I am starting to post my analysis of the Report, while I am still waiting for the New York State Court Administration to satisfy my FOIL request that I made for records of the Commission on August 23, 2015, over a month ago.
There was certain very important issues that were raised during public hearings, and by the decision of the U.S. Supreme Court in February 25, 2015 that ruled that "state" licensing boards run the way attorney disciplinary boards are run in New York, are in violation of federal antitrust law, which is not only a civil liability for the state, but also a federal crime.
So, what did the Report say about pivotal issues pertaining to attorney disciplinary system?
1/ where the "practice of law" is not clearly defined, the government has no right to regulate the practice of law, or consider discipline during such regulation that affects people's reputation and livelihood
Lack of clear definition of the practice of law is not even touched upon in the Commission's Report.
Where there is no clear recognition of a problem - and a problem of a constitutional dimension - the problem will persist.
2/ There is selective non-enforcement of attorney discipline in New York against politically powerful, wealth and/or well connected attorneys - that concern was expressed in oral testimony in public hearings before the Commission
The words "selective enforcement", or its analysis, do not appear anywhere in the Report.
Where there is no clear recognition of a problem, there will be no efforts to correct it, and it will persist.
The Commission made an extraordinary recommendation though, after acknowledging that prosecutorial misconduct is not addressed by attorney discipline, but still stubbornly refusing to use the term "selective non-enforcement" against themselves (where members of the Commission ARE members of those very same attorney disciplinary committees that are engaged in non-prosecuting criminal prosecution for misconduct leading to wrongful convictions).
The Recommendation of the Commission on pages 76-77 of the Report is that criminal courts should make automatic referrals of criminal prosecutors to disciplinary committees, AND THEN they will prosecute criminal prosecutors.
Moreover, the Commission tried to, at the very same time,
- derail the efforts of the NYS Legislature to establish a separate Commission for Prosecutorial Misconduct - because members of the Commission, members of attorney disciplinary committees engage in selective non enforcement of attorney discipline against criminal prosecutors who bring about wrongful convictions, and
- pledge that members of the Commission/members of attorney disciplinary committee will do their discretionary job when they have a court referral against a prosecutor to protect themselves;
- request district attorneys to "address the issue internally" - translation into plain English - disciplinary committees humbly ask the district attorneys to correct their own misconduct in which DAs engaged to drum up wrongful convictions and get political points to be elected as judges, and which was not corrected so far for years and resulted so far in over 3,000 of wrongful convictions that were documented, and how many are still undocumented; and
- "stress" that the vast majority of what is claimed to be prosecutorial misconduct is not malicious, but is "good faith error" - which is a self-serving explanation of why the Commission members/members of disciplinary committees do not prosecute prosecutors for misconduct leading to wrongful convictions is clearly defied by the number of those wrongful convictions and by findings made by CIVIL RIGHTS GROUPS, instead of committees, that prosecutorial MISCONDUCT, and not good faith errors, have caused the wrongful convictions.
Here is the exact statement from the Report, pages 77-78.
In sum, the Commission tells the State that it will be cheaper to leave things as they are with non-prosecution of prosecutors for wrongful convictions, because:
- Creating a separate Commission for Prosecutorial Conduct will "add another bureaucracy level" and will cost more money;
- prosecutors can deal with the "issue" "internally" - they are doing it beautifully so far;
- assures the State that members of the Commission who are members of the disciplinary committees will start doing their jobs in disciplining prosecutors on referrals from courts only, and not on their own investigations, as they do against other "mere mortal" attorneys; and
- and provide an immediate path and hint to Commission members who are judges to derail that "referral path" by stating that judicial decisions mostly find "good faith errors" and not malicious misconduct in prosecutorial conduct that have led to thousands of wrongful convictions so far - practically prompting courts to continue to do the same thing of whitewashing wrongdoing of criminal prosecutors.
By the way, the request for referral from courts in order to commence disciplinary proceedings against prosecutors is quite an admission that attorney disciplinary committees (including Monica Duffy, member of the Commission who both co-authored the Report and made a statement at the Albany public hearing that her committee does not engage in selective non prosecution of prosecutors).
A court referral IS NOT a pre-requisite for commencement of attorney disciplinary investigation or prosecution, it is within the discretion of the committees, and Monica Duffy's committee explained that same thing to the me many times.
