How does one award attorney fees against a counsel that LEFT THE CASE before the motion hearing?

As Judge Lebous' decision demonstrates - with ease, even though litigating something against attorney who is no longer attorney of record is obviously unlawful.

But, in my case, unlawfulness never stopped judges from acting, especially when the real reason is personal retaliation.

Is it legal for a judge to order an attorney to reimburse another attorney for the bribe paid to a disciplinary prosecutor

It is a rhetorical question, isn't it?

Of course, it is illegal.

So, this is then the answer as to the legality of Judge Ferris Lebous' judgment requiring me to pay the legal fees of the law firm (Hiscock & Barclay of Albany, NY) of my husband's disciplinary prosecutor John Casey when there is a huge appearance that the law firm was hired as a payoff to John Casey in exchange for non-prosecution of influential attorneys Richard Harlem and Robert Harlem by the attorney disciplinary committee of the Appellate Division 3rd Department.

And, the Appellate Division 3rd Department where the corruption occurred, is uniquely disqualified from hearing an appeal from this case - but I bet that they will hold onto it in a death grip.

My question is also - is it judicial misconduct for a judge, to order an attorney, within a 20 day period of time, to reimburse another attorney for the bribe he paid to a disciplinary prosecutor?

Will the NYS Commission for Judicial Conduct have the spunk to answer that question?  Will the feds?  Will the appellate court?

Reliance on legal authorities is overrated when the judge's own misconduct is the issue

Many times various judges pointed out to me that simply stating that something is not fair, or not constitutional in my legal opinion as a trained legal expert (which trained legal expert I will remain, by the way, whether the retaliative judicial system will or will not yank my law license) - is not enough, that I must provide legal authorities that would "support" my legal opinion.

That point of view is, of course, erroneous, because any reasonable individual, attorney or not, can have an ability to interpret the U.S. Constitution and claim its protections as a matter of due process of law.

In fact, courts may not amend the U.S. Constitution by interpretation and may not create rights that did not exist before that cannot be directly derived from the U.S. Constitution without the interim interpretation by the courts.

To hold otherwise is to give courts authority they are not given by that same U.S. Constitution.

To hold otherwise is to foreclose even a possibility of having cases of first impression and developing the law.

Yet, ability of anybody, attorney or not, judge or not, to directly interpret the law is not the point I am making now. 

The point I am making now is equality under the law and practicing what the courts preach, when the issue turns on the judge's own misconduct.

In a recent decision, Judge Ferris Lebous of Binghamton, NY, refusing to recuse because it was not him personally, but his chambers engaged in an ex parte communication with a person who WAS opposing counsel at the time before jurisdiction of the court abated due to the death of his client (at the time ex parte communication occurred), provided NO legal authority whatsoever - none - supporting his position that ex parte communications with a judge's "chambers" is not the same as ex parte communication with the judge himself and obviously, not within the prohibition for ex parte communications.

Also, Judge Lebous testified on behalf of my opponents and on his own and his staff behalf in the decision (unsworn testimony, of course) by stating what his rules are, what he allows his staff to communicate with attorneys and parties about - while Judge Lebous did not make a statement that he verified with the staff what the communication was about, and while the billing statements provided to the court clearly indicated that the communication was on the merits of the case and NOT about scheduling.

Once again my husband and I are given to understand that rules created by courts, and laws created by the New York legislature - are not for the courts to abide when we are concerned.

One more argument in favor of introduction of peremptory challenges to judges in New York

How much is too much for the judge to HAVE to recuse?

The U.S. Supreme Court has ruled in 2009 that accepting $3 mln in an election campaign and then casting a decisive vote to overturn a $50 mln dollar judgment on appeal for the parties who made the $3 mln contribution is a violation of opponent's due process of law.

So, refusal to recuse is not always only up to a judge.

Yet, New York court continued to believe it is.

I repeatedly catch judges in ex parte communications.

Some recuse, some adamantly continue - and retaliate.

It is nearly impossible to get through to the U.S. Supreme Court.

The U.S. Supreme Court does not consider cases interesting or important, oftentimes unless the issue has hit the press big times - or, as in Judge Benjamin's case, the issue is buying a judge through a campaign contribution for $3 mln.

