Cowards and blackguards

This is a song that the talented Ukranian Conservatory-trained singer Vadim Dubovsky wrote himself and dedicated to the actions of the Russian President Putin in "not fighting" a "non-war" in the Ukraine.

It is dedicated to the cowards and blackguards who are perpetrating unlawful war on their neighbor while claiming they are humanitarians.

Beautiful voice, powerful performance. 

Can be addressed to cowards and blackguards everywhere.

Thank you, Mr. Dubovsky, for your talent and for your powerful message.

The same as Putin's actions made me, as it did with many Russians and Russian Americans, feel guilty before the Ukranians for actions of the Russian president, ugly actions of the so-called "noble legal profession", including the judiciary that I observed and described in this blog, make me ashamed of being part of it and make me feel the need to bring about reforms to clean the profession.

I do not IN THE LEAST presume or try to portray the personal tragedy of my family in the clash with the cowards and blackguards of the corrupt judicial system in the State of New York (and federal courts in the same state) with the tragedy of the Ukranian people.  These things are incomparable.

Yet, cowardice in the face of corrupt and unlawful behavior of the high and mighty in any country does lead to tragedies, sometimes hurting a lot of people very badly.

A crash course in crimlaw for Mary Gasparini

Any 1st year law student is exposed to this hypothetical in criminal Law 101".

An individual decides to shoplift. He or she steals from a store and manages to leave the store unnoticed.

When the thief is safely in the parking lot, he or she is suddenly gripped by remorse, goes back to the store and surrenders the stolen item. 

The store can still prosecute the thief.

The crime is complete - and prosecutable - once the individual acts with the requisite state of mind (knowingly, intentionally or recklessly, for different crimes).

So, when my disciplinary prosecutor submitted fraudulent charges to the court and obtained a denial of my cross-motion by stating that her charges were in good faith, and now obtained a decision on liability against me based on the fraudulent charges (unlawful, since it was made by a referee without authority to make such a decision, but still a decision which may stick in our habitually lawless world, as far as critics of judicial misconduct like me are concerned), it is too late to unring the bell.

The crimes were committed, the liability has accrued.

With the exception that I cannot suspect Mary Gasparini of remorse, it is an attempt to save her hide after being sued for fraud and fraud upon the court, especially that I sued her in a jurisdiction that has a recent mandatory precedent that excludes "prosecutorial immunity" for her when she prosecuted me for NOT practicing law without a license.

And, in federal criminal world, what Mary Gasparini and the crew are doing, in my legal opinion, falls under the definition of RICO - using the court system and the disciplinary system as a criminal enterprise involved in racketeering.

Once again, this is my legal opinion, because, I believe, the elements of RICO are satisfied.

Whether Mary Gasparini and the crew are going to be prosecuted for that though, is the matter of discretion of the U.S. Attorney's Office, where my fate and the crime committed against me and my family may weigh too low against the chance of ruffling too many feathers of the establishment in the New York state government on many levels.

But, one never knows at what stage in one's career one's sins will be called to the fore and when one would be sacrificed as a scapegoat by his or her masters...

Preserve your health at Mary Gasparini's CLE lectures on legal ethics

And I mean it.

See, Attorney Mary Gasparini, disciplinary prosecutor out of the Attorney Grievance Committee, Appellate Division 4th Department, stated under oath to that same court that her CLE lectures made during state-paid time were allegedly part of her prosecutorial duties.

Of course, this is not true, but during the brief period that I came to know Ms. Gasparini, I came to realize that such a trifle as the truth is not high on her priority list.

Mary Gasparini is the same attorney who advanced fraudulent claims against me since June of 2014 when the case got transferred to her from the 3rd Department, while it was plainly in the court record that Charge I Specification I and Charge IV were fraudulent and all other charges was evidence of unconstitutional retaliation against me by a judge whom I sued, and then he got on a vendetta trail and sanctioned me and turned me into the disciplinary committee.

Instead of sympathizing with me as a victim of unconstitutional judicial retaliation and misconduct, instead of reporting the judge's misconduct to the Judicial Conduct Commission, as was Mary Gasparini's obligation under the same rules that she is enforcing against others, Mary Gasparini ran with the fraudulent and unconstitutional charges from June of 2014 until January 12, 2015 and is continuing now to prosecute all of them but one (the one attempting to discipline me for NOT committing a crime of practicing law without a license on two occasions, the one that Mary Gasparini withdrew after she was sued and after it was granted). 