And - wait a minute - why this recommendation TO JUDGE LIPPMAN that the current Bill S24, a Legislative initiative, should not be approved BY THE NEW YORK STATE LEGISLATURE?
Here are the declared goals of the Commission, charged by Lippman:
Lippman did not charge the Commission, nor did he have authority as New York Chief Judge to charge the Commission, to provide recommendations to New York State Legislature whether to cancel the pending legislation, Bill S24 - which Commission is actively doing by its "Recommendations".
By the way, a witness testifying in Buffalo, testified about the lobbying efforts by the DA's association in NYS Legislature to derail that particular Bill S 24.
Moreover, what Mr. Bastuk was proposing was meritorious and was proposing the very opposite of what the Commission ultimately proposed.
Mr. Bastuk said - why wouldn't the committees use as a basis to start investigation of a prosecutor for wrongful conduct not REFERRALS of courts, but DISMISSALS of federal civil rights actions on the basis of prosecutorial immunity - because, even though Mr. Bastuk did not say that, but I will add as a civil rights lawyer, prosecutorial immunity was given on a PRESUMPTION that prosecutorial discipline, as an alternative remedy, is available.
And, there is a recent precedent in New York Commission for Judicial Conduct to commence investigation and disciplinary prosecution of prosecutorial misconduct - the removal of Judge Bryan Hedges where a lawsuit against him for the same grounds upon which he was removed was precluded by statute of limitations.
The Commission heard that testimony and engaged in their own lobbying to derail Bill S24 - under the guise of "Recommendations" for, allegedly
3/ There is a problem with separation of powers where in the disciplinary proceedings the same body (the licensing court) investigates, prosecutes (through its "arm" - the committees") and adjudicates attorney disciplinary proceedings.
Words "separation of power" or discussion of this problem do not appear anywhere in the Report.
There is a reference in the Report to recommendations by attorneys from ABA Standing Committee (see Report, Appendix 11 to the Report posted separately), and those recommendations mention that adjudicative and investigative functions should not be handled by the same body, but the report does not go into any meaningful analysis of these recommendations and does not attempt to end the separation of power problem in the attorney disciplinary proceedings.
On the opposite, the Report, on page 70, makes this astounding statement:
This says a lot.
If there is no problem with separation of powers, then the prosecuting body is ALREADY subject to the "Executive Law regarding compliance with ... Freedom of Information laws", as criminal prosecutors are, and the law it is irrelevant what kind of "additional burden" FOIL puts on the committees, because it has already been ruled by New York courts that FOIL requests are presumed as a matter of law to be made in public interest, whether response to FOILs burdens the committees or not.
At this time, disciplinary committees wear three hats at the same time:
- the investigative hat;
- the prosecutorial hat; and
- the judicial hat
and use them circumstantially, as it serves them better.
For purposes of filing a petition with the court and prosecuting an attorney, they will claim they are executive branch, because a court cannot be a party in its own proceeding.
Then, for purposes of ducking attorney's attempts to get access to his/her own file in the committee, the judiciary hat is donned by the committee and the committee will claim that, as an "arm of the court", they are not subject to FOIL - even where criminal prosecutors are part of executive branch and are subject to FOIL.
Then, when sued in civil court for civil rights violations, disciplinary committees will claim, intermittently, as it fits their circumstances better, either prosecutorial or "quasi-judicial" immunity for malicious and corrupt acts during such proceedings.
Members of the Commission who are also members and attorneys for disciplinary committee know that well and do these tricks often. In fact, Monica Duffy and Samantha Holbrook, continue to do that as we speak, in opposition to the Neroni v Zayas appeal - a position completely inconsistent with their position as members of the Commission who pretend to want to introduce some "fairness" into the attorney disciplinary process.
Duffy and Holbrook, Members of the Commission/members of the disciplinary committee obtained a judgment of a federal court claiming that it is the civil rights plaintiff who is "confused" by claiming that, when the committee dons the judicial hat in rejecting a FOIL request, it undermines the legitimacy of the entire attorney disciplinary proceedings, making the court a party in the action it is adjudicating.
Yet, it is clear that a public official can only be EITHER a judge OR a prosecutor in a given proceeding brought by the government, but NEVER BOTH.
