A prosecutor is part of the judiciary - for some purposes, but not for others

I received yesterday a decision of Judge Kahn on Defendants' "motion for a judgment on the pleadings" asking to dismiss the action Neroni v Zayas where my husband, in claims that survived from the intermediate dismissal, claimed the following:

• that he was not given access to his own disciplinary file in the attorney disciplinary committee - before, during and even AFTER his disciplinary proceedings concluded and when his disciplinary file became, to all who would want to see it, a public record pursuant to Judiciary Law 90(10);
• that somehow it does not constitute any constitutional violation where a member of attorney disciplinary committee engages in post-disbarment investigations - something that the same Judge Kahn said previously that may be a constitutional violation in his previous decision.

Of course, Chief Judge Sharpe, Judge Kahn's superior, in the interim between Judge Kahn's decision # 1 (there may be a constitutional violation in post-disbarment investigations) and his decision # 2 (Plaintiff has failed to state a cause of action for a constitutional violation - in the same pleadings that were the basis of decision # 1), commenced Judge Sharpe's own action for an anti-filing injunction against my husband and included into that action claims based on Neroni v Zayas, over my head as a counsel in Neroni v Zayas litigation, over the head of judge Kahn as the presiding judge in that case, before that case was adjudicated.

Judge Sharpe used the yet-unadjudicated Neroni v Zayas case to punish my husband with a PERMANENT draconian anti-filing injunction that had nothing to do with any possible rule of law (currently on appeal).

So, I understand that Judge Kahn had to think long and hard as to how to adjust his Decision # 1 to Judge Sharpe's anti-filing injunction based on the yet-unadjudicated Neroni v Zayas - and produced a Decision # 2, which makes no sense, if two decisions are compared, but makes perfect sense in terms of obedience to the unwarranted opinion of Judge Kahn's superior.

A more specific analysis of Decision 1, Anti-filing injunction, and Decision 2 by Judge Kahn pertaining to the same case, will follow.

What I can say today is that a precedent has been created indicating that an attorney can be denied access to his disciplinary file before, during and after the conclusion of the disciplinary proceedings.

In my personal opinion, knowing all I know about the workings of the attorney disciplinary committees in general, and of this particular disciplinary committee (of the Appellate Division Third Department) specifically, this precedent was created to protect the committee from the following investigation through discovery:

• that attorney disciplinary committees in the State of New York, and the attorney disciplinary committee of the Third Department, have absolutely no archives and no records of what they are doing and operate as a shadowy - and lethal - force under the rug of the judicial system, without any supervision and without any accounting for their actions;
• that the committee has absolutely no records of who voted to investigate or prosecute an attorney - and how that particular member of the committee voted;
• that when the committee tells the court, in sworn pleadings, to obtain public discipline of an attorney to the point of stripping the attorney of his hard-earned law license, reputation and any ability to earn a decent living for himself and his family (because a disbarred attorney is usually blacklisted and denied employment anywhere he turns), the committee may commit perjury left and right, because - see above - no archives exist, and there is no way for the disciplined attorney to obtain access to the archive to prove that.

Oh, and there is yet another "discovery" by Judge Kahn in his decision.

Judge Kahn, in his decision # 2, was carefully trying to avoid the issue that my husband was trying to get access to HIS OWN disciplinary file, a file cited by the disciplinary committee in the court pleadings (without providing the actual certified copies of documents) and based on which my husband's license was revoked.

In his attempts to avoid the necessity to address the key issue of litigation, Judge Kahn made the following two stunning and diametrically opposite conclusions:

1. Freedom of Information Law (which was irrelevant to my husband's due process right of access to his own disciplinary file) is not applicable to the judiciary (that is correct), and, therefore, was not applicable to the Defendants - making them part of the judiciary (even though they acted in my husband's disciplinary case as prosecutors, and thus, part of an executive branch of the government);
2. My husband (and, obviously, I as his attorney in federal court) is "confused" in arguing that, if the prosecutor is actually part of the same court that was adjudicating his disciplinary proceedings, the disciplinary committee was disqualified from proceeding as a prosecutor in that disciplinary proceedings.

In other words, my husband's claim was clear as day:  a prosecutor may not claim to be a judge for one purpose (to protect themselves from access to the file) and to be a prosecutor for another purpose (claiming that they are not disqualified under the judge-advocate rule and separation of power principle).

Pursuant to Judge Kahn (Decision # 2) - the prosecutor may now be both - they may deny access to the file as if they are a judge, and they may still continue to claim that they were a proper prosecutor.

I would be surprised at such a stark change of opinion, but I am not, for a good reason.

