The law in the State of New York prohibits unauthorized practice of law.
The law does not define what practice of law is.
The law does not really define what unauthorized practice of law is, either - but the statute for unauthorized practice of law exists anyway, it is a criminal statute and it is applied by courts on a case by case basis, with notice given to criminal defendants in arrears - we caught you and NOW we say that THIS is unauthorized practice of law.
I will illustrate in this blog post how the same conduct is considered unauthorized practice of law for two disbarred attorneys and legitimate conduct for which an attorney can charge a client a legal fee when the very same thing is done by a person who has never had a law license.
On June 23, 2014 I appeared in front of Judge Kevin Dowd of Chenango County Supreme Court who has won his seat in a "landslide" election without any opposition - so he needed only one vote to win that election, and that vote could have been his own.
At the hearing on June 23, 2014, attorney and son-of-a-judge Richard Harlem, who has his law office located in Oneonta, NY (Otsego County), provided an Affirmation to the Court with attorney fees that Richard Harlem wanted the court to award against my client, and husband, Frederick J. Neroni.
Richard Harlem then testified at the hearing about the contents of the Affirmation, subject to my cross-examination.
Here is part of my cross-examination of Richard Harlem on June 23, 2014 in the Mokay action:
Richard Harlem's Affirmation stated that Patrick Orr, his paralegal who is not licensed to practice law, was drafting legal memorandums and pleadings for Mr. Harlem.
I requested Judge Dowd to strike these "legal fees" as illegal fees, because Patrick Orr engaged in unauthorized practice of law (UPL, a crime of misdemeanor punishable by up to a year in jail), and attorney Richard Harlem aided, abetted and profited by Patrick Orr's UPL:
I made the following argument to Judge Kevin Dowd about Attorney Richard Harlem's employee engaged, at Attorney Richard Harlem's direction, in the crime of unauthorized practice of law, and Attorney Richard Harlem aiding and abetting that crime, at a profit to himself and while committing his own crime (aiding and abetting commission of a crime is a crime of its own).
Here is Judge Kevin Dowd's response to that argument:
First, Judge Dowd pronounces an opinion that he finds nothing out of the ordinary in an attorney making his paralegal engage in a crime of UPL and then charging the results of that crime to his own clients and requesting the court to charge the result of that crime to his opponent in litigation.
Judge Dowd claims that it is done all the time, it is nothing unusual, so it should not even be mentioned.
Then, Judge Dowd offers his own unsworn testimony from the bench in support of Mr. Harlem, claiming that he himself drafted legal documents without being admitted to the bar, there is nothing about it, everybody does it, and that it is "mind-boggling" for me even to raise that issue as improper.
Apparently, all it takes to boggle Judge Dowd's mind in the absence of his "brain" is citing applicable law about a son-of-a-judge.
Here is Judge Dowd's unsworn testimony from the bench about HIS unauthorized practice of law - to prove that what Richard Harlem and Patrick Orr did is nothing out of the ordinary and, thus, if Judge Dowd engage in UPL all those years ago, it is legitimate for Richard Harlem and his employee to violate that criminal law now.
What boggled the mind of Judge Kevin Dowd, also boggled the mind of Senior Judge Lawrence Kahn, of the U.S. District Court for the Northern District of New York.
Remember, I made an argument to Judge Dowd that what he considers lawful behavior of paralegal Patrick Orr and his boss, attorney and son-of-a-judge Richard Harlem, would have been considered a crime of unauthorized practice of law (UPL) for Frederick J. Neroni, a disbarred attorney (disbarred BECAUSE of the Mokay saga and as a direct result of Richard Harlem bribing-in-kind the disciplinary prosecutor, for which there is documentary evidence).
Here is my argument about that once again:
I made the same argument on behalf of my client and husband Frederick J. Neroni in his lawsuit Neroni v Zayas in federal court - that New York government discriminates against suspended and disbarred attorneys by charging against them as the crime of unauthorized practice of law (UPL) what is considered legal conduct to people who never had a law license.
Judge Lawrence Kahn found my arguments unreasonable and dismissed that claim, and all other claims accompanying and resulting from that claim.
Here is what Judge Kahn stated, as of March 31, 2014, three months before the mind-boggling decision of Judge Dowd on June 23, 2014 that Patrick Orr could draft legal papers, chargeable to clients as a legal fee, and that would not be any kind of impropriety or, God forbid, a crime of UPL, nor would it be a crime of aiding and abetting UPL by Mr. Harlem, Patrick Orr's boss.
Please, note that Judge Kahn claims very clearly that what Mr. Neroni said he could be prosecuted for as unauthorized practice of law ("working in a law office in a non-attorney capacity") was not, in Judge Kahn's opinion, practice of law, cannot be charged as unauthorized practice of law, and Mr. Neroni's (or my own, as his counsel in that litigation) interpretation of the UPL statute is unreasonable, and because of it, Mr. Neroni's challenge (facial and "as applied to him") of constitutionality of the UPL statutes and for an injunction to stop state officials from enforcing UPL statutes against Mr. Neroni based on such legitimate non-practice-of-law conduct, was denied.
Mr. Neroni was subsequently punished with an anti-filing injunction by the Chief Judge of Judge Kahn's federal court who claimed, on his own motion, that Mr. Neroni's entire lawsuit Neroni v Zayas was frivolous, including the above claims (while the remaining claims were at that time still pending in front of Judge Kahn and with me as Mr. Neroni's counsel; that fact did not bother Judge Sharpe who acted over the heads of both Judge Kahn and me as Mr. Neroni's counsel and served Mr. Neroni directly with his "sua sponte" action).