And that proceedings where the judicial and prosecutorial duties cross may not be constitutionally called JUDICIAL proceedings, these are ADMINISTRATIVE proceedings.
Which brings us to the next issue that the Report did not even touch upon - the nature of the attorney disciplinary proceedings and the nature of attorney's rights in their law licenses.
4/ The challenge to the nature of attorney disciplinary proceedings as administrative and not judicial in nature (because of combination in one body of legislative, investigative, prosecutorial and adjudicative functions, no discovery and no other procedural rights for attorneys that are allowed in court proceedings, such as a right to an open jury trial of all issues of fact) was brought up in court against Commission members Duffy, Holbrook and their committee, Lippman and the 3rd Department Court back in February of 2013, so that they cannot claim they are unaware of the challenge.
The Report makes no mention of that lawsuit, which is currently on appeal, or of other civil rights lawsuits that have brought constitutional challenges to attorney disciplinary system and were made to disappear by members of the Commission over the years, as defendants in such lawsuits.
After all, members of the Commission are those who created and run this system that is in violation of the doctrine of separation of powers, and it is naive to expect them to reform it since they created it for a self-serving reason in the first place.
The Report also makes no mention of the issue itself, that by its features and attributes, attorney disciplinary proceedings in New York are administrative and not judicial in nature.
To admit such a thing would mean that ALL attorney disciplinary determinations will be subject to Article 78 proceedings, as are other occupations license revocations, for licenses other than law licenses.
Yet, there is no mechanism at law in New York to bring an Article 78 proceeding AGAINST the intermediate appellate court, when positioning of the licensing body into the court requires bringing that Article 78 proceedings IN the same court AGAINST WHICH the proceeding is supposed to be brought.
In New York, an Article 78 proceeding against a judge or court in its official capacity can be brought ONLY and EXCLUSIVELY in the intermediate appellate courts.
When intermediate appellate courts are deciding the issues of license revocation, and the due process rule prohibiting a court to review a case against itself disqualifies such appellate courts from reviewing such cases, the problem with attorney disciplinary proceedings becomes fully visible, and that problem was not even touched upon in the Report.
Moreover, if deciding license revocations is placed into the highest court of the state - as ALL other states do, by the way - that will not correct the equal protection problem, because there is no mechanism in New York law to bring an Article 78 proceeding against the New York State Court of Appeals, as an administrative body, either, unless the Article 78 proceeding is brought in the lower-level trial court of general jurisdiction under the claim that the licensing/revoking court was acting as a mere administrative agency and is subject to the same reach of Article 78 as administrative agencies.
Yet, no attorney will dare to bring such a claim on behalf of a disciplined attorney, because both the representing attorney and the disciplined attorney will then be immediately punished for frivolous conduct up to $10,000 each and made to pay the opponent's counsel fees, even though theoretically they will be completely correct.
Recognition, through a declaratory judgment, that attorney disciplinary proceedings in New York, even those that are brought and concluded in appellate courts and result in censure, suspension or disbarment, are administrative in nature, is one of the issues in the Neroni v Zayas federal lawsuit filed in February of 2013, dismissed partially in March of 2014 and finally in June of 2015 and currently on appeal to the U.S. Court of Appeals for the 2nd Circuit.
Recognition of administrative nature of law license revocation - which should have been done long time ago because there is no distinction between an occupational license to practice law and any other occupational license, revocation of which in New York by the licensing body is an administrative proceeding by its very nature - will bring to the fore the interesting question that attorneys in New York, officers of the court responsible for protecting rights of their clients, are themselves devoid of even the most elementary right of judicial review of license revocation, even though their right for access to court is guaranteed by the Petitions Clause of the 1st Amendment to the U.S. Constitution, as well as by the State Constitution.
Naturally, it was not the purpose of the Commission to create any report that would expose constitutional infirmities of the current attorney disciplinary system. After all, the Commission's members are themselves fighting in courts as defendants against such challenges and did not want to create problems for themselves. For that same reason, because of that irreconcilable conflict of interest, those members of the Commission should not have been members of the Commission, because their conflict made the Report devoid of any credibility.
What the Report does try to do though is, on page 39, it suggests creating a "tribunal" (carefully avoiding mentioning whether such a tribunal will be by its nature a court or an administrative agency) that will review appeals from attorney disciplinary decisions. Here is what the Report says exactly:
New York already has clear law providing for appellate review - or lack thereof - of the court that is higher than intermediate appellate court that revoke attorney licenses, the New York State Court of Appeals.