So, if somebody bought YOUR judge for less - that somehow becomes less of a due process problem?

Or, if somebody engaged in an ex parte communication with the judge for a period of time suggesting discussion of the merits and not simply "scheduling" - it is still in judge's hands and "discretion" to decide whether he must or must not recuse, even though the court rules and the U.S. Supreme Court cases mandate recusal where there is an appearance of impropriety.

Yet, judges have a very permissive view of what does or does not appear improper to a reasonable and objective member of the public.  In fact, judges believe that THEY are that reasonable and objective member of the public, and that they are objective enough to analyze their own conscience (where existence of such conscience is unprovable and unverifiable).

And the stubborn refusal of clearly conflicted judges to recuse from cases where ex parte communications occurred, whether with judges directly, or with their "chambers", is one more argument in favor of introduction of:

1) peremptory challenges of judges;
2) voir dire of judges who are making any factfinding decisions.

A rule of Judge Ferris Lebous: when caught red-handed in an ex parte communication - attack the challenger

In the case Neroni v Harlem in Delaware County Supreme Court, Index No. 2011-547, my husband has sued Richard Harlem, his law partners, his law firms and his Mokay clients for fraud - based on their inconsistent statements between two courts, Supreme and Surrogate in the probate proceedings of the decedent Andrew Mokay.

Of course, since then, the inconsistent statements have grown many times, but at the lawsuit was contained to these two sets.

The now running from the office he sought so much Judge Carl F. Becker dismissed that lawsuit at the pre-answer stage, with sanctions against my husband and I for frivolous conduct - specifically, for invasion of privacy of members of a conspiracy to defraud a court, where all members of the conspiracy were either attorneys, or public figures working for the court system - a sitting Supreme Court justice, his law clerk and his secretary (in the future, his wife).  

Names of these people were Robert Harlem (the judge and father of Richard Harlem, Robert Harlem was also admittedly the mastermind of the frivolous 8-year-long Mokay litigation that becomes unglued after the ex parte secret trial as we speak), Robert Harlem's court secretary (and future wife, now widow) Irene Mann/Harlem, Robert Harlem's law clerk Dennis Dineen who now is still employed by the State of New York and paid by the taxpayers.

The lawsuit referenced open public records of the Otsego County Surrogate's Court, showing that what Richard Harlem and his father did in the Mokay litigation, defrauding my husband and several courts, was not an accident or mistake and that they've done it before and escaped unscathed.

Judge Becker has never been known as a good theoretician in law.  Neither was his law clerk.

That, combined with his hatred of my husband and myself, resulted in a stunning decision where he punished both of us for referencing open public records as evidence against the Harlem defendants and the Mokay defendants.  

Apparently, in Becker's view, referencing open public records was somehow invasion of privacy of retired judge Harlem, his wife (not a party to the proceeding) and his former law clerk (not a party to the proceeding).

The sanctions also showed an interesting side of the court-created rule of frivolous conduct - that judges have authority to protect individuals who are not both parties in litigation and not parties to litigation and thus become advocates in the proceedings.

The sanctions were imposed at the stage of pre-answer motion to dismiss where all statements of my husband (plaintiff in that action) were PRESUMED TRUE, and when all pleadings were supposed to be reviewed in the light most favorable to my husband.

Decisions on a pre-answer motion to dismiss are not deemed decisions on the merits.

Yet, Judge Lebous treated Judge Becker's decision as a decision on the merit, refusing to vacate it despite the fact that Judge Becker clearly exceeded his authority by sanctioning us for allegedly stating something untrue - when the law presumed the statements to be true - while dismissing the case without reaching the merits in the pleadings.

At the time he made the determination, Becker was a participant in the fraud that was alleged in the Neroni v. Harlem and was clearly disqualified from making any rulings.

When a judge exceeds his authority, an appeal is not necessary, an order made in excess of authority can be addressed by a simple motion to address lack of jurisdiction to make certain decisions.

That motion was made.

That motion was rejected by Judge Lebous on the basis of "collateral estoppel", as if the decision of Judge Becker was on the merits.

