"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
case illustrates to me the serious consequences to the Bar itself of not
affording the full protections of the First Amendment to its applicants for admission.
For this record shows that [the rejected attorney candidate] has many of the
qualities that are needed in the American Bar. It shows not only that [the
rejected attorney candidate] has followed a high moral, ethical and patriotic
course in all of the activities of his life, but also that he combines
these more common virtues with the uncommon virtue of courage to stand by his
principles at any cost.
It is such men as these who have most greatly honored the profession of the
law. The legal profession will lose much of its nobility and its glory if it is
not constantly replenished with lawyers like these. To force the Bar to become a
group of thoroughly orthodox, time-serving, government-fearing individuals is to
humiliate and degrade it.” In
Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429
(1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong
dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan,
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
Monday, March 31, 2014
A federal court has ruled that a civil rights lawsuit for money damages based on post-disbarment investigations by a disciplinary committee's attorney may proceed
The court rejected Defendant's claims for Younger abstention, quasi-judicial immunity and prosecutorial immunity, finding that post-disbarment, the Younger abstention does not apply, and that Defendant Zayas' actions in conducting post-disbarment investigations were neither judicial nor prosecutorial, but investigative, and thus not covered by immunity doctrines.
The civil rights lawsuit for money damages against Defendant Zayas for his participation in post-disbarment investigations proceeds.
The court also rejected the claim of judicial and "quasi-judicial" defendants, the Chief Justice of the Appellate Division, 3rd Department the Hon. Karen Peters, the Chairperson of the Committee (at that time) Monica Duffy and the attorney for the Committee Steven Zayas that the amendment of the Civil Rights Act, 42 U.S.C. 1983, through the Federal Courts Improvement Act of 1996 prohibits actions for injunctive relief against judicial and quasi-judicial officers. The court has ruled that such a prohibition only applies to judicial defendants acting in their judicial capacities. The court ruled that post-disbarment investigations are not judicial proceedings and are, thus, not covered by the anti-injunction prohibition of FCIA Section 309(c).
Additionally, the court allowed to proceed the portion of the same civil rights lawsuit for declaratory and prospective injunctive relief against New York State Attorney General Eric T. Schneiderman, sued in his official capacity as the public official authorized to bring civil and criminal actions for unauthorized practice of law (UPL) and Delaware County (NY) District Attorney Richard Northrup who is the public official authorized to prosecute UPL at the County level.
Sunday, March 30, 2014
If attorney regulation in New York does not regulate the most powerful attorneys, why regulate at all?
That's not what is happening in New York.
Earlier in my posts I described the situation with selective enforcement of attorney regulation against sole private attorneys who are either engaged in civil rights cases or are whistleblowers of official, and especially, judicial misconduct.
There is another problem, that attorneys working for the government in the State of New York are de facto and de jure immune from the reach of attorney regulation.
Since attorneys working for the government may cause the worst damage to the public, it would be logical to protect the public from such powerful attorneys more, not less, or not at all, as it is done in the state of New York.
Here is how it works.
When an attorney working for the government is sued, usually in a civil rights action, or under a fraud or fraud upon the court theory in the state action, that attorney immediately invokes absolute prosecutorial immunity.
Absolute prosecutorial immunity was conferred upon government attorneys by the U.S. Supreme Court in the belief that availability of attorney discipline against prosecutors is enough to deter their misconduct and protect the public, and thus giving individual victims of such misconduct a right of private cause of action against such government-employed attorneys is not warranted.
Yet, the result down the road is diametrically opposite from the one the U.S. Supreme Court was relying upon when it gave governmental attorneys absolute immunity in the first place.
Disciplinary bodies use the fact that cases against governmental attorneys are dismissed on immunity grounds and do not prosecute them, while the same disciplinary bodies vigorously and, I might say, viciously prosecute private attorneys for the same allegations of misconduct, where private attorneys did not have such immunity defense available and were prosecuted by state or federal courts in civil actions.