The recommendation suggests that yet another appellate "tribunal" is created, with a "limited and discretionary" jurisdiction, to address exclusively ONE TYPE, ONE CLASS of appeals - appeals from revocations of attorney licenses.
This is an extraordinary suggestion for a Commission dominated by judges and lawyers.
The only "tribunal" that may exclusively handle appeals from only one type of cases, revocation of occupational licenses, is an administrative agency issuing those same licenses.
By suggesting this new "tribunal" to co-exist with the New York State Court of Appeals, the currently existing appellate jurisdiction for appeals from judicial decisions of appellate divisions, the Report recognizes, without putting it in so many words, that appellate decisions in attorney discipline are administrative in nature.
Yet, the Commission does not go further and does not say - well, if attorney disciplinary proceedings are administrative in nature, as we recognize by recommending to create a tribunal dealing exclusively from appeals from attorney disciplinary cases, attorneys in New York are not afforded ANY judicial review, and that is a major constitutional problem.
5/ The Commission did not address the nature of attorneys' rights in their law licenses as a constitutional right, instead continuing to claim it is "an exclusive privilege", in order to avoid direct admission of constitutional infirmity of attorney disciplinary proceedings.
Back in 1963, the U.S. Supreme Court has ruled that denial of even admission to the bar without a hearing was a violation of the applicant's due process of law.
The court has held, among other things as follows:
Thus, as of 1963, the U.S. Supreme Court has held, pertaining to a lawsuit against a New York attorney disciplinary committee, that:
(1) a person's right to practice law is the same as a person's due process right to earn a livelihood; and
(2) that due process of law requirements must be met before a person is "excluded" from the practice of law, and "exclusion" covers actions of the State in two directions that include both
(i) blocking admission into the practice of law, and
(ii) expulsion from the practice of law through attorney disciplinary proceedings.
52 years after that decision, the Commission stated the following in its Report on pages 13-14:
So, 52 years after the U.S. Supreme Court clearly ruled, against a New York State attorney disciplinary committee, that practice of law is not an "exclusive privilege", but a due process right to earn a livelihood, Commission that has as its members members of those same disciplinary committees, continues to claim that practice of law in New York is only "an exclusive privilege", because such positioning of the practice of law does not require the Commission to deal with the sticky issues that 52 years after the court order by the U.S. Supreme Court, New York still continues to defy it and provides no due process to its attorneys before revoking their livelihood.
6/ The Commission did not address the nature of attorneys' right of access to their own disciplinary file before, during and after the disciplinary proceeding as a due process right, instead playing with the word "fairness", to avoid direct admission of constitutional infirmities of attorney disciplinary proceedings
Recently in the case Neroni v Zayas, the federal judge, on request from Monica Duffy and her disciplinary committee, dismissed a constitutional access-to-attorney-disciplinary-file challenge and equated the right of access of an attorney before, during and after his disciplinary proceedings to a mere "property" right equal to right-of-access right to public records of any other member of the public who is not subject of those proceedings.
The challenge was dealing with the situation where Monica Duffy's Committee:
- claimed to the disbarment court (of which the committee claims itself to be "an arm" in federal proceedings, to protect itself from accountability, damages and even from injunctive or declaratory relief) that the Committee allegedly has certain records which the Committee present to the court as "aggravating circumstances" warranting an attorney's disbarment;
- the disbarment was granted without a hearing, based on those claims, where the claimed records were referenced, but not presented to the court or to the disbarred attorney. Disbarment without a hearing was, of course, a violation of attorney's due process right according to the 52-year-old U.S. Supreme Court precedent even for admission to the bar, and the disbarred attorney practiced law for 37 years,
- before the disciplinary petition was filed, during the disciplinary proceedings, and 4 years after the disciplinary proceeding concluded with disbarment, the attorney's access to the records, which were not presented to him or the court, but upon which his disbarment was granted, was not provided to the attorney;
- the attorney tried requests under Freedom of Information Law, Judiciary Law 255 and due process of law, and failed;
- When discovery was about to happen in the federal lawsuit that the attorney filed for access to the file, Monica Duffy made an ex parte application (an act of attorney misconduct) to the court, without notice to the disbarred attorney, and had his file (allegedly) transferred to another court, within 5 hours' drive from the disbarred attorney;
- the receiving court did not receive the disbarred attorney's file;
- Monica Duffy and the transferring court, of which Monica Duffy's Committee is "the arm", continue to sit on the file which was not provided to the disbarred attorney before, during or after the disciplinary proceedings, and that was allegedly, but not actually transferred to another court, so Monica Duffy and the 3rd Department/Karen Peters as the Chief judge of that court are in defiance of their own ex parte order of transfer;
- Monica Duffy and the court continue to deny the disbarred attorney even such elementary things as a copy of the application by the committee for the ex parte post-disbarment order of transfer and a copy of the affidavit of service, or an explanation to the court why service is not required, of that application.