In the process of prosecution Mary Gasparini showed a spectacular lack of ability to read and comprehend what is written in the law and court records, and continued to prosecute fraudulent and frivolous claims and arguments with the court, thus being a shining example of legal ethics herself.

After the referee (unlawgully) granted Mary Gasparini's motion, she continued to beat the dead horse and ask the referee to admit evidence from her, even though we were attending a scheduling conference for a hearing that the referee refused to conduct, and the referee clearly stated that he will not hold the hearing because he granted the motion.

Mary Gasparini does not even know such elementary things as the time limits allowing people to answer Notices to Admit under Article 31 of the CPLR, 20 days plus 5 days if served by mail.

She served the Notice to Admit on me on December 23, 2014 by mail, which would give me the deadline to respond (if CPLR and discovery would apply) by January 17, 2015.

Yet, Mary Gasparini asked the referee to deem me as admitting everything in the Notice to Admit 5 days before the deadline, on January 12, 2015, and after the motion was granted and the referee refused to conduct any hearing whatsoever.

With such a spectacular show of competence Mary Gasparini is surely the best choice of lecturer to teach others about legal ethics and "difficult attorneys" (like me, I understand, attorneys who know the law, have trial experience, including experience in federal civil rights litigation and do not allow Mary Gasparini to walk all over me with her incompetent tweets).

I wonder if Mary Gasparini even tried any cases in the 4th Department or if she is used to have dealings with attorneys who, knowing about injustice of the court rules governing attorney disciplinary proceedings and misconduct that occurs in such proceedings, simply settle the case or admit whatever they are charged with.

It does not appear that she has ANY trial experience whatsoever.

An experienced trial attorney will not withdraw a charge which was part of the basis for a motion that was just granted, because such a withdrawal voids the grant of the motion.

An experienced trial attorney would not try to proceed arguing issues of discovery for a hearing after her motion that (in the opinion of the referee) precluded the hearing where evidence from that discovery is supposed to be admitted, it is simply unnecessary and looks like Mary Gasparini lacks any litigation experience or professional competence or both, no offense meant, but it is the truth.

After reading the list of Mary Gasparini's feats in legal ethics (as well as breaches of criminal law, fraud upon the court), the list that I tabled for your convenience below, any potential buyer of Mary Gasparini's CLE lectures would consider this as sound advice.

If it is your own money - skip it, don't waste your dime.  After all, you need to get something out of a CLE course for your practice.  CLE requirements exist for a reason.

If this is a course mandated and paid for by your employer - enjoy the complementary coffee and bagels, read a book on your tablets and never listen to Mary Gasparini's legal ethics lecture, because, if after reading this table and my other blogs about her, you do that, you will run a risk to die laughing.