And it is clear WHY Judge Lebous fought so vigorously and un-valiantly to have us punished and to stick attorney's fees for fraudsters against us:

Judge Lebous, same as Judge Becker, same as Judge Dowd, engaged in ex parte communications with Richard Harlem's representative before he made his decision.

Of course, Judge Lebous tried to deny it by stating that his "chambers" were authorized to discuss "scheduling" with all attorneys.

Yet, when Richard Harlem's attorney provided a billing statement to the court, the billing statement did not indicate that the 12-minute (!) discussion with Judge Lebous' "chambers" was of scheduling.

Seriously, an attorney does not need to discuss "scheduling" with the judge's "chambers" twice, and especially at the time when the court's jurisdiction abated due to the death of that attorney's client (Robert Harlem - client of David Cabaniss) and when David Cabaniss lost authority to represent that client.

Moreover, discussing anything with the judge's personnel is an equivalent of discussing it with the judge himself - yet, Judge Lebous happily made a distinction in his order, stressing the work "chambers".

That means, for purposes of prohibition on ex parte communications, in Judge Lebous' view, that he can allow his personnel (including the law clerk who authors his decisions) to engage in ex parte communications - and then claim that he is free and clear and did not engage in the ex parte communications HIMSELF.

Of course, if the ex parte communications occurred through an agent of a judge, that did not make it any less improper than as if the judge did it himself.

Richard Harlem's attorney "explained away" the 12-minute communication with Judge Lebous' "chambers" by stating that he allegedly discussed with Judge Lebous' "chambers" certain scheduling.

Yet, at the time of the discussion, Judge Lebous had no authority to do anything in the case because at that point, one of the parties to the action (Robert Harlem) died, and his attorney David Cabanis was no longer his attorney, he lost his authority to represent anybody in the action until the substitution of Robert Harlem's estate into the action.

At the time of the ex parte communication, no such substitution was made, so no scheduling discussions could be held.

Moreover, the billing statements, submitted with an affirmation that they were true and correct and that they were "business records", did not require additional explanation (being "business records"), and clearly and unambiguously indicated that what was discussed was NOT scheduling, but was the MERITS of the case - which is within the core of the prohibition of the ex parte communication between judges and attorneys.

Of course, Richard and Robert Harlem's attorney David Cabaniss was caught, through his own billing statements, in ex parte communications not only with Judge Lebous' "chambers" - twice - but also with Judge Becker's "chambers", he talked with Judge Becker's "chambers" for 12 minutes on the day before the motion hearing.

Of course, Richard Harlem and his "trial counsel" James Hartmann were caught since then in ex parte communications with Judge Dowd's law clerk - who is authoring Judge Dowd's decisions and making and communicating e-mail orders for Judge Dowd.

If ANYBODY ELSE would be caught, repeatedly, in ex parte communications with judges in related actions - that attorney would be sanctioned and disciplined.

Not Richard Harlem or attorneys who he hires - because Richard Harlem very obviously has a special status in court, not only as a judge's son, but also as the landlord of many years for the influential Republican Senator James Seward - whose attention is now catered by Becker's buddy and aspiring successor Porter Kirkwood.

Yet, we have seen lately several people who were deemed "unsinkable" and yet who took a dive toward "early retirement"/resignation (Becker) or federal criminal charges for corruption (Silver and Skelos) because, very apparently, New York state does not recognize corruption in the government as a crime and assigns the New York State Attorney General to represent the corrupt officials instead of investigating and prosecuting them.

The feds are currently vigorously investigating corruption in New York State government.

I turned into the Federal Trade Commission the actions of John Casey, the disciplinary prosecutor of my husband AND of Richard and Robert Harlems, who sold his prosecutorial discretion in exchange for the right to have Richard Harlem and Robert Harlem as paying clients of his law firm.

By endorsing that deal by ordering my husband - and myself - to reimburse Richard Harlem for the bribe he paid to my husband's disciplinary prosecutor, after TWO ex parte communications with Richard Harlem's attorney and John Casey's law partner David Cabaniss  - Judge Lebous became a part of that federal crime of theft of honest services of a disciplinary prosecutor.

