONVICTED FELONS, AS A CONDITION OF PROBATION, REFRAIN FROM ENGAGING IN CERTAIN TYPES OF EMPLOYMENT. AMONG THE ARRAY OF POSSIBLE SANCTIONS AT THE DISPOSAL OF FEDERAL JUDGES IN DEALING WITH ATTORNEYS CONVICTED OF FELONIES IS AN ORDER RESTRAINING SUCH DEFENDANTS FROM PRACTICING LAW IN THE FEDERAL AND STATE COURTS AS A CONDITION OF PROBATION. THIS SANCTION, THOUGH APPARENTLY VIABLE, RAISES SERIOUS ISSUES THAT AFFECT THE ESSENCE OF FEDERAL-STATE RELATIONS. SOCIAL POLICY CONSIDERATIONS MUST BE DISREGARDED BY THE COURTS IN THIS MATTER, HOWEVER, BECAUSE THE STATE'S DECISIONMAKING AUTHORITY IS DISPLACED WHEN A FEDERAL COURT FORBIDS AN ATTORNEY TO PRACTICE IN THE STATE COURTS AS A CONDITION OF PROBATION. THIS DISPLACEMENT IS UNCONSTITUTIONAL UNDER BOTH TENTH AMENDMENT AND FEDERALISM ANALYSES. FEDERAL INVOLVEMENT IN THE DIRECT REGULATION OF THE LEGAL PROFESSION HAS TAKEN TWO FORMS: COURT ACTION DESIGNED TO COMPEL THE IMPLEMENTATION OF CONSTITUTIONAL REQUIREMENTS AND SAFEGUARDS IN EXISTING STATE REGULATORY MECHANISMS; AND REGULATION OF THE LEGAL PROFESSION AS AN ECONOMIC ENTITY. THESE EFFORTS ARE ANALYZED IN TERMS OF THE CONSTITUTIONAL ARGUMENTS SET FORTH.