Well, here comes a bummer.
On June 3, 2015 New York State Supreme Court, Appellate Division Second Judicial Department denied reinstatement to a disbarred attorney, a well-known expert in the field of family and matrimonial law, Joel R. Brandes.
In its decision denying reinstatement to a disbarred attorney, the 2nd Department claimed that when the disbarred attorney drafted legal papers as a paralegal (and helped other attorneys as a legal expert - compare with the piece from Judge Kahn's decision above), he engaged in - guess what? - unauthorized practice of law.
Here is the decision, in full:
|Matter of Brandes, Joel R.|
|Motion No: 1999-07006|
|Slip Opinion No: 2015 NY Slip Op 81096(U)|
|Decided on June 3, 2015|
|Appellate Division, Second Department, Motion Decision|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|This motion is uncorrected and is not subject to publication in the Official Reports.|
Supreme Court of the State of New York
Appellate Division: Second Judicial Department M190260 E/ct RANDALL T. ENG, P.J. REINALDO E. RIVERA PETER B. SKELOS MARK C. DILLON RUTH C. BALKIN, JJ.
|1999-07006 In the Matter of Joel R. Brandes, a disbarred attorney. (Attorney Registration No. 1168483)||DECISION & ORDER ON MOTION |
Motion by Joel R. Brandes for reinstatement to the Bar as an attorney and counselor-at-law. Mr. Brandes was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on March 19, 1969. By opinion and order of this Court dated April 28, 2002, Mr. Brandes was disbarred upon a finding that he was guilty of five charges of professional misconduct (Matter of Brandes, 292 AD2d 129). By decision and order on motion of this Court dated October 16, 2002, Mr. Brandes's motion for reargument or for leave to appeal to the Court of Appeals, was denied. By decision and order on motion of this Court dated November 5, 2009, Mr. Brandes's first motion for reinstatement was denied. By decision and order on motion of this Court dated April 26, 2011, Mr. Brandes's second motion for reinstatement was held in abeyance and the matter was referred to the Committee on Character and Fitness to investigate and report on his current fitness to practice law. By decision and order on motion of this Court dated December 17, 2012, this Court, inter alia, denied Mr. Brandes's second motion for reinstatement. By decision and order on motion of this Court dated December 5, 2013, Mr. Brandes's motion for for leave to file a motion for reinstatement prior to expiration of the one-year period pursuant to 22 NYCRR 691.11(e)(1) was denied. By decision and order on motion of this Court dated April 8, 2014, Mr. Brandes's third motion for reinstatement was held in abeyance and the matter was referred to the Committee on Character and Fitness to investigate and report on Mr. Brandes's current fitness to practice law, including but not limited to, his future intentions with regard to the paralegal services portion of his Internet business. Upon the papers filed in support of the motion and the papers filed in relation thereto, and upon the report of the Committee on Character and Fitness and the exhibits annexed thereto, it is ORDERED that the motion is denied. 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 (that's what Patrick Orr did for attorney Richard Harlem - and Judge Dowd considered it to be perfectly normal, reasonable, not UPL, and "everybody do that" - TN). 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. ENTER: Aprilanne Agostino Clerk of the Court
March 31, 2014 - U.S. District Court for the Northern District of New York - Judge Lawrence Kahn - disbarred attorney Frederick J. Neroni is claiming that he may be charged for UPL for working in a law office in a non-attorney (paralegal capacity) - Judge Kahn said it is not the practice of law and such an interpretation is unreasonable - and tosses constitutional challenge to overbroad UPL laws, as interpreted by New York courts and as applied to Mr. Neroni.
June 23, 2014 - Judge Kevin Dowd, of Chenango County Supreme Court - allows as legitimate and not UPL, drafting by a paralegal Patrick Orr of legal papers that his boss attorney Richard Harlem then charged, through a court order of the same Judge Dowd, against Frederick J. Neroni (disbarred because of Richard Harlem's timely bribe to Mr. Neroni's disciplinary prosecutor), and charged as legal fees.
June 3, 2015 - A panel of the Appellate Division 2nd Department which included judge Peter Skelos, member of the Statewide Commission for Attorney Discipline that was supposed to toil on how to make attorney discipline in New York more uniform, more efficient, and more FAIR
(who quickly retired since then as part of epidemic of early retirements among New York judges - Carl Becker, Peter Skelos, Gail Prudenti and right after his brother, former NYS Senate majority leader was indicted by the feds for corruption),
- denies reinstatement to a renowned legal expert because that expert worked as an expert (see Judge Kahn's opinion that it is unreasonable to claim that working as a legal expert is UPL), and because he did what paralegals do all the time, according to Judge Dowd and which should not even reasonably be considered the practice of law, according to Judge Kahn.
Of course, Judge Skelos and his companion judges on the panel that denied reinstatement to Joel R. Brandes, claimed in their decision that Mr. Brandes violated the "spirit, if not the letter" of the UPL statute.
Now criminal defendants must look to "spirits" and not the letter of statutory law (and criminal law in New York is ALL statutory law) in order to discern what will courts "find" to be a violation of that "spirit" - whatever it is.
I guess, the bummer produced by Peter Skelos may undo the bummers produced by Judge Dowd in Mokay v Mokay in Delaware County Supreme Court and by Judges Kahn and Sharpe in the U.S. District Court for the Northern District of New York.
Because it affects not only a Neroni who is not entitled to the rule of law anyway - inconsistent and not identity-blind application of criminal law hurts everyone in New York.