Judge Kahn is part of one of the American Inns of Court where the law firm where my husband's disciplinary prosecutor John Casey who sold his prosecutorial discretion for the right to represent one of the politically subjects turned in (by my husband and myself) for his investigation is a member and may be providing to Judge Kahn and other members of this particular federal district court benefits, not to mention that this law firm, Hiscock & Barclay employs multiple recent former confidential law clerks of judges of the U.S. District Court for the Northern District of New York.

And, partners from Hiscock & Barclay "serve" on committees appointing magistrate judges of NDNY, and partners from Hiscock & Barclay "serve" on committee making local rules for the NDNY.

And, and, and...  Who knows what exactly Judge Kahn may have discussed with John Casey or his partners behind closed doors during his monthly-or-more-frequent meetings behind closed doors in the American Inn of Court?

Who knows what took place during those discussions, what kind of incentives may have been offered to Judge Kahn?

The reason to prohibit ex parte communications to judges is obvious - there is no way to restore what occurred during those communications, and interested witnesses may not be relied upon to produce the record.

One piece of evidence is apparent enough though - comparison of Decision # 1 with Decision # 2 by the same judge, made on the same pleadings, with diametrically opposite rulings - should raise questions and eyebrows.

The rule of law is a chameleon - in Delaware County courts

Before the Mokay trial (see my blog post "the Mokay sage", my April posts and posts that can be obtained by putting the keyword "Mokay" in the search box on this blog on the right of the text) I tried, unsuccessfully, to obtain from Judge Dowd an order forcing Richard Harlem and his law firm to file with the court two boxes of trial exhibits for my review when Richard Harlem was blackmailing me that I had to agree to review of those records before trial at this office, under the supervision of his paralegal, which supervision  Richard Harlem was planning to charge against my client at the rate of $100/hr, because the alternative that Richard Harlem threatened me is to have those records be reviewed at trial, and charge against my client the hourly rate of two trial attorneys - himself and James Hartmann.

I have a phone recording indicating that, as of the time of the threat against my client by Richard Harlem that my client will have to pay for review of the exhibits at the rate of two trial counsel if I refuse to agree to review of the same under the supervision of Richard Harlem's paralegal, at the price tag to my client of over $100/hr, James Hartmann considered himself the sole trial counsel in the Mokay trial and was unaware that Richard Harlem was a second trial counsel in that case.

So, two weeks before trial, James Hartmann does not have trial exhibits in his possession, and does not know that the attorney who has trial exhibits in his possession (and who was the only testifying witness in the case) was the "second trial counsel" and added himself as a trial counsel obviously to pad up the bill of legal fees against my client (the only damages claimed in the Mokay trial were legal fees of Harlem& Jervis, the law firm that engaged in a conflicted representation and, by law, was not entitled to one penny of legal fees - if the law is to be applied, which is not likely in Judge Dowd's court).

The January 2015 ruling of the Appellate Division positioning the decedent Andrew Mokay (Estate) as a defendant in the Mokay action and the post-trial statement of plaintiff Daniel Mokay acknowledging that his father's misconduct was at the core of the Mokay proceedings, made the Mokay trial on damages a farce and waste of taxpayer money and of judicial resources.

The reason was that all damages claimed in the Mokay trial were attorney fees of attorneys representing, since February of 2007 (long before the Mokay case started), the decedent's Estate and who must, therefore, represent the interests of the decedent - yet the decedent's own son (and his "fiduciary" - Executor of his Estate) is accusing his own father of misconduct pertaining to the probate proceedings where Daniel Mokay is supposed to represent his deceased father's will - go figure.

By the way, I asked to consolidate (merge) the probate proceedings with the Mokay proceedings long time ago, because it is unconscionable that two testamentary instruments are litigated in two parallel court proceedings, and because conflicts of interest of Richard Harlem would have been much more visible had the proceedings been consolidated.

Judge Becker refused to consolidate claiming that consolidation will somehow "confuse" the issues - rather, it would have shown that Judge Becker was disqualified from presiding over the Mokay case as a witness, and a witness clearly committing misconduct behind the defendant Frederick J. Neroni's (my husband's) back.

Yet, when two actions were filed addressing the potential judgment in the Mokay case - an action for contribution from the decedent, since the Appellate Division indicated he was one of the tortfeasors, and a petition to the Surrogate's Court to stay probate proceedings, stop distribution from the Estate and make Richard Harlem return moneys so far obtained from the Estate, to make the Estate able to meet the possible judgment for contribution from Mr. Neroni - things started to unravel in a most interesting way.

Judge Mulvey suddenly decided to remove the probate proceedings from the Surrogate's Court into the Supreme Court - but neglected to notify me, my husband's attorney on the petition to the Surrogate's Court, of the order of removal.

The judge assigned to the removed case refused to abide by the order of removal and assignment and continued to act as if the case was never removed, to the point of advising clerks in two courts (Surrogate's and Supreme) that the order of removal was "erroneous".

