It is illegal to jail an attorney for talking about her own disciplinary case - but when did the illegality of what she is doing stop attorney Mary Gasparini?

In 1978 the U.S. Supreme Court decided a case, Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 839 (1978) that invalidated the law restricting publication of confidential records
of judicial discipline proceedings on the basis of 1st Amendment and the public's right to know about issues of judicial misconduct discussed in those proceedings.

My disciplinary prosecutor Mary Gasparini was admitted to the bar in 1992.

Attorneys in New York get admitted to the bar at the age of 25-26 y.o. (a New Yorker graduates from high school at 18 + 4 years of college + 3 years of law school plus half a year until admission to the bar in January of the next year after graduation), so that puts her year of birth at around 1966. 

Mary Gasparini was approximately 12 years old when the U.S. Supreme Court case-on-point Landmark Communications Inc. was decided, Mary Gasparini did not even graduate from high school yet, but already learnt how to read (even though the way she acts suggests she lost the skill by now).

And, following the glorious traditions of disciplinary prosecutors in the State of New York, Mary Gasparini apparently lacks intellectual curiosity or due diligence to read applicable cases before attempting to charge people criminally.

May Gasparini attempted to charge me for "criminal contempt of court" for talking about my own disciplinary case on the blog, which is, according to Mary Gasparini, in violation of a court order based on Judiciary Law 90(10) which deems all records of attorney disciplinary proceeding "sealed".

Of course, it is technically impossible to seal all the public records upon disciplinary inquiries and proceedings against attorneys are based, see my blog post here listing mutliple exhibits from my disciplinary cross-motion which are "deemed sealed' by the same court order that Mary Gasparini claims I violated by talking about my disciplinary proceedings.  All of the "deemed sealed" papers remain in open access to the public, and custodians of such papers remain happily unaware that the papers are actually "deemed sealed".

Moreover, the same court where Mary Gasparini practices, NYS Supreme Court, Appellate Division 4th Judicial Department, recently held that Judiciary Law 90(10) has a dual function and protects confidentiality of:

(1) the complainant if there is one in the proceedings (there is no complainant in my disciplinary proceedings, the petition was directly filed by the Committee for Professional Conduct without a complainant, plus the Petition is available on Pacer.gov since the case was removed by me to a federal court and was not sealed by the federal court when it was remanded back to the state court) and

(2) the attorney who is the subject of the disciplinary proceeding, and I have expressly waived my own privacy, as any competent adult in the State of New York can do without any permission from anybody, and requested the court to make my proceedings public.

Yet, despite a precedent of the U.S. Supreme Court on point which was decided before Mary Gasparini graduated from high school, and despite a precedent on point from her own court, the 4th Department, decided 6 years ago, Mary Gasparini rages on in her desire to punish me for violating my own privacy.

Of course, to put me in jail for violating my own privacy is beyond stupid, but when did that stop any government from acting, no matter how stupid and unlawful the action can be?

I guess, my privacy will be better protected in jail - thank you, Mary Gasparini, for your concern about me and my privacy, it is touching...  Even though, as I said before, let me sugar-coat the word a little bit - it is disingenuous (which in legalese means "stupid").   

When the decision-maker and the expert in regulation of the market are market participants - protection of consumers goes out the door

Heard an argument before the U.S. Supreme Court today (see the previous post) for and against using private professionals, market participants, for regulation of the same market.

The case was about teeth whitening and whether it is the practice of dentistry.

The U.S. Supreme Court justices definitely were not experts in dentistry.

Yet,  I heard arguments from the judges about who should regulate neuro-surgeons and why shouldn't neuro-surgeons (experts) regulate neuro-surgeons.

My question to the judges then is - why are they there on that bench and why do they allow themselves to decide a case about regulation of dentistry instead of allowing dentists to get on that bench and decided it for themselves?

The ultimate question, in my opinion, is the distinction between the two groups which are now conflated:

(1) the panel of who decides for the benefit of protection of consumers (which is the whole declared point of occupational licensing);  and

(2) the experts that the panel that is vested with making such decisions use to inform them, as neutral experts, of what they need to know.

That is exactly the same as what is happening in courts.

A judge (like the U.S. Supreme Court justices in this case) is not an expert in dentistry, chemical engineering, dentistry, medicine, whatever is the topic of the case in front of the judge.

(If a judge is an expert in law, and the case is about regulation of lawyers, the judge should not be using his or her expertise, because that will mean utilizing unsworn and un-told testimony of the judge as a witness on behalf of one of the parties.)

Yet, when the judge or the jury, however the case is heard, by a jury trial or by a bench trial, does not have enough knowledge in a particular field to make an informed decision, that is when the party bearing the burden of proof must bring forth before the court a NEUTRAL expert to provide this missing information.