No	Issue	Mary Gasparini’s initial position	Did Mary Gasparini change her position and why?
1	CPLR is not applicable to attorney disciplinary proceedings, is it?	That argument was not exactly made by Mary Gasparini, it was made by another beacon of legal ethics, Alyson Coan of Professional Conduct Committee of the 3rd Department, but Mary Gasparini, after the transfer of the case from the 3rd to the 4th Department, did not withdraw this argument and adopted it as her own At the same time, Mary Gasparini first announced to me an “open file policy”, allowing me to look at “whatever they have”, and, when I came to her office, denied she ever told me that, denied me access to the file, and proceeded denying me access to my own file throughout the proceedings	Yes, she did.  As soon as Mary Gasparini realized that she faced an uphill battle to put together trial Exhibits, and especially that she had no procedural tool, same as I didn’t, to subpoena those records, simply because the court did not provide for such a tool, she immediately resorted to CPLR and served upon me, in proceedings where discovery is not allowed by court rules, during the pendency of a motion for a  summary judgment and at the very same time when the case was already transferred to a trial referee, thus discovery (if it was afforded at all) had to be complete, a “Notice to admit”.  A “Notice to Admit” is a  discovery device strictly belonging to CPLR.  It is used before the case is scheduled for trial and not after.  It is used only after the summary judgment is resolved, and when it is still pending, and it is not used AT ALL in attorney disciplinary proceedings, at any stage.  But – the CLE lecturer in attorney ethics Mary Gasparini apparently did not care.  She desperately needed that tool, and she applied it anyway, hoping for a favor rom the senile and incompetent referee. Gasparini also showed complete innocence, so to say, as to knowledge of the section of the CPLR governing the deadline to reply to a “Notice to Admit” served by mail (which is how Gasparini served it on me on December 23, 2014). Service of a discovery device under CPLR is 20 days + 5 days if served by regular mail (our case), bringing the deadline for me to respond (if CPLR applied to attorney disciplinary proceedings at all and to the stage of proceedings we were at at the time the “Notice to Admit” was served) to January 17, 2015. Today, 5 days before the deadline for me to answer Mary Gasparini’s Notice to Admit, Mary Gasprini asked the referee to put all exhibits “into evidence” because I failed to answer her Notice to Admit. And, what is even more interesting, Mary Gasparini asked the referee to do that LONG AFTER the referee told me, in her presence, that the referee already granted her motion (unlawfully), making her exhibits unnecessary, and making her request to admit anything into evidence after the motion on liability was already granted, completely inappropriate. But – when did “inappropriate” stop a prosecutor?
2	An attorney owes the tribunal and the opponent to proceed in good faith and with due diligence	When Mary Gaspraini “inherited” my disciplinary Petition with two fraudulent charges included into it (and other charges unconstitutional), as far as I could judge from our conversation in early October of 2014 on the phone, Mary Gasparini did not read any of the Petition, any of the underlying court records and did not have a clue as to what is charged and what she is supposed to prosecute.  That was 4 months (!) after the transfer of the case from the 3rd Department to Mary Gasparini’s Committee.  One would presume, that no matter how busy Mary Gasparini was with her CLE lectures on legal ethics, she would find at least some time for what she is paid or by the taxpayers. Furthermore, Mary Gasparini fought tooth and claw to keep the fraudulent charges in, despite evidence in the record (court records!) showing that the charges were in fact fraudulent. Mary Gasparini explained away her position to the court that she keeps the Petition the way it is, fraudulent charges and all, by pointing out to the court in a sworn statement that it is allegedly the court’s own rule that is to blame – that it is the court that PROHIBITS Mary Gasparini to amend the original Petition that originated in the disciplinary Committee of another Appellate Division and was transferred to her. That results in a rule of legal ethics – you may not commit fraud upon the court UNLESS the court PROHIBITS you to withdraw a fraudulent statement of your predecessor and practically mandates you to commit the crime of fraud upon the court – then you can proceed with fraud upon the court at your heart’s desire I wonder if Mary Gasparini will ever voice this rule at one of her CLE legal ethics lectures	BUT WAIT: As soon as Mary Gasparini was sued, personally, for fraud and fraud upon the court, and the announcement of that lawsuit appeared on my blog (which was part of the record of the proceedings, so Gasparini knew about it, and which Gasparini, judging by her actions, diligently read), Gasparini suddenly changed course. Even though by the time she decided to change course the referee (unlawfully) granted all charges she was bringing, including the 2 absolutely fraudulent charges (and others “merely” unconstitutional), Mary Gasparini, without a motion to vacate that decision, “withdrew” Charge I Specification I which was already granted to her. It appeared that no court rule that prohibited her from changing the transferred Petition prevented her from doing it. Once again – I wonder whether Mary Gasparini will comment on this fine example of her behavior in any of her CLE lectures on attorney discipline and legal ethics