To this day I did not receive a correction of that allegedly "erroneous" order, but the Delaware County Surrogate's Clerk did not transfer the case to the Delaware County Supreme Court, in defiance of the order of removal, the Delaware County Clerk refused to assign an index no. to the case preventing me from filing any pleadings (including an affidavit of service or motions) in the court where the case was removed to, and the Delaware County Supreme Court clerk undertook to advise me by letter her own opinion, obtained after her conversation with the judge assigned to HER court, that the order of assignment and removal - the only order in existence at this time - is, obviously in her own opinion, erroneous.

One does not need soap operas on TV, really - the Mokay saga in courts of the State of New York (and federal courts) is a real-time real-life soap opera.

Now, let's get to the pivotal issue.

In New York, by well settled law, an attorney who represents two parties of the same conflict in the same litigation, is not entitled to any attorney fees.

Not to one penny, not to one fraction of a penny.

Richard Harlem and his law firm undertook representation of the decedent Andrew Mokay in February of 2007, several months before Richard Harlem and his law firm started the Mokay litigation against my husband, where the Appellate Division, as of January 2015, acknoweldged that the decedent was the wrongdoer against his children - and Daniel Mokay confirmed that in his affidavit in the action for contribution as of early May, 2015, after the ex parte Mokay trial.

So, it is clear as day that no matter how many boxes of exhibits Richard Harlem tosses at courts to prove his efforts to represent both sides of the conflict, by law Richard Harlem and his law firms are entitled to exactly nothing in legal fees.

Since only Richard Harlem's legal fees were claimed as damages, that means exactly no damages.

And that means that the Mokay case had to be dismissed at commencement, and Richard Harlem sanctioned for frivolous conduct - something that had to be done in the summer of 2007, 8 years ago.


Judge Dowd knew about the decision of the Appellate Division making the trial unnecessary and requiring him to apply the law and to dismiss the case because no attorneys fees/damages could be awarded for representation of Richard Harlem.

Yet, doing so would upset Richard Harlem's political connections, such as Senator James Seward to whose Oneonta district office Richard Harlem is a landlord, Senator Neil Breslin (part of the law firm representing Richard Harlem), and that is only the tip of the iceberg of Richard Harlem's political connections that is available through public records.

And, dismissal of the Mokay case will result in an instant motion to restore Mr. Neroni's law license that will have to be granted as a matter of law - something that Judge Dowd is apparently bent to prevent, no matter what the law says.

So, Judge Dowd (who, personally or through his law clerk or secretary had a documented ex parte communication with Richard Harlem's office before trial) decided to disregard that appellate decision, and to disregard the trial witness subpoenas served upon him, his law clerk and his secretary, which subpoenas completely disqualified him from presiding over the case (because Richard Harlem had the audacity to charge his clients - and my husband - for ex parte communications with Judge Dowd, so Judge Dowd and his personnel WERE, indeed, proper witnesses in the trial on damages).

I already wrote in this blog that Judge Dowd, a subpoenaed witness in the case, pronounced the subpoena served upon him "a nullity", disregarded a medical diagnosis and medical leave of the defense trial counsel, dismissed the convened jury pool and proceeded to preside over an ex parte trial himself, admitted whatever exhibits Richard Harlem had, the two boxes of them, in bulk, without review of what is in those exhibits, at less than 19 seconds per multi-page exhibit, and is now hiding the exhibits from my review by (1) denying me access to exhibits already received by the court; and (2) refusing to issue a written order documenting his denial to me of access to the exhibits.

Previously, Judge Dowd's law clerk Claudette Newman, in an email to me, indicated that the judge has no authority to issue orders in response to a letter - a letter where I asked the court to order Richard Harlem to file the "certified records" with the court for my review (and that had to be done in the first place because the alleged exhibits were allegedly obtained from Delaware County Clerk and should have been filed with the court before trial and kept in court to prevent the taint to the certification).

So, Judge Dowd had no authority to review my letters and issue orders based on them, indicating to me that I had to make a motion.

Motions Judge Dowd simply did not accept from me, forcing me to file applications for Orders to Show Cause and then disregarding them.

So, while engaging in all of those shenanigans that Judge Dowd was certainly not authorized by law to engage into, Judge Dowd indicated to me through his law clerk that his authority is somehow restricted because he allegedly had no authority to issue orders based on letters directed to him.

Yet, the same Judge Dowd did, apparently, have authority to issue orders based on letter submissions by Richard Harlem (son of a judge) and by the New York State Attorney General's office - in the same case, multiple times!

