On the need of urgent legislative intermediate and sunset review of unconstitutional practices in attorney regulation by New York appellate courts: New York attorney regulation courts are in open contempt of a direct US Supreme Court order as a matter of policy

 

On the need of urgent legislative intermediate and sunset review of

unconstitutional practices in attorney regulation by New York appellate courts

 

New York attorney regulation courts are in open contempt of a direct US Supreme Court order as a matter of policy

 

Tatiana Neroni, J.D.

October 26, 2021

List of cited authorities

Constitutional Provisions

U.S. Constitution, Amendment 4, Prohibition on unreasonable searches and seizures by the government...... 2, 3

U.S. Constitution, Amendment 5, Right against self-incrimination................ 2, 3

 

Court cases

Boyd v. United States, 116 U.S. 616 (1886)................................................... 2

Grayned v. City of Rockford, 408 U.S. 104 (1972)............................................ 2

Matter of Albert O. Grant, 184 AD3d 315 (1st Dept 2020).................................... 4

Matter of Alexander L. Shapiro, 177 AD3d 28 (1st Dept 2019).................... 4

Matter of Craig F. Meltzer, 189 AD3d 80 (1st Dept 2020).................................... 4

Matter of Donald R. Dunn, 174 AD3d 175 (1st Dept 2019)............................. 4

Matter of Durove, 2015 NY Slip Op 08517, 135 AD3d 176 (1^st Dept., November 19, 2015)............................ 5

Matter of Kavin L. Edwards, 171 AD3d 221 (1st Dept 2019)............................. 4

Matter of Lawrence A. Doris, 186 AD3d 23 (1st Dept 2020)............................... 4

Matter of Lori Vinciguerra, 188 AD3d 56 (1st Dept 2020).................................... 4

Matter of Marina Trubitsky, 183 AD3d 146 (1st Dept 2020)............................. 4

Matter of Paul Frieary, 190 AD3d 7 (1st Dept 2020)........................................... 4

Matter of Wayne A. Autry, 177 AD3d 44 (1st Dept 2019).................................... 4

Matter of William S. Winters, 190 AD3d 27 (1st Dept 2020)............................... 4

Speiser v. Randall, 357 U.S. 513 (1958) 2

Spevack v. Klein, 385 U.S. 511 (1967) 2,3

 

 

Other Authorities

22 NYCRR § 1240.7(b)(3)...................... 3

22 NYCRR 1240.9(2).............................. 3

22 NYCRR 1240.9(a)(1)......................... 3

 

In 1886, the U.S. Supreme Court has held that in any proceedings, civil or criminal, in rem or in personam, a person may not be made to produce documents to be used to incriminate him, or be made to testify against himself, based on protections of the 4^th and 5^th Amendments of the U.S. Constitution[1].

And, in 1958, the U.S. Supreme Court has declared that the government may not obtain indirectly the result that it is not allowed to obtain directly, it may not strip people of their federal constitutional rights under the guise of some state policies[2].

New York attorney-regulating courts did not obey that US Supreme Court precedent and continued to strip attorneys of their licenses and livelihoods for refusal to engage in self-incrimination during investigations by licensing prosecutors.

Let’s not also forget that in regulating attorneys New York courts have been regulating a subject, “practice of law” that is not clearly defined by the State Legislature, and, thus, the entire regulatory scheme of lawyers is, and remains, unconstitutional and void for vagueness and overbreadth[3].

In view of continued defiance by New York lawyer-regulating courts of Boyd v US). and Speiser v Randall), in 1967, the U.S. Supreme Court had to issue a direct order declaring unconstitutional specifically the practices of New York lawyer-regulating courts in stripping attorneys of their licenses and livelihoods for failure to produce records and for failure to testify during investigations meant to affect their licenses[4].

 

In answer to that direct court order by the U.S. Supreme Court New York attorney-regulating courts engaged in further defiance of constitutional precedent and criminal contempt of court as a matter of policy.

New York attorney-regulating courts have at least 3 policies in direct contempt of the U.S. Supreme Court order in Spevack v Klein.