A practitioner in the field is hardly a neutral expert.  For purposes of a case involving occupational licensing, neutral experts would have to be researchers with knowledge in the same field, but with no financial motivation in restricting competition in the profession.

Lawyers are a knowledgeable bunch and they know exactly what is going on and why they want to keep the status quo the way it is.

Unlike a court where both the decision-maker and the expert informing the decision-maker must be neutral, disciplinary proceedings in occupational licensing are where the decision-maker and the expert informing the decision-maker are ONE and NOT NEUTRAL - which is a big anti-trust and anti-competitive problem.

Such a regulatory scheme which is allegedly designed to protect the public, is in fact designed to do the opposite.

In the legal profession, where all judges on the panels regulating lawyers are lawyers themselves who, on expiration of judge's terms or on retirement, will practice law, even though they are not practicing (presumably) at the time of presiding over the proceedings, such judges may not be 100% considered not private market participants, at least with a vested, but delayed interest in restricting competition in their profession for personal gain.

What should be happening in the legal profession is that it should not be regulated at all, since regulation of lawyers by the government strips lawyers of independence when a necessity arises, on behalf of clients, to challenge actions of any of the three branches of the government, and strive to obtain an impartial judicial review of their claims.

The oral argument before the U.S. Supreme Court whether market participants appointed to regulate occupational licensing may be deemed private actors for antitrust purposes

This is the case of The North Carolina State Board of Dental Examiners v. Federal Trade Commission which has made it all the way to the U.S. Supreme Court.

The essence of the case is that private dentists on the North Carolina Board of Examiners pursued lay individuals engaged in teeth whitening for unauthorized practice of dentistry, and the question is whether that is proper enforcement of state interests or private anticompetitive practices.

The interesting part is that there is an amicus curiae brief filed raising the question that the state bar associations are engaged in the same type of anti-competitive practices as the dental associations.

The case was heard by the U.S. Supreme Court in October of 2014.

Listen to the oral argument - it is quite interesting.  The link to the oral argument in front of the U.S Supreme Court is located here.

The way the legal profession is regulated (at least in New York) is by disciplinary committees where the absolute super-majority of such committees consists of practicing private attorneys, all members of the committees are appointed by the courts without any supervision and in complete discretion, there is no oversight over committee's work and there is no discipline over misconduct of committee's members.

There are no constraints, therefore, to use the membership of the committee for any number of anticompetitive practices rather than for the direct purpose of protecting the public, and what helps that is:

(1) supermajority of the committees are practicing private attorneys;
(2) there is no oversight over appointment of members;
(3) there is no oversight or discipline over conduct of members;
(4) discretion of members to prosecute or not to prosecute is absolute;
(5) members are free to pursue their own competitors and to absolve politically-connected attorneys turned in for prosecution in exchange of accepting them as private clients or law partners.

All of the above hardly characterizes a state regulations, but rather using the state regulatory scheme to promote anti-competitive self-interest of the politically connected private lawyers, to the detriment of the consumers.

Let's see what the U.S. Supreme Court will rule regarding the dentists' case.

The appeal is from the decision of the U.S. Court of Appeals for the 4th Circuit affirming the decision of the Federal Trade Commission that the North Carolina State Board of Dental Examiners illegally thwarted lower-priced competition by engaging in anticompetitive conduct to prevent non-dentists from providing teeth whitening services to consumers in the state.

The amicus brief of LegalZoom and others supporting the position that the practice of the states to use private professionals to regulate other professionals may be regarded as a private tool of quashing competition can be found here.

The amicus brief of the North Carolina bar association supporting the ongoing regulation of the legal profession through the use of private lawyers can be found here.

Another interesting quote suggesting an interesting parallel...

"It was obvious to every unprejudiced observer and to the members of the international press present at the trial during these scenes how nervous the ... leadership has become, and it is impossible to overlook how the court was hopelessly failing to meet the ... expectations and simultaneously to preserve a shred of its own dignity in the public eye".

In my disciplinary case, the "unprejudiced observers" and "the members of the international press" were not allowed into the hearing - and even the hearing was ordered, but not given to me, and the disciplinary prosecutor is now trying to have the court put me in jail for even trying to call public attention to the nightmare of lawlessness that my disciplinary proceedings have become.

And yet, it is still impossible to overlook how the New York State Appellate Division Fourth Judicial Department is, same as described in the quote above, failing to meet the expectation of the judicial and political establishment of the State of New York to have me disbarred and now convicted of a crime I did not commit, after an impeccable record in two countries for over half a century,  and to preserve at the same time a shred of its own dignity in the public eye.

