I wrote on this blog about the order of December 17, 2014 "sealing" the order itself and the papers upon which it was made, including open public records from other courts and open newspaper articles.
In attorney disciplinary proceedings, the privacy that is protected is the ATTORNEY's privacy, and that privacy should be waiveable at attorney's WISH.
Yet, since the December 17, 2014 order talked about "sealing" and "confidentiality", I had to make sure that I do not violate the court order if I actually publish it - and any papers it is based on. Of course, the court has no right to seal public records from other courts, or newspaper articles in open access, or any other open-access records from third parties, without notification of the custodians or authors of such records.
I tested whether the December 17, 2014 order was, in fact, a "gag order" against me and an attempt of the court to close the courtroom from the public and the media and protect itself and the prosecutor from public scrutiny in a highly sensitive and politically charged case.
In my letter to the court I asked, politely, to unseal any records of my disciplinary proceedings and make them open to the public. Since confidentiality of attorney disciplinary proceeding is for purposes of protecting my privacy, my privacy can be waived for the asking. And I asked , in my letter, which is, in my view, all that is needed.
Rules as to necessity of motions to "unseal" disciplinary records of attorneys are made for the benefit of attorneys and are directed at third parties, not attorneys themselves. Apparently, that was not the view of the court.
The court replied to me in a letter that if I want to unseal the records of my own disciplinary proceedings, I need to do it on a motion, after filing a filing fee of $45, and the court will grant it only if there is "a good cause shown".
In other words, according to the court, it is not my call to waive my own privacy, it is the court's discretion, to allow me only "for good cause shown".
What is this "good cause shown", nobody knows.
The court did not concern itself with the issue that the only requirement for a person to be able to waive HER OWN privacy is to be a COMPETENT ADULT.
A licensed attorney is PRESUMABLY a competent adult.
In fact, any adult is considered competent under New York law unless adjudicated by a court incompetent.
There was never an adjudication (naturally) that I am incompetent.
Thus, under New York law, I can waive my own privacy without requesting anybody's permission.
(By the way, even incompetent adults do not need permission of a court to waive their own privacy, their guardian's permission is enough).
Apparently, that is not what the disciplinary court believes, and the reason why the disciplinary court's "beliefs" are contrary to existing New York law is, apparently, the highly political nature of the proceedings and the court's desire to protect itself and the disciplinary attorneys from public exposure into their procedures allegedly designed to protect that same public.
To make motions to a court that denies motions, even on fundamental constitutional issues, without an explanation, reasoning or analysis, is an exercise in futility. I am not going to be paying the state of New York money in filing fees and making motions ASKING the court to allow me to waive my own privacy when, once again, the condition precedent for me to waive such privacy without anybody's permission is simply to be a competent adult and simply DO it - and I did.
It is interesting to mention that the court "graciously" allowed me to file a motion to unseal the records that are going to be used in the disciplinary proceedings up and until February 6, 2014, without staying hearings in my proceedings.
Yet, hearings in my proceedings will have to be concluded, by order of the same court, by the same date of February 6, 2014.
Moreover, even if I make a motion now, the court, most likely, will not decide it until the proceedings will be over (judging by how much time it took to decide my previous motions), and the issue whether the public and the media should have been allowed into the courtroom, will be then declared "moot" by the court and will be an issue for appellate review.
Of course, I will insist that waiving my own privacy in attorney disciplinary proceedings and inviting members of the public and the press into the courtroom is my due process right that should be available to me for the asking (and I already asked, in a letter to the court) - and it is certainly not subject of the court's discretion "for good cause shown", nor should it be subject to any motion practice.
Courts keep generating more and more materials for my book on disciplinary proceedings in New York.
I wonder if people who write such letters ever think what kind of "trace" in history they are leaving. An infamous trace.
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