All of that constitute attorney misconduct and judicial misconduct.
Of course, Monica Duffy refused to investigate and prosecute herself and members of her Committee.
And, of course, the court that colluded in that misconduct, refused to appoint a special investigator and prosecutor against Monica Duffy.
And Monica Duffy is the same person who prosecuted the disbarred attorney's counsel and wife (myself) for not committing a crime of unauthorized practice of law by not appearing at a deposition in 2008 and by not answering a motion in 2008 on behalf of clients whom I was not allowed by law to represent as an attorney and whom I did not represent in fact, because I was not admitted to the bar until 2009, and for all of that there are, of course, court records that were right in front of Monica Duffy and which she ignored, which constitutes yet another act of attorney misconduct that Monica Duffy refuses to investigate and prosecute against herself, and nobody else other than her, or a special investigator and prosecutor that the 3rd Department refuses to appoint, can do.
This one reads like a "House that Jack built" story, but it is all reflected in the court records, and Monica Duffy, who should have been disbarred long time ago for all of the above attorney misconduct, continues to sit on Commissions and Committees and even recommends to the State of New York how to make attorney disciplinary proceedings fairer, better and more efficient.
There is nothing more efficient than what Monica Duffy is already doing - fabricating charges, denying access to the file, claiming to the court aggravating circumstances through non-existing records and then hiding evidence of her misconduct and criminal behavior by entering into collusion with the court that appointed her to transfer the case someplace else, in order to defy discovery in a federal civil rights lawsuit, while continuing to sit on the file that she claimed she transferred (or concealing the fact that such a file does not exist, and never did, and that she and her committee obtained an order of disbarment 4 years ago by fraud).
Let's also keep in mind that Monica Duffy, her Committee, the 3rd Department Court, all members of the Commission appointed by Lippman, and Jonathan Lippman himself, the creator of the Commission, at this very time, continue to oppose an appeal dealing with a constitutional challenge by an attorney disbarred by her with the help of blocking the attorney's access to the disciplinary file and then using references to that secret or non-existent file as an aggravating circumstance to disbar the attorney without a hearing, Neroni v Zayas, Case No. 15-2030 in the U.S. Court of Appeals for the 2nd Circuit.
Now, with all of this in mind, let's look at what Monica Duffy and the 3rd Department, co-defendants in Neroni v Zayas, propose, as members of the Commission to Jonathan Lippman, another co-defendant in Neroni v Zayas and creator of the Commission, on the subject of attorney's access to the file in disciplinary proceedings:
So, Monica Duffy, her Committee and the 3rd Department, while continuing to fight an access-to-the-file civil rights lawsuit and a challenge to disbarment based on fraud because of lack of such access to the file and lack of knowledge by the attorney what, if anything, that concealed file contains, the same Monica Duffy, her Committee and the 3rd Department have the audacity to "recommend" to his co-defendant Lippman - who affirmed that order of disbarment without review and also continues to fight that access-to-the-file lawsuit - that
- new rules in attorney disciplinary proceedings should be introduced;
- that the new rules should include "uniform discovery" and "information sharing" for attorneys - the exact same things that are challenged as constitutional infirmities in the Neroni v Zayas lawsuit that the Monica Duffy crew is fighting at this very time; and
- that "this recommendation" is of the "highest priority", and
- that "firm deadline for adoption" of such rules should be established.
I must tell you - Monica Duffy, Karen Peters and Jonathan Lippman take hypocrisy to a whole new level.
I will continue to post my analysis of the Report.
Stay tuned.
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