John Casey, partner of David Cabaniss, and, through that partnership, attorney for Richard Harlem - at the same time John Casey was supposed to investigate and prosecute Richard Harlem as a disciplinary prosecutor, on my husband's and my own complaint.

But once again - with all the support from the former disciplinary prosecutor, with all the support from the law firm Hiscock & Barclay employing NY Senator Neil Breslin, with all the support of Richard Harlem's landlord NY Senator James Seward, relying upon support of a New York Senator may prove imprudent, in view of suddenly rising statistics of NY Senators being charged and indicted for corruption by the feds.

So,  if I were Richard Harlem, I would not be that secure in the feeling that he is "unsinkable" because he is backed up by James Seward and by the law firm of Senator Neil Breslin...

Being backed up by a New York Senator may prove feeble protection these days...

As to Judge Lebous - an appeal will show just how correct Judge Lebous was in deeming his "chambers" as being separate from himself for purposes of ex parte communications, and I wonder what would the feds and the NYS Commission for Judicial Conduct will say about confirmed ex parte communications between Judge Lebous' "chambers" (as well as Judge Beckers, and Judge Dowd's) with Richard Harlem and his hired hands.

On the other hand, at the background of Judges Becker, Lebous and Dowd who were caught in ex parte communications and retaliated for being caught through court cases,  Judge Christopher Cahill of the Ulster County Supreme Court who "only" threatened to turn me into the disciplinary committee for challenging him on the spot as soon as he completed an ex parte communication with the opposing counsel Dolores Felice (Delice) Seligman of Kingston, NY, but recused from the case - seems nearly as a paragon of virtue (even though the NYS Court Administration destroyed court camera footage of Judge Cahill's misconduct in order not to give it to me on a FOIL request).

Well, well, well...  Aren't we all in the judicial system feeling insecure when we are confronted with a clear EVIDENCE of misconduct...

Judge Lebous' decision in trying to make a "distinction without a difference" between ex parte communications with "chambers" vs. himself surely qualifies (in my opinion) as such insecurity.

Judge Lebous: the Neronis should pay the fraudsters' attorney fees for "invasion of privacy" of the late judge Robert Harlem and his co-conspirators in fraud, for referencing public records of that fraud in court papers

Judge Ferris Lebous continues the legacy of the soon-to-be-retired Judge Becker by imposing attorney's fees, in the amounts of thousands of dollars, with a severely restricted deadline for paying them, for "frivolous conduct" consisting of violation of privacy of public officials by exposing their misconduct by referencing public records (open court records and records about their position and salary, also publicly available) in court proceedings.

Neither Judge Lebous nor Judge Becker paid any attention to the fact that such conduct is perfectly legal.

As to both Judge Lebous and Judge Becker there are documents showing that there were ex parte communications with their "chambers" by Richard Harlem's attorney for lengthy time and without any explanation, before the decisions imposing sanctions and/or attorney's fees were made.

It is obvious that, for Judge Lebous, it does not matter that he is imposing sanctions upon us for lawful conduct - as long as he imposes sanctions upon us, because my husband exposed Judge Lebous' ex parte communications with Richard Harem's attorney, and we are thus enemies of Judge Lebous that must be punished no matter what.

I definitely refuse to be used as an ATM machine for Richard Harlem and his crew, especially because one of the Mokay clients of Richard Harlem has recently came clean and undid the whole Mokay litigation, after the ex parte secret bench trial, and exposed the Mokay litigation (based on which Lebous imposed the sanctions) for the major fraud that it is - with just one sworn statement, posted here.

As long as a judge violates the law without "impure motives", that's ok

Here is what the website of the New York State Administration says about retirement of attorneys from the practice of law:

So, full-time judges are deemed retired from the practice of law and may not practice law as a requirement of two provisions:

I. New York State Constitution:

• Article VI paragraph 20.b(4)

• b. A judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate's court, judge of the family court or judge of a court for the city of New York established pursuant to section fifteen of this article who is elected or appointed after the effective date of this article may not (4)  engage in the practice of law, act as an arbitrator, referee or compensated mediator in any action or proceeding or matter or engage in the conduct of any other profession or business which interferes with the performance of his or her judicial duties.
• Article VI paragraph 26 (j)(2) - temporary assignment of judges;
•              "(2) In addition to any temporary assignments

             to which a judge of a city court may be subject
             pursuant to paragraph one of this subdivision,
             such judge also may be temporarily assigned
             by the chief administrator of the courts to the
             county court, the family court or the district court
             within his or her county of residence or any
             adjoining county provided he or she is not
             permitted to practice law."