And, for the reference, the quote at the beginning of this post was from the book by Ingo Muller "Hitler's Justice: The Courts of the Third Reich", 1999, p. 32, but there uncanny parallels, in my opinion, between what is happening in my "Star Chamber" court insulated from any rule of law and any public scrutiny, and what was described of the German judiciary which endorsed their corporate loyalty and loyalty to "the government" of any kind, right or wrong, over the rule of law.

The "Reichstag Fire" trial was at least open to the public, so the Nazi state at the very least attempted to make a pretense of dignity and of an independent and public court proceeding.

In my case, all such pretenses are tossed to the winds, it is Star Chamber and any attempts to reveal what is happening within the Star Chamber are now sought to be punished as a crime, with a punishment of incarceration and criminal record.

"Once the criminal was identified, it was a simple matter to find out what his crime had been" - an interesting quote

A woman in a Nazi Germany "denounced her husband to the Nazis as a defeatist, in order to get him out of the way so that she could pursue a new love affair.  Her action was consistent with wartime Nazi law. But was that really "law"?  ...  Does a law have to be compatible with basic moral conceptions in order to be truly law?  Or is it enough that the body or person exercising control has said that is its or his will?"

Ingo Muller, "Hitler's Justice: The Courts of the Third Reich", Harvard University Press, 1991, Introduction, p. xvii.

  E.T.A. Hoffman, a judge of the Prussian Supreme Court in the 19th century described the work of police investigations into "subversive activities" in his work "Master Flea":  "..a whole web of arbitrary acts, blatant disregard for the law, [and] personal animosity", id, p. 3.

The tale "Master Flea" describes an investigator who had the following opinion about what comes first - establishing that a person committed a crime or finding a person you want to pin a crime on and pin it:  "When reminded that, after all, a crime had to have been committed for there to be a criminal, Knarrpanti opined that once the criminal was identified, it was a simple matter to find out what his crime had been.  Only a superficial and careless judge would ... not be able to slip into the inquest some small lapse or other on the defendant's part that would justify the arrest", id., pp. 3-4.

Does all of that ring the bell, ladies and gentlemen?

If it does, you should be scared, you should take your heads out of the sand and make sure that your laws in your country can never be subverted the way described above.

Because the legal chimeras that the German legal scholar of the XIXth century described went out of control and grew to become the courts of the Nazi Germany that justified massive genocide by the Nazis.

Once the government starts on the slippery slope of pursuing a person and trying to "pin" upon that person anything the government can find to 'get" that person - and once the courts of that country justify this course of conduct, under various disguises and "legal doctrines' - there is nothing to prevent the slippery slope to further deteriorate into a situation where anything at all that the government does will be endorsed and "legalized" by the courts.

And what happens then, we know only too well from the history of the Nazi Germany.

An alert to the clients of Hiscock & Barclay LLP of Albany, NY and of Harlem & Jervis of Oneonta, NY

I am in receipt of documentary evidence (billing statements) from two law firms, Hiscock & Barclay LLP of Albany, NY and from Harlem & Jervis of Oneonta, New York, which conclusively indicate that the law firms continued to bill their clients at the time when one of the parties in the action died and jurisdiction of the court "abated" (stopped, stayed), and continued to so bill before jurisdiction restored through substitution of legal representative of a deceased part, CPLR 1015.  

The period of abatement of jurisdiction during which both law firms continued to bill their clients continued from September 2012 to May 2013, for 8 months.

Improper billing of clients during abatement of jurisdiction of the court, to me, is a matter of serious public concern which I consider my duty to disclose to the public.

These two law firms have protected status in courts because they are owned and employ relatives of the judiciary and are in business relations with New York State Senators - NYS State Senator Neil Breslin is "of counsel" in Hiscock & Barclays, M. Cornelia Cahill, spouse of the New York State Chief Judge of the Court of Claims Richard Sise is a member (co-owner) of Hiscock & Barclays, LLP; 
Harlem & Jervis was founded by the now deceased former judge Robert Harlm, former Chief Administrative Judge of the 6th Judicial District and by his son Richard Harlem,  Richard Harlem is a long-time landlord to NYS Senator' James Seward's district office in Oneonta, NY.

It is my personal experience that New York civil courts have been consistently changing and subverting court rules, statutes, common law principles and even application of constitutional law in order to grant relief and attorney's fees to these powerful and politically connected law firms, no matter what kind of misconduct the law firms engaged in.

I do not expect civil courts to suddenly change their course and start holding these law firms to the rule of law.  It did not happen before, I doubt that it is going to happen any time soon. 

Since courts seem to be asleep at the wheel and there is no expectation that the courts will ever hold these law firms accountable, I consider it my duty to directly inform the public of these improper billing practices that the public may fall victim to. 