Policy # 1.  The presiding judge of the attorney-regulating court may, by a court rule, help in investigation/prosecution of an attorney by compelling him to produce records and to testify by a judicial subpoena, or subpoena duces tecum, under the penalty of contempt-of-court for disobedience [5].  In fact that policy is, in and of itself, a contempt of a higher – U.S. Supreme – court order, directed at New York attorney regulated courts[6] and declaring unconstitutional this particular type of compulsion, violating 4^th and 5^th Amendments to the U.S. Constitution.

Yet, New York attorney regulating courts honor their rule higher than the U.S. Constitution, U.S. Supreme Court precedent and a direct U.S. Supreme Court order.

Policy # 2.  In New York, a lawyer may be stripped of his law license “on the interim basis”, according to a state court rule –

·       during a licensing investigation,

·       before any formal charges are filed and

·       before the final adjudication of these charges,

·       simply for invoking his 4^th and 5^th Amendment privilege by:

o   Failing to respond to a complaint,

o   Failing to come to a deposition and testify against himself, and

o   Failing to produce records to be used against himself[7]

Policy # 3.  In New York, a lawyer may be automatically permanently stripped of his license if he/she persists in invoking his/her 4^th/5^th Amendment privilege for 6 months after he/she is initially stripped of his/her license because of invoking her 4^th/5^th Amendment privilege[8].

 

These 3 policies are written by New York lawyer-licensing courts as legislators expressing the will of these courts to defy a direct order of the U.S. Supreme Court in Spevack v Klein that declared unconstitutional the very actions that New York state courts authorized in their 3 rules by which attorneys in New York are automatically and summarily stripped of their licenses and livelihoods for invoking their constitutional rights in license-revocation proceedings, without any formal charges brought against them.

And, these openly and defiantly unconstitutional policies are not allowed to collect dust – they are actively used by the court to punish lawyers with banishment and starvation for disobedience, even though if that particular type of disobedience is what the U.S. Constitution (that each judge of the court is sworn to uphold) allows lawyers to do[9]. 

New York courts consider enforcement of these openly unconstitutional policies of such importance that they consider it necessary to make sure that, for example, a very elderly lawyer’s license is rather revoked for failure to cooperate with the investigation than surrendered voluntarily, as the lawyer asked the court to allow him to do[10] - an unreasonable viciousness, especially as compared to practices of New York State Commission of Judicial Conduct towards judges routinely allowing judges to resign from the bench for non-disciplinary reasons to save face.

These policies are undermining not only federal constitutional rights of particular lawyers who are stripped of their licenses for invoking their federal constitutional rights, but of the whole declared purpose of attorney regulation – protection of the public.

People cannot expect vigorous protection/defense of their constitutional rights from attorneys who are forbidden by state licensing authorities to protect their own constitutional rights and who must live out their entire professional life in fear that their license and livelihood can be yanked at any time for nothing more than invoking their federal constitutional rights that they are undoubtedly entitled to[11] - by a U.S. Supreme Court order directed specifically at New York attorney-regulated courts, no less.

People cannot be expected to trust legitimacy of all appellate court’s decisions when such appellate courts are openly defying – for over half a century, too - a U.S. Supreme Court order regarding their power over lawyers.

New York appellate courts must start doing their job in upholding the U.S. Constitution in their decisions rather than openly and defiantly violating the U.S. Constitution and a direct order of the U.S. Supreme Court in lawyer-regulating cases.  Courts cannot expect the public to rely on legitimacy of such courts’ decisions otherwise.

The openly unconstitutional policies in regulating lawyers in New York must be abolished, and regulation of lawyers in New York should be subjected to urgent legislative intermediate and sunset review in view of its general unconstitutionality and its pervasive unconstitutional policies and practices.

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[1] Boyd v. United States, 116 U.S. 616 (1886).

[2] Speiser v. Randall, 357 U.S. 513 (1958).

[3] See Grayned v. City of Rockford, 408 U.S. 104 (1972) (“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values.

1.      First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.  

2.      Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.  A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.  

3.      Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms."  Uncertain meanings inevitably lead citizens to "steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked," footnotes omitted, emphasis added, the quotation structured.

[4] Spevack v. Klein, 385 U.S. 511 (1967).

