EVOLUTION OF JUDICIAL TYRANNY:

"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).

“This
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 cos
t.



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,
dissenting.



“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.

Tuesday, September 13, 2016

In New York system of attorney discipline, grand theft of client funds is less of attorney misconduct than truthful criticism of a judge on behalf of a client in a motion to recuse

On November 13, 2015, New York State Supreme Court, Appellate Division 4th Judicial Department decided several cases of attorney discipline.

Two cases decided on the same day, November 13, 2015 that I would like to discuss here are:


  1. Matter of Tatiana Neroni (suspended for 2 years for truthful criticism of a judge in motions to recuse) and
  2. Matter of Barry Dolgoff (suspended for 1 year for grand theft of client funds from the trust account - $149,000 of client funds, to be exact).

"Any person being an attorney and counsellor-at-law who shall be
 convicted of a felony as defined in paragraph e of this subdivision, shall upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such."

Return of some of the funds into the trust account does not negate commission of the crime.

Apparently, attorney Dolgoff was not criminally charged - even though he reportedly admitted to the theft in court.

Was attorney Dolgoff disbarred, even without conviction - because he admitted to what constituted grand theft of client funds?

No.

Was attorney Dolgoff denied a hearing (like I was) - because he had courts reportedly ruled about his theft of client funds before the disciplinary court did?

No.

Attorney Dolgoff was allowed to have a hearing, and to call witnesses who vouched that he is a good person (even though a thief).

Let's compare attorney Dolgoff's offense (a felony) with my "offense" (criticism of a judge in a motion to recuse).

While committing fraud and a crime is specifically mentioned as attorney misconduct in the Rules of Professional Conduct for Attorneys in New York, criticizing a judge is not included into the same Rules as attorney misconduct, and understandably so.

After all, litigants' right to impartial judicial review is a fundamental federal constitutional right, and attorneys are guarantors of securing that right for their clients.

Moreover, New York, unlike other states, allows its attorneys only ONE tool to secure that fundamental federal constitutional right for their clients - a confrontational motion to recuse, made in front of the challenged judge.


When sanctioning attorneys for criticizing judges, New York courts do not care whether the criticism was truthful or not, or whether the judge did or did not engage in the "appearance of impropriety" (22 NYCRR 100.2) - the threshold allowing to make a motion to recuse in New York.

Raising "appearance" of impropriety does not require "conclusive proof", as the disciplinary court affirmed in my case, affirming in full (and without a hearing) the language of Charge III Specification 3 in the disciplinary petition filed against me:



Specification 3



          Regarding respondent’s conduct the above referenced court found: “By these accusations MrsNeroni displays disdain for the rule of law and the authority of the courts of this state.  Her assertions of the significance of various isolated and unrelated facts as being conclusive proof of bias, bribery and other misconduct on the part of the court and opposing counsel are contrary to the universally accepted principles which serve as the basis of our judicial system.”


Raising appearances of impropriety requires only to raise a reasonable inference of impropriety - an issue of fact subject to determination by a reasonable and impartial observer.  Certainly not by the judge who is the target of the motion to recuse.  Certainly, a judge who was caught with his hand in the cookie jar, will claim that circumstantial evidence of his misconduct (which is perfectly admissible in trials and has sent thousands of people in New York behind bars) is somehow inadmissible and constitutes "isolated" and "unrelated" events. 

Of course, anything would be "isolated" and "unrelated" when a judge wants to absolve himself - but that is why many states do not allow the judge targeted with a motion to recuse to preside over such a motion, much less to impose sanctions for making such a motion.

Now.

No court has so far explained to me what are the existing "principles" that Charge III Specification 3 is talking about - of how an attorney must make inferences from evidence of impropriety the attorney sees in the record and is otherwise aware of through the attorney's factual investigation into the judge's background, connections and conduct.

There are no guidelines for attorneys as to how to make inferences whether the record in front of them does or does not raise an inference that the judge was bribed or influenced, or committed misconduct.  It is just common sense.

No court has ever explained to any attorney in New York or otherwise, which principles "serve as the basis of our judicial system" that I so grossly violated that I needed to be stripped of my license and livelihood for 2 years.

Moreover, Charge III Specification 3 does not mention whether my allegations of misconduct were or were not truthful - and, did not mention that sanctions were imposed upon me by the so-called "accuser-adjudicator", the judge to whom I pointed out that his conduct in the criminal case raise a reasonable inference that he acted under the influence of a powerful political figure.

So, in my case, the 4th Department expressed its clear policy that it considers criticism of a judge, by mere subject matter, especially the mentioning of a potential bribery of a judge, such a taboo that, whether it is truthful or not, it must be punished with suspension of a law license.



                                        *      *       *

So, when an attorney is court with his pudgy paw in his clients' cookie jar, BIG TIME - that's not such a big problem for the disciplinary court.

Criticism of a judge is a MUCH bigger "attorney misconduct", in the opinion of the New York disciplinary courts - as the 4th Department demonstrated in my case and in attorney Dolgoff's case, where the two cases were decided by the same court on the same day.

Let's remember.

In New York, if your attorney steals $149,000 in your funds from the trust account, is caught, but then "expresses remorse" for commission of a crime - he will be suspended for just 1 year.

If your attorney makes for you a motion to recuse (without pay!) raising appearance of impropriety, bias and misconduct of a judge, based on documentary evidence - in order to secure your fundamental federal constitutional right to impartial judicial review, in the only way permitted by New York law, by a confrontational motion to recuse in front of the judge that is the subject of the motion - then, your attorney will be suspended for 2 years, and then made to retake the bar examination in order to be reinstated.

Guess, how many attorneys will now steal from you after Matter of Dolgoff (given that they will be forgiven if they "express remorse", and if their friends vouch for the thief's "honor"), and how many attorneys will make a motion to recuse on your behalf after Matter of Tatiana Neroni.










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