Moreover, disciplinary bodies are reluctant to commence disciplinary actions against governmental-employed attorneys, based on their unwritten policies of selective prosecution or non-prosecution of government officials, see series of recent articles in Propublica.org.
At the same time, a private attorney who has had a civil judgment against him are frequently deprived of even a due process hearing before he is stripped of his license, where appellate courts apply collateral estoppel to the decision of the court below. I have covered in my earlier posts the discrepancies in the standards of proof in how it is done.
Now, the harm that can be caused to members of the public by a private solo attorney and by a public prosecutor, whether criminal or civil, is incomparable.
Yet, the harm caused by the public prosecutor remains not addressed by authorities while often the same authorities are vigorously pursuing private lawyers to make an example of them and to demonstrate to the public that attorney regulation works and the public is protected.
Yet, it is far from being the truth.
Let's consider indisputable facts and applicable statistics and see how many attorneys in New York are, by the most conservative standards, immune from the reach of Attorney Disciplinary Rules, and thus, how many attorneys in New York can do whatever they want and cause whatever damage to the public they may choose, negligently or deliberately, to cause, with complete impunity.
I will start from the county level.
There are 62 counties in the State of New York.
There is a County attorney in each county who is covered by absolute prosecutorial/discretionary immunity.
There is a district attorney plus a number of assistant district attorneys in every county who are similarly immune. If a county has at least two assistant district attorneys, a district attorney, a county attorney and two assistant county attorneys, your number of immune attorneys per county is 372. These people can do anything to you and you cannot sue them, because they are immune, and professional conduct committees don't reach them, because of their unspoken policy of not disciplining those working for the government.
There are 1,200 judges in the New York State system of court administration.
Each of such justices have law clerks. Thus, you can add 1,200 attorneys to the previous 372 who are immune from discipline in New York. Some court employees who are not law clerks are licensed attorneys, and there is no published statistics on how many court employees actually are attorneys. So, you can add an unknown number of court employees who are attorneys to your number of attorneys who can do anything to you with impunity.
All attorneys employed in the unified New York state court system are covered by absolute judicial immunity spread upon them to cover their litigation-associated duties, which is practically everything they do.
In other words, if any attorney working for the court system screwed up your case, negligently or intentionally, you are out of luck to go against that attorney individually, he or she is covered by absolute judicial immunity. This situation was criticized and even ridiculed by scholars, but nothing has changed in application of judicial immunity to non-judicial court personnel.
Next comes the state-level agencies.
You might be surprised how many agencies, all backed up by taxpayers' money, New York even has.
All of them employ lawyers. A lot of lawyers. And all those lawyers are immune from the reach of attorney disciplinary rules.
There is no published statistics as to how many lawyers work for each of New York agencies, but it is definitely not one and not two per agency. Let's say, conservatively, that it is 10 lawyers per agency, and you have another thousand or more attorneys who are completely immune from discipline.
The most powerful group of lawyers in New York who can do the most damage and is still immune from the reach of attorney discipline is New York State Attorney general and his team of 650 assistant attorneys general, all lawyers.
The problem with this group of lawyers is in its rampant conflicts of interest in representing diametrically opposite groups of clients, with diametrically opposite interests, and who are, by the court-invented law, the sole decision-makers as to whether their representation is conflicted or not.
Any private attorney in New York cannot be the sole decision-maker as to whether he or she does or does not have a conflict of interest. Private attorneys are scrutinized for conflicts by the public, their own clients, Professional conduct Committees and the Courts.
The "People's Lawyer" duty of the New York State Attorney General is the one duty that is being disproportionately or, rather, exclusively, pandered to the voters during election campaigns for NYS AG's position, while other functions are downplayed or completely omitted.
In his election campaign, the current NYS Attorney General Eric T. Schneiderman put the following statement onto the front page of his election website:
Now, would you be willing to vote for this man if he would state the following on the front page of his election website instead?