3	Access to the file	From the very moment when I was admitted to the bar in 2009 I was involved in representation of my husband in a disciplinary proceeding.   I kept asking the 3rd Department for access to my husband’s (and client’s) file (1) while he was investigated, but not yet prosecuted,  (2) while he was prosecuted,  (3) after he was disbarred and his file became public record under a statute, Judiciary Law 90(10) – with no avail, until I had to sue the 3rd Department Disciplinary Committee in federal court.  After I sued – and won against the Department’s on the issue that the issue of access to the file could go to trial, the 3rd Department (1) transferred my husband’s file (for some unknown reason merged with my disciplinary proceedings, 3 years after my husband’s disbarment) to the 4th Department (Mary Gasparini), and Mary Gasparini continued to block my access to his file. Of course, I got a “sneak preview” of what may be the reason of why I was blocked from the Committee’s attorney Bruce Boivin, the Assistant New York State Attorney General who was extremely surprised that I even asked about some “archive” of records in the Committee and pretended he did not know what I was talking about.  I understand that there is no archive of records in the 3rd Department Committee at all, and when its attorneys claim to the court that there were allegedly “letters of caution”, “letters of admonition” etc. etc., existence of those letters, as well as existence of proof of service of any notices of charges, responses of attorneys, decisions of the Committee to discipline attorneys and letters themselves are simply non-existent, in the 3rd Department as well as in the 4th Department. Which, of course, brings us back to the ethical duty of counsel (including EVEN prosecutors) of due diligence and “duty of candor to the tribunal” (in plain English “do not lie to the court”), but those duties, due to the spread of absolute prosecutorial immunity, is usually lost on the prosecutors.  They only prosecute others who are allegedly in violation of the law/ethical rules in our case.  They do not have to comply with the law/ethical rules themselves while prosecuting for violating of the law/ethical rules.  Same was with my own file – I was blocked from accessing my file throughout the so-called investigation and prosecution Then, the sun broke through (it tried) when Mary Gasparini promised to give me access to “everything in their file” in accordance to their “open file policy” – but then she clamped right back and denied me access to anything, despite her office’s “open file policy”.	Did Mary Gasparini change THAT attitude – that she will not give access to attorney’s own file while she herself is at the same time (1) trying to obtain discovery from that same attorney under the CPLR, (2) claiming to the court that CPLR does not apply when it is supposed to help the prosecuted attorney, and (3) prosecute the attorney knowing that she does not have a case and does not have proof in her file to meet her burden of proof Of course not. Not upon her life will Mary Gasparini release her grip when she is “winning”, even by fraud, even by unlawfully blocking my access to my own file to be able to prove that Mary Gasparini does not have a file at all, and does not have proof of any misconduct on my behalf, other than being the victim of unconstitutional judicial retaliation (which is not misconduct, is it?)
4	Reporting judicial misconduct	Mary Gasparini’s file/record/petition/underlying court files were STREWN with evidence of judicial misconduct. A judge retaliating against an attorney after attorney sues judge.  Misconduct? Misconduct.  Did Mary Gasparini report it? No, she prosecuted the victim of that misconduct. A referee reads two court orders telling him to do one thing (hold a hearing and report to the court) and does something completely different – grants the motion on liability to Mary Gasparini, which the referee is absolutely not authorized to do. The attorney-victim (that would be me) points that out, but Mary Gasparini sees in it only the result – her SUCCESS, not whether this success was attained by (1) her fraud, (2) the referee’s misconduct.	Did Gasparini change THAT position? Of course, not. These rules, to report judicial misconduct, are written for lip service, to claim that we have “the rule of law” in New York state courts and its attorney disciplinary proceedings. Yet, nobody “really” means to use them, and if anybody does, they end up like I did – prosecuted for being sanctioned by the very judge against whom I reported misconduct.
5	Recusal for bias	A prosecutor has a dual role – to try to bring wrongdoers to justice, but at the same time to see that actually justice is done and that the prosecutor does not hurt the prosecuted person if he or she is innocent of wrongdoing That dual role is very tough to digest for an average prosecutor, and Mary Gasparini is no exception If the prosecutor knows in her heart of hearts that she cannot be impartial, she must step down Mary Gasparini continued with fraudulent claims against me, implicitly admitted that the claim was fraudulent, and outside of her jurisdiction when she hastily withdrew it AFTER the referee already granted it, but did not disqualify herself from the proceedings. In fact, she did not disqualify herself even though I sued her – correctly – for fraud upon the court. Go figure.	No, Mary Gasparini definitely did not change THAT position, she will fight tooth and claw until she makes sure that I do not have my license. I believe that such phrases as “I hope she will sleep well at night” will be lost on her… I wonder who is Mary Gasparini related to that she is so fearless in her unlawful actions, though. But, that remains to be discovered, isn’t?

