I also mentioned in that blog that Professor James Milles is not shown as a licensed attorney in New York State Attorney Directory.
That brings up an extremely interesting point.
One of the members of the Commission was Peter Skelos. Peter Skelos is a recently retired judge of New York State Appellate Division 2nd Department, one of 4 courts in the State of New York that handle attorney licensing.
I wrote about Peter Skelos on this blog here and here.
On June 3, 2015 Peter Skelos, as part of a judicial panel, issued a decision in the Matter of Joel R. Brandes denying reinstatement to Mr. Brandes, a disbarred attorney, for allegedly engaging in unauthorized practice of law.
Here is what Peter Skelos, together with companion judges, said in that decision:
We find that Mr. Brandes engaged in the unauthorized practice of law during the period of his disbarment when he provided paralegal services via the Internet. Mr. Brandes represents that he has since ceased this portion of his Internet business because it proved unprofitable. Mr. Brandes's provision of such services through his corporation, Joel R. Brandes Consulting Services, Inc., during the period he did operate this portion of his business, violated Judiciary Law § 90(2) and this Court's order of disbarment, which, inter alia, directed that Mr. Brandes "desist and refrain from . . . practicing law in any form, [and] giving to another an opinion as to the law or its application or any advice in relation thereto."
"The practice of law involves the rendering of legal advice and opinions directed to particular clients" (Matter of Rowe, 80 NY2d 336, 341-342). Under the guise of being a paralegal, Mr. Brandes, a noted authority and expert on New York family law and divorce (see Brandes, Law and the Family New York [2d ed rev 1997] and cumulative supplements), for instance, would give advice to an attorney, who had a difficult case. Mr. Brandes would speak to the attorney over the telephone or by e-mail regarding a particular aspect of the difficult case. Upon presentation of the particulars of the case or problem, Mr. Brandes would guide the attorney to the applicable statutes and precedent cases, and offer his past experience. Such rendering of legal advice or opinion constitutes the practice of law, since Mr. Brandes in so doing, exercised professional judgment directed at the legal problem of a particular client, notwithstanding the fact that Mr. Brandes had no direct contact or relationship with the client. In many other instances, Mr. Brandes contracted to draft briefs and other litigation papers for other attorneys. Given the fact that Mr. Brandes was vastly more experienced in matrimonial and domestic relations matters than the attorneys for whom he was performing services, the provision of such services can be deemed to be performing legal services for a client, namely, the attorney for whom he drafted the brief and documents. Such giving of advice and performance of legal services certainly violated the spirit, if not the letter, of Judiciary Law § 478 (see 22 NYCRR 691.10[a]).
Accordingly, we find that Mr. Brandes does not demonstrate the requisite fitness and character to practice law.
ENG, P.J., RIVERA, SKELOS, DILLON and BALKIN, JJ., concur.
He relies upon a case Matter of Rowe and indicates that Mr. Brandes' behavior violated the "spirit, if not the letter" of the criminal statute.
What constitutes a crime in New York is a matter of statute, and it is a matter of statute, because what constitutes a crime requires a clear notice to the public of prohibited conduct BEFORE such conduct is prosecuted, not AFTER a judge, like Peter Skelos decides after the fact which conduct WAS criminal, according to judge's subjective opinion as to the "spirit, if not the letter" of the criminal statutory law.
When the judge rules on the basis of his own perception of the "spirit, if not the letter" of the criminal statutory law, the judge engages in unlawful amendment of a criminal statute which the judge has no authority to do, only the Legislature has authority to change criminal statutes.
Peter Skelos and his fellow judges who authored the Matter of Brandes, obviously, did not care about the law or the doctrine of separation of powers.
The way Peter Skelos decided the Matter of Brandes is not only a violation of separation of powers, but a classic ex post facto law and bill of attainder, both prohibited by the U.S. Constitution that Peter Skelos was sworn to protect as a judge and as an attorney.
But, the beauty of Peter Skelos' behavior is that, when he made his decision in Matter of Brandes, he was not going to adhere to the law he himself unlawfully created against disbarred attorney, when he himself needed law expert testimony.
So, as of June 3, 2015, Peter Skelos MADE the law in the State of New York that provision of services as a law expert by a person who does not have a law license, constitutes the crime of unauthorized practice of law.