- I WILL FIGHT AGAINST YOU IN CIVIL RIGHTS LAWSUITS BROUGHT BY YOU, USING AGAINST YOU YOUR OWN HARD-EARNED TAXPAYER MONEY;
- I WILL REPRESENT AGAINST YOU THE CORRUPT JUDGES YOU SUED AND WILL FIGHT YOU TOOTH AND CLAW TO DISMISS LAWSUITS AGAINST SUCH CORRUPT JUDGES CLAIMING THAT NO MATTER WHETHER THOSE JUDGES ARE IN FACT CORRUPT, THEY ARE ABSOLUTELY IMMUNE FROM YOUR LAWSUIT AND YOU MUST REMAIN VICTIMIZED AND WITHOUT ANY REMEDY;
- I WILL REPRESENT GOVERNMENT OFFICIALS WHO VIOLATED YOUR CONSTITUTIONAL RIGHTS AGAINST YOU, WHILE YOU ARE SCRAMBLING TO FIND AN ATTORNEY WHO IS NOT AFRAID TO SUE THE GOVERNMENT OR TO PAY FOR HIS SERVICES;
- I WILL INVOKE EVERY JUDGE-CREATED DOCTRINE THERE IS ON BEHALF OF GOVERNMENTAL OFFICIALS TO PROTECT THEM FROM YOUR LAWSUIT, NO MATTER WHAT KIND OF FRAUD OR CONSTITUTIONAL VIOLATION THEY COMMITTED AGAINST YOU AND NO MATTER HOW MUCH YOU WERE HARMED BY THEM;
- I MIGHT EVEN ASK THE COURT TO HAVE YOU PAY THE LEGAL FEES OF GOVERNMENT OFFICIALS YOU SUED FOR FRAUD AND CIVIL RIGHTS VIOLATIONS
I highly doubt you would have voted this guy into office had you known what he is about to do to you.
Yet, that's exactly what the New York State Attorney General does, invoking Public Officers Law 17 for his actions.
This is the NYS Attorney General's claimed duties as the State's Chief Legal Officer which are not discussed in any detail on the NYS Attorney General's election website.
Let's look at the duties, and conflicts, of the New York State Attorney General more closely.
His duties include:
As Lawyer for the People
As Chief Legal Advisor for the State
To fight corruption in the state government
To represent public officials accused by citizens of corruption against such citizens and at those citizens’ expense
To conduct investigations and criminal prosecutions of fraud and corruption in the government
To represent government officials the NYS AG is supposed to investigate and prosecute
To oust out of office usurpers of public office on writs of quo warranto
To represent government officials claimed by citizens to be usurpers of public office against lawsuits where such claims are raised by the citizens, and do that at taxpayers’ expense
To represent residents of the State of New York in class actions and bind them (presupposes undivided loyalty of NYS AG as the class action attorney to each and every member of the class)
To represent government officials against citizens who sued them, where some or all of the plaintiffs may be members of the class on whose behalf the NYS AG is suing in other civil actions
Once again, had Mr. Schneiderman presented his full duties as New York State Attorney General to the public during his election campaign, he would have had a public outcry on his hands and not an election into office.
In fact, these duties represent irreconcilable conflicts of interest for the New York State Attorney General, imposed upon the NYS AG legislatively.
Let's not forget that NYS AG is a licensed attorney, that his license is regulated by state judiciary, and that NYS AG represents state judges in lawsuits against them.
Under these circumstances it becomes a rhetorical question, which part of the table above, left or right, outweighs the other.
With both duties equally upon NYS AG pursuant to law, NYS AG's own license will be at stake if he steps out of line and prosecutes who he is expected to protect, and their relatives, and their friends.
Thus, supposed independence of an elected public official turns into a farce.