[5] 22 NYCRR § 1240.7(b)(3) (“Investigation, Disclosure.  The Chief Attorney [of the attorney licensing prosecutors – T.N.] is authorized to apply to the Clerk of the Court for a subpoena to compel the attendance of a person as a respondent or witness, or the production of relevant books and papers, when it appears that the examination of such person or the production of such books and papers is necessary for a proper determination of the validity of a complaint. Subpoenas shall be issued by the Clerk in the name of the Presiding Justice and may be made returnable at a time and place specified therein”).

[6] Spevack v. Klein, 385 U.S. 511 (1967).

[7] See 22 NYCRR § 1240.9(a)(1): “§ 1240.9 Interim Suspension While Investigation or Proceeding is Pending (a) A respondent may be suspended from practice on an interim basis during the pendency of an investigation or proceeding on application or motion of a Committee, following personal service upon the respondent, or by substitute service in a manner approved by the Presiding Justice, and upon a finding by the Court that the respondent has engaged in conduct immediately threatening the public interest. Such a finding may be based upon: (1) the respondent’s default in responding to a petition, notice to appear for formal interview,

examination, or pursuant to subpoena under these Rules”.

[8] See 22 NYCRR 1240.9(2): “An application for suspension pursuant to this rule may provide notice that a respondent who is suspended under this rule and who has failed to respond to or appear for further investigatory or disciplinary proceedings within six months from the date of the order of suspension may be disbarred by the Court without further notice”.

[9] See e.g. Matter of Wayne A. Autry, 177 AD3d 44 (1st Dept 2019) (lawyer’s license suspended for 3 months in New Jersey, but also indefinitely, “until further order of the court”, “based on his failure to cooperate

with two separate disciplinary investigations”, New York court added identical “reciprocal discipline”);

               Matter of Donald R. Dunn, 174 AD3d 175 (1st Dept 2019) (“failure to appear for a deposition as directed by a judicial subpoena … that evidenced a willful failure to cooperate with the AGC’s investigation, which warranted his interim suspension”);

               Matter of Kavin L. Edwards, 171 AD3d 221 (1st Dept 2019) (interim suspension for “failure to cooperate with the AGC’s investigation of professional misconduct”.  The lawyer “failed to submit a written answer to the disciplinary complaint and defaulted on the second day of his court ordered deposition”);

               Matter of Alexander L. Shapiro, 177 AD3d 28 (1st Dept 2019) (interim suspension for failure to cooperate with the investigation and appear at a deposition/interrogation following a judicial subpoena);

               Matter of Marina Trubitsky, 183 AD3d 146 (1st Dept 2020) (interim suspension for failure to appear at a deposition/interrogation following a judicial subpoena);

Matter of Craig F. Meltzer, 189 AD3d 80 (1st Dept 2020) (interim suspension for “failure to cooperate with the AGC’s investigation of professional misconduct); 

Matter of Lori Vinciguerra, 188 AD3d 56 (1st Dept 2020) (suspension for 3.5 years, one of the reasons – failure to provide to prosecutors information about lawyers’ employers since the year 2002); 

Matter of William S. Winters, 190 AD3d 27 (1st Dept 2020) (reciprocal with New Jersey suspension for 5 years for failure to cooperate with investigation);

Matter of Lawrence A. Doris, 186 AD3d 23 (1st Dept 2020) (interim suspension for failure to cooperate with investigation and be deposed/interrogated following a judicial subpoena);

Matter of Paul Frieary, 190 AD3d 7 (1st Dept 2020) (interim suspension for failure to cooperate with licensing investigators/prosecutors);

Matter of Albert O. Grant, 184 AD3d 315 (1st Dept 2020) (interim suspension for failure to cooperate with licensing prosecutors re accusations of criminal nature – theft).

[10]  See e.g. Matter of I. Frederick Shotkin, 174 AD3d 146 (1st Dept 2019) (a 91-year-old lawyer asked the court to allow him to voluntarily surrender his license for non-disciplinary reasons, the court denied that request and took the license through a public “interim suspension” for failure to cooperate with investigation); 

[11] See e.g.  Matter of Durove, 2015 NY Slip Op 08517, 135 AD3d 176 (1^st Dept., November 19, 2015) where the court states that allegations of a client against the attorney (of criminal nature) cannot be proven on the documentary evidence licensing prosecutors obtained, but that does not matter because the attorney may be stripped of his license, before the investigation is complete and before any formal charges are filed, on an “interim basis” simply because he refused to be interrogated by licensing prosecutors.