Moreover, Hiscock & Barclays LLP was hired in the case I am talking about by an insurance company.  Thus, any improper billings by Hiscock & Barclays LLP to the insurance company at the time jurisdiction of the court abated and no billing was allowed, should be investigated by the Insurance Fraud Bureau of the NYS Attorney General's office, which is exactly what I am asking the Attorney General to do.

I am turning these two law firm into the appropriate authorities to investigate propriety of the practices described herein.

Stay tuned as to what the authorities have to say about this and if these powerful law firms will even be investigated or prosecuted for their billing practices.

There is no effective legal remedy in New York to stop an appellate court from engaging in an unlawful conduct

I have a problem, for which there is no legal remedy in New York - or on the federal level, for that matter.

And since I am sure that not only I have such a problem, but many litigants, but it "escapes judicial review", for lack of an appropriate remedy, I believe that New York State legislators need to look into creating such a legal remedy, because it is a due process violation for a state not to provide a legal remedy for injuries, especially for injuries involving violations such a fundamental constitutional right as access to courts.

On June 11, 2014, by an ex parte order, the New York State Appellate Division 3rd Judicial Department recused from a case where I was a party.

When a court recuses from one case of a party, it must recuse from all other cases where that party appears.

The 3rd Department refused to recuse from several other appeals pending before the court where I was a party or an attorney, and so far granted three appeals against me in cases where it should have recused and is arbitrarily denying me consolidation of large records on two more appeals, thus harassing me and causing me stress and financial loss.

Usually consolidation of appeals with large records and similar issues is liberally granted.

Appellate Division 3rd Department bent over backwards for attorney (and former judge, now deceased) Robert Harlem and his son Richard Harlem when it dragged a perfected appeal from the court calendar set for oral argument and consolidated it with an unperfected appeal on request from Robert Harlem and Richard Harlem, in violation of its own rules.

Yet, when I asked consolidation in the same case Mokay v. Mokay of two appeals, from a denial of a motion to vacate and from an award of attorney fees stemming from the same decision denying motion to vacate, consolidation was denied to me without any explanation, in violation of my due process right to a reasoned decision by the court.  A denial of consolidation means redoing the record and filing two $315.00 fees instead of one to perfect the appeal.

Similarly, a consolidation was denied in yet another case where the Delaware County Supreme Court, Judge Tormey, after NOT reading the underlying court cases before dismissing my lawsuit against an attorney who defamed and defrauded me (it is an established fact that Judge Tormey did not even sign out the court files to read them before he made his decision).

I appealed both the dismissal and award of attorney fees based on the dismissal.  Naturally, these two decisions came months apart.  Naturally, the records are connected and issues are related.  Naturally, this is a usual ground for consolidation.

I delivered a HUMUNGOUS record taking the entire back of a large station-wagon car to the court, along with a large heavy-duty carrier, THREE times:

(1) the first time on November 4, 2014, on the deadline of perfecting the appeal - but the court was closed for election day when majority of people were working;

(2) the second time the next day, November 5, 2014, when the record was accepted by the court, together with the filing fee - which has not been returned until now, even though the record was returned a couple of days ago - once again;

(3) the third time I redelivered the REDONE record on December 10, 2014 when I made corrections to the record in accordance to the directives of the court, even though required corrections were not required by the court rules and even though the court returned the record on a pretextual basis that I did not include certain required statements into the record, while such statements were in fact in the records with blue-and-red date-stamps of the court of November 5, 2014;

(4) the fourth time I will have to REDO the record once again when the court denied me, without an explanation, my motion to consolidate and the record was dumped on my porch for the second time - while the money for the filing fee was not returned.

The attorney involved in the last described action is a justice in a local justice court.  The attorney representing respondents in the Mokay action is a son of a judge.

For these people, rules of the Appellate court and rules of law are bent and broken and for me, their opponent, additional rules, rules increasing my stress, financial exposure, physical strain and exposing me to pure harassment, are created on the spot.

What remedy do I have for that? None under the law.

1) NYS Commission for Judicial Conduct is a glorified shredder of complaints against judges and courts dismissing without an explanation practically all meritorious claims it receives, and the person who filed the complaint has no standing to contest that;

2) Article 78 under the CPLR providing for a writ of mandamus against judges, does not provide for a writ of mandamus against appelllate judges and courts;

3) New York State Court of Appeals, the court higher than the Appellate Division, has a limited jurisdiction that does not include writs of mandamus against the Appellate Division;

4) suing in federal court is precluded by judicial immunity and by the section in the 42 U.S.C. 1983 (the Civil Rights Act) that does not allow lawsuits against judges in their official capacities.

And - since no legal remedy exists against Appellate courts, appellate courts can do with you whatever they want.  Which is a clear violation of due process of law of litigants in such courts. 

And such a lack of remedy should be legislatively cured.