It is my opinion as a citizen, resident of the state of New York and a lawyer that Mr. Schneiderman has duped the voters by not presenting to them his full scope of duties when he promised to them that he is going to fight fraud and corruption in the government and protect the public, while he knew very well that it is going to be his duty to actually at the same time investigate and prosecute those alleged fraudsters and those alleged corrupt public officials, and defend those same alleged fraudsters and those same alleged corrupt public officials from the rightful civil rights lawsuits of citizens.
The situation is aggravated by the fact that New York State courts have ruled that New York State Attorney General is the only person who can decide whether he does or does not have a conflict of interest in a certain representation.
I raised the issue that NYS AG is representing people accused of fraud and constitutional violations while he has a duty to prosecute those same people for those claims, in federal court.
The judge called the situation "unsettling", but not unconstitutional. The appeal from that decision was dismissed on Younger abstention grounds, without reaching the merits of the case. Thus, the issue was not addressed and a precedent was not created.
The situation with potential conflicts of New York State Attorney General is becoming most interesting when it appears that judges do recognize that a conflict exists - when it concerns judges personally in their own lawsuits. For example, when Judge James Tormey was sued in his official and individual capacity, along with several co-defendants, the judge raised the issue that NYS AG has a conflict of interest representing all defendants at the same time and that Judge Tormey will be deprived of effective representation of counsel under such circumstances.
The interesting part was that when that same judge James C. Tormey was, interestingly, assigned to a case of judicial retaliation against Judge Carl F. Becker in the fall of 2011, a month after the lawsuit against Judge Tormey himself in federal court was finally settled (according to court papers available for public access on pacer.gov), Judge Tormey appeared to have completely forgotten that he claimed on his own behalf that NYS AG's representation of himself was conflicted, omitted to mention that NYS AG represented the judge quite recently when the judge was sued in his individual capacity (which was grounds for disqualification of NYS AG in appearing in front of Judge Tormey in that lawsuit on behalf of Judge Becker under state Canons and court rules), and ruled that NYS AG is the sole decision-maker as to his own conflicts of interest and that there is no conflict when NYS AG, at the same time, was representing Department of Environmental Conservation before Judge Becker, and is representing Judge Becker, sued in his individual capacity, in a lawsuit before Judge Tormey.
No wonder that Judge Tormey ruled for NYS AG since NYS AG was Judge Tormey's recent counsel and remains such counsel by law.
New York State Attorney General, I must mention, also represented Professional Conduct Committee when I removed my disciplinary action to federal court and argued for its remand back to the state court.
When NYS AG was quite recently turned into the Professional Conduct Committee by my husband for representing a private attorney, spouse of judge Michael Coccoma, on claims pertaining to her actions as a private attorney, while NYS AG has no authority to represent private attorneys at taxpayers' expense at all, Professional Conduct Committee refused to investigate and prosecute its own counsel.
Thus, NYS AG participates in what may be considered attorney misconduct and the very conduct that he promised voters to fight, but there is no disciplinary body in the State of New York which is willing to take NYS AG on for such apparent misconduct.
In New York State AG's case, what we have is a group of 650 lawyers with an elected public official heading that group, which is officially, legislatively, allowed to engage in conflicted representation which is clearly prohibited by attorney disciplinary rules, and NYS AG has an absolute power to decide whether he is conflicted or not. No other attorney in the state of New York is allowed to make such decisions for himself, without any possibility of judicial review or oversight.
The justification for attorney regulation, as declared to the public, is to protect the public from unfit lawyers.
Apparently, the public is not entitled to be protected from such unfit lawyers if they work for the government.
To me, if government-employed attorneys are unreachable by rules of Professional Conduct, the whole claim of protection of the public is a fake, as is the declared basis for attorney regulation in the first place.
Apparently, attorney regulation in New York is nothing more than a smokescreen for a state-authorized witch-hunt against attorneys who dare criticize official misconduct.
The public, in the meantime, remains not only unprotected from misconduct of thousands of powerful attorneys covered by complete impunity, but is duped into the false sense of security through the sham of attorney regulation claiming that the public is in fact protected from actions of unfit attorneys, which is even worse.