What is there in the mode of address?

The referee keeps calling me "Ma'am" on the recording (see my previous post).

"Ma'am" is usually the mode of address to a female stranger.

Referee Sirkin surely knew (1) my name; (2) my title - "counselor" or "counsel".

He even used the term "counselor" sometime down to the middle of our interaction in the recording.

Yet - surprise! - referee Sirkin has NEVER ONCE used this term "Ma'am" when addressing Ms. Gasparini.

Or - is it a surprise at all?

How could Referee Sirkin get to decide on evidence if he never scheduled a hearing to admit evidence?

The Appellate Division 4th Department advised me that my attorney disciplinary proceedings are "confidential", "sealed", and that the prosecution's motion for a summary judgment on liability that Referee Sirkin "granted" today was "sealed", too.

Referee Sirkin was ordered by the court only to hear the evidence and report to the court about his findings of fact on that evidence.

To hear the evidence, Referee Sirkin had to at least schedule a hearing where the evidence would be introduced.

Referee Sirkin did not schedule a hearing and did not hear the evidence, and refused to do that.

Then, the question comes - where did the Referee Sirkin get the motion that he "granted" without authority?

Who gave it to him, if all evidence he was supposed to review had to come at a hearing that he never scheduled?

Referee Sirkin admits in a recording that his duties were to "hear and report" to the court, but instead grants the motion to the prosecution without any hearing

Here is the audio recording of my conference with Referee Sirkin today.

See my previous posts today for the details of what was supposed to occur today in my scheduling conference and what instead occurred.

See also that I posted on Facebook and on this blog an invitation to the public to come to my proceedings that Referee Sirkin cut off by denying me a hearing that the court ordered him to do (without any authority, but he does not seem to care).

Apparently, the 4th Department was alerted of the invitation and reacted the following day by a letter that the court alleged it has faxed to my unplugged fax machine that gets switched on only when I am SENDING something myself.

I say the disciplinary referee Sirkin once in my life - in October of 2014 when he invited me for another "scheduling conference", to wake up at 5:00 am and get to Syracuse, NY by 9:00 am only to hear that Referee Sirkin adjourned the proceedings because of the motion that I filed with the court 2 weeks prior, while he knew about the motion ahead of time.

Apparently, Referee Sirkin had a pleasure of having the power to bring me before him to tell me that he cannot proceed, instead of sending ahead a letter or having his assistant call me and notify of the adjournment.

The same, only worse, trick Referee Sirkin played on me today.

Today, in the view of Referee Sirkin, I had to risk my life and travel over icy and yet uncleared morning mountain roads, under "winter weather advisory" conditions to get in time from Delhi, NY to the conference in Syracuse NY by 9:00 am, so that Referee Sirkin would have an opportunity to tell me that he will not give me a hearing that the court ordered him to conduct.

I was ready to actually come to that conference, and the only thing that interfered with my plans is inclement weather this morning.

Below is the letter I sent to Referee Sirkin early in the morning when we could not get out of Delaware County because of inclement weather and bad weather advisory.

 I sent to Referee Sirkin this morning a letter advising him that I cannot get through the local roads because of the inclement weather and provided as proof of bad weather (because I suspected that Referee Sirkin will not believe anything I say) two things:

(1) the inclement weather warning;
(2) the school delays warning

Yet, when I called at 9:00 am to appear by phone, Referee Sirkin stated in our conversation that he allegedly drove 60 miles from Rochester, that the roads are clear, the temperature is above freezing, and thus hinted that I was not telling him the truth about the weather in Delaware County.

The logic of the Referee is staggering - because the weather is above freezing 100 miles from Delaware County, there cannot be snow or ice on the roads in Delaware County, even if the weather advisory and a witness who is the resident in the area says the opposite.

The Referee also acknowledged on the recording that his duty was to "hear and report" to the court the factual findings, yet, failed to explain why, instead of scheduling a hearing, as the court ordered him to do, the Referee instead made a finding in favor of the prosecution without any hearing.

There will be a long pause in the recording while the secretary is calling the judge to the phone.  The length of the recording is 21 minutes 29 seconds.

Close to the end of the recording, around the end of the 20th minute and further on, you can hear that Referee Sirkin ended the conference with me, but did not disconnect the phone and continued to discuss me, behind my back, in an ex parte manner, with the prosecutors.