Moreover, recently I attended a deposition in yet another case where Judge Dowd presided, where the wife of a powerful administrative judge, Ellen Coccoma, wife of Michael V Coccoma, Chief Administrative Judge of Upstate New York (a judge who holds authority to give or not to give to Judge Dowd post-retirement perks, and Dowd is close to retirement) failed to produce to an individual she claimed she subpoenaed through a court order, the court order that Ellen Coccoma has never served upon that individual (who could only be subpoenaed as a third party witness, and such subpoenaes require special protections and notice requirements).

The reason for this "failure to produce" was actually easy - the individual (who happened to be my husband) was demanding from Ellen Coccoma to produce the order along with the proof of service upon him, and the motion papers upon which the order was granted, as well as the notice given to him of such a motion being made.

The truth of the matter was that, had Ellen Coccoma produced the papers my husband was asking for, it would have been revealed that Judge Dowd made an order upon her LETTER - and an order with a caption indicating that Ellen Coccoma's client who is dead for 4 years (!) is still alive.

And, that no motion has been made by her - which would require her to actually pay a filing fee and file the motion with the Delaware County Clerk.

Instead, Ellen Coccoma simply sent a letter to Judge Dowd's chambers asking for an order - and Judge Dowd obliged.

But wait - isn't issuing an order based on a letter exactly what Claudette Newman told me that Judge Dowd is not authorized by law to do?  

So, let's put our ducks in a row once again.

The rule of law proclaimed by Judge Dowd states that Judge Dowd has no authority to issue orders based on letters.

Yet, this rule apparently has significant exceptions as follows:

• if the author of the letter is a son of a judge (like Richard Harlem);
• if the author of the letter is New York State Attorney General (counsel for Judge Dowd in pending litigation, and counsel for all judges in the State of New York in and out of courts);
• if the author of the letter is a spouse of a judge, especially of a judge who holds the key to lucrative post-retirement financial benefits (or lack thereof) to Judge Dowd;
• if the letter asks to do something against the Neronis;

then the rule does not apply.

Well done, Judge Dowd.

Long live the rule of law.

250 prosecutors disqualified in California by a single judicial decision because of misconduct - will there be any discipline of those prosecutors?

A judge in California has just disqualified 250 prosecutors off a major case because of a long history failure to turn over to the defense exculpating and impeachment evidence about informants who were illegally pumping criminal defendants for incriminating information, despite their attached right to counsel.

As a response, the prosecutors increased dramatically their motions to disqualify the judge.  Usually such motions are made when the judge is not impartial.  Ruling fairly as to prosecutorial misconduct that truly occurred does not constitute a ground for disqualification of a judge, and the judge should be commended for his courage, as his disqualification decision are ruffling a lot of feathers in the political elite of the state.

The reason for the disqualification, among other things, was that the Orange County Sheriff's Department, in total agreement with the DA's office, created and operated - for years and decades - a SECRET system of evidence against criminal defendants held in custody and pumped for information by jail snitches.

Such pumping for information by jail snitches at the behest of the government was the same as the government conducting interrogation.  Some of the evidence secretly held by the police for 25 years was exculpatory and was not turned over to the defense, with the full knowledge of the prosecutors.

Two years ago, it has been reported that crime labs are paid PER CONVICTION, meaning that the results of their work is clearly tied to whether the defendant is convicted or not.

Imagine what kind of perverse incentive that is and how many lives it may have disrupted through wrongful convictions.

My search on the Internet failed to discover that anybody was disciplined or held accountable for creating such a "pay-per-conviction" scheme of compensation for the crime labs, and one does not have to be a wiz to see a hand of a prosecutor (a future judge?) all over the place in this pay-per-conviction scheme.

Imagine how many lawyers (prosecutors) knew about the scheme and kept mum.

In April of 2015 it was reported that federal crime labs were presenting false evidence and testimony in criminal cases since 1999, generating an unknown number of false convictions and falsely induced plea bargains.

My question is - when independent civil rights and defense lawyers are suspended and disbarred left and right for simply criticizing a judge (for which they must have full 1st Amendment protection - especially when they do that to ensure their clients' right to a fair and impartial adjudication), what will be done in terms of discipline to prosecutors who perpetrated all of the above-reported fraud and misconduct?

Should we hold our collective breaths to figure that out or do we already know the answer - NOTHING?

And isn't this "nothing" the answer as to whether there is a reason to continue the fake protection of the attorney licensing system which protects only the market, with its high prices, from entry of affordable providers of legal services, not bound by financial contributions and financial ties in their loyalty to "the system"?

While we are waiting to see whether the 250 prosecutors will be disciplined or not, we can recall that California is the state that disbarred attorney Richard Fine for his fight against judicial corruption when he found out that state judges received additions to their salaries from counties that appeared in front of those same judges as parties.

The scandal was hushed by:

1.  disbarring and jailing in solitary confinement for 