II.  22 NYCRR 118.1(g)

Yet, despite the above requirements of the law, judges give legal advice left and right to litigants, their attorneys, engage in secretly giving legal advice to friend and family members and, when caught red-handed, claim that they really did not do any harm, as Judge Robert Harlem said in his affidavit to the Otsego County Surrogate Nettie Scarzafawa (see my blog post the Blanding saga).

This is what the retired Judge Robert Harlem said in his affidavit to the Otsego County Surrogate's Court:

Apparently, it is not enough for the judge that he has violated his constitutional oath of office and the court rule pertaining to full-time judges deemed to be "retired" from the practice of law, 22 NYCRR 118.1(g), with all consequences of such retirement, that a retired attorney may not continue to practice for a fee.

The fee of Judge Harlem from Beatrice Blanding was tremendous see the will he has drafted with multiple bequest to himself listed in the Blanding saga post.

Yet, to Judge Harlem, violating the State Constitution, the court rule and his own oath of office to uphold the State Constitution is not bad enough, and he is trying to justify himself by his closeness to the decedent and by not having "impure motives".  Obviously, self-bequests of hundreds of thousands of dollars worth of property was not impure motives in the late Judge Harlem's eyes.

Judge Nettie Scarzafawa accepted that argument, did not sanction the retired judge and her own predecessor for unauthorized practice of law and defrauding the court, and, soon after that decision, stepped down from the bench in 2000, allegedly to take care of her elderly mother.

Retired Judge Nettie Jean Scarzafava was married to John Scarzafava until his death in 2014.  John Scarzafava was hired by Richard Harlem as a trial attorney in the Mokay action, a complete discqualification of which Richard Harlem knew. 

Richard Harlem also hired the law firm of my husband's disciplinary prosecutor (who was supposed to prosecute Richard Harlem and his father on my husband's complaint about their fraud).

John Scarzafava had the good grace to eventually refuse to represent the Mokay plaintiffs in the Mokay saga.  

John Casey's law firm, Hiscock & Barclay of Albany, NY, didn't have such good grace, and continue to claim attorney fees (which Judge Lebous, retaliating against exposure for his personnel's ex parte communications with Richard Harlem's attorney, granted).

John Casey and his law firm are exposed at this time to liability for antitrust violations, based on the U.S. Supreme Court's new pronouncement in North Carolina Board of Dental Examiners v. FTC in February of this year.  We will see how that lawsuit will proceed.

The interesting part about availability of discipline against judges practicing law is that attorney disciplinary committees refuse to prosecute them, claiming that any conduct committed by a judge during his or her judgeship is subject to only judicial discipline and not attorney discipline.

An even more interesting part is that retired judges who discharge judicial functions as judicial hearing officers are not subject to judicial discipline, because they are no longer sitting judges (and the New York State Commission for Judicial Conduct claims it does not have jurisdiction over their discipline) and are not disciplined by attorney disciplinary committees, because for attorney disciplinary committees such retired judges appointed as referees or judicial hearing officers are still "judges" and, as such, are beyond attorney discipline.

Attorney discipline and judicial discipline in New York are two fascinating subjects...

Now, try violating the law and then appearing in a court of law, admitting the violation, but claiming that you really did not have impure motives to violate the law.

See how far you will get with that argument if your are not a judge.

Of course, you should choose to run this experiment in your mind - if you are not a judge.  It may have dire consequences for you, because not only your lack of "impure motives" does not matter if you violated the law, and knowledge of the law that you violated is PRESUMED in EVERY PERSON - and, of course, it was presumed in a Supreme Court judge and Chief Administrative Judge of the 6th Administrative District, as Robert Harlem was.

So - once again, let's raise our glasses for the rule of law in the State of New York that exists in our aspirations - and nowhere else.