Unfortunately, my dogs who came back from their walk and where exuberant, apparently alerted Referee Sirkin and Mary Gasparini that they still did not disconnect the phone and that I can still listen to what they are discussing, and disconnected the call.

Yet, what was recorded was enough to be used as an evidence of an ex parte communication between Referee Sirkin and Mary Gasparini, and who knows how many of those ex partes occurred in the past, without any opportunity for me to prove them.

Here is my conversation with Referee Sirkin (with Mary Gasparini present in Syracuse and me appearing by phone).  When you click the link, it will bring you to the web page where the voice file is uploaded.  You can either download the file to your computer and listen to it this way, or click the "play" button (it does not say "play", it shows a symbol "play" - a triangle in the middle of the bottom of the page) and you can play the voice file this way right there on the webpage.

For the information of those who would like to complain about me to various authorities for "surreptitiously" recording my conversation with Referee Sirkin, I would like to disappoint you by stating that:

(1) it is legal to record a conversation by the party to the conversation without seeking permission from other parties;

(2) it is not illegal to make an audio recording of court proceedings, only a video recording, and I did not and could not do a video recording on the phone today.

I had absolutely no faith that the stenographer will take the record correctly, and my own previous experience with this stenographer, as well as People v. Walker and Walker v. Sirkin that I described in my earlier posts confirm my fears, that Referee Sirkin and stenographers he hires is not to be trusted with preserving the record correctly.

The NYS Appellate Division 4th Department allegedly delivered a fax to my unplugged fax machine advising me that my desire to have a public trial is not dispositive

Just got a personal delivery from a "judicial courier"  Carol Howard of the following correspondence from my disciplinary prosecutor Mary Gasparini.

There was no fax path on top of the letter, so I presume Ms. Gasparini has faxed her "confidential" letter to the local courthouse and unsealed the proceeding.  But - Ms. Gasparini can do it, I can't.

First, Ms. Gasparini, in her today's letter attempted to insinuate that I lied to Referee Sirkin claiming that I did not receive any faxes from her or from the Appellate Division 4th Department.

Apparently, in Ms. Gasparini's view, if I could fax my letter to Referee Sirkin this morning, I lied that my fax machine did not receive anything from her or the court.

Yet, Ms. Gasparini has received numerous letters from me, with the letterheads clearly stating that the fax number that is shown on my letterhead is "not for service".

Fax transmissions can also be lost, garbled, and you can be "presumed to have been served" while you have in fact received no transmission.

For the reason that I simply have a right to refuse service by fax, and I do, and for the reason that service by fax is unreliable, I simply switch off my fax machine and use it only to SEND documents, but not to receive them.

I would love to see the transmission report from the 4th Department court showing that their alleged fax transmission of January 9, 2015 got through to my SWITCHED OFF AND UNPLUGGED fax machine, but I know that I will never get it.

Ms. Gasparini included with her letter hinting that I lied to Referee Sirkin the letter from the 4th Department Court dated January 9, 2015 that was allegedly faxed to my unplugged fax machine.

Here it is:

In this wonderful letter, the clerk of the Appellate Division 4th Judicial Department advises me that I will not be allowed to have the public and the media come to my proceedings unless I make a motion to the court and ask for the court's permission to do that.

Obviously, the court does not recognize an attorney's due process right to have the proceedings open to the public and the media "as of right", without any necessity to seek court's "permission" or give the court reasons why opening my disciplinary proceedings should be permitted.

Imagine that a criminal defendant has to make a motion to the court asking the court to graciously allow him or her to have his or her proceedings open to the public.

The stigma and loss of rights associated with attorney disciplinary proceedings is comparable to the criminal proceedings, to the point that the U.S. Supreme Court repeatedly recognized such proceedings as "quasi-criminal" in nature.

Well, I guess I will have to contest constitutionality of the court's actions in other forums.

Also, since Referee Sirkin denied me the right to a public hearing before I had the opportunity to react or file a motion to the Appellate Division (while the Appellate Division gave me a deadline to make such a motion, in the previous letter, by February 6, 2015), the question that I was denied my rights to a public hearing on issues of liability remains open.