Then, the same Peter Skelos, as a member of the Statewide Commission on Attorney Discipline, invites a person who does not have a law license, Professor James Milles, to engage in what Peter Skelos said was unauthorized practice of law in front of the Commission.
Aiding and abetting unauthorized practice of law is a crime.
So, will Peter Skelos be prosecuted for, first, deeming a certain conduct as UPL from the judicial bench, and then inviting, prescreening and allowing expert testimony before the Commission which, according to Peter Skelos' own recent appellate ruling, was a crime of unauthorized practice of law? I doubt it, too many connections in high places.
Double standards in the honorable legal profession are simply screaming, and Peter Skelos appears to feel absolutely immune in anything inappropriate he is doing, like his recent jumping off the bench after the indictment of his brother, at that time the speaker of NY Senate, in order to be able to catch a business opportunity in a law firm favored by the new Speaker of the New York State Legislature.
I am sure that, if sued as a member of the Commission, Peter Skelos will claim some kind of immunity for malicious and corrupt, and discriminatory acts.
So, Peter Skelos as a judge said a disbarred attorney Joel R. Brandes, an expert in law, may not provide expert services, it is unathorized practice of law.
Peter Skelos as a member of Statewide Commission on Attorney Discipline established by Chief Judge of the State of New York, invited to testify a law expert James Milles, who is not an attorney,
to testify to the Commission, thus providing to the Commission legal services as a law expert (in accordance with Peter Skelos' decision as a judge in the Matter of Brandes), and whether that law expert service to the Commission was for a fee or not, doesn't matter.
Yet, I will make it a point to notify Joel R. Brandes and his attorney as to the interesting developments in:
- Mokay v Mokay - a Delaware County Supreme Court case, Index No. 2007-695 - where Judge Kevin Dowd, on June 23, 2014, called it "mind-boggling" and "bizarre" and rejected my argument when I pointed out exactly what Peter Skelos said in the Matter of Brandes, that drafting of legal papers by a paralegal constitutes unauthorized practice of law; and allowed attorney Richard Harlem, son-of-a-judge, to charge legal fees for legal services of his unlicensed paralegal Patrick Orr in drafting legal papers, an affirmation and a memorandum of law;
- Neroni v Zayas - a U.S. District Court for the Northern District of New York case, Case No. 3:13cv127 - where Judge Lawrence Kahn claimed, dismissed claims that what is not enforced as UPL against never-licensed individuals, is enforced as UPL against disbarred attorneys, pointing out specifically at paralegal and law expert services; Judge Kahn while dismissing the pre-enforcement claims challenging UPL statutes for selective enforcement, vagueness and overbreadth on March 31, 2014 and on June 4, 2015, claimed that it is not reasonable for Mr. Neroni to think that UPL statutes will EVER be interpeted by courts as including work as a law expert;
- Matter of Brandes - a NYS Appellate Division 2nd Department case where Judge Peter Skelos with companion judges ruled that what Judge Dowd said was not UPL for the person who never had a law license, is UPL for a person whose law license was revoked, the exact claim that Judge Kahn rejected as unreasonable;
- Testimony as a law expert of non-attorney Professor James Milles before the Commission, including Peter Skelos, by invitation on August 4, 2015, 4 days after Peter Skelos' retirement from the bench where he made a decision in Matter of Brandes two months prior - where Professor James Milles is not an attorney, is giving expert testimony to the Commission, by Commission's invitation which qualifies as being the Commission's expert and is, according to the ruling of Commission member Peter Skelos made against Mr. Brandes, engaging in unauthorized practice, which the same Peter Skelos, as member of the Commission has actively solicited, aided and abetted
I hope Mr. Brandes can reinstate his law license using these cases, and can use them to make a successful motion to vacate the denial of reinstatement, based on new evidence.
And as to Peter Skelos and his double standards and unlawful behavior - it appears it runs in the family. After all, denying to a disbarred attorney what Peter Skelos solicited from an unlicensed law professor is not the first appearance of impropriety that Peter Skelos, brother of the recently indicted Dean Skelos and uncle of the indicted Dean Skelos' son, has committed - knowing that his own and his family members' high status and connections will shield him from any accountability.
Runs in the family, doesn't it?
And, the right person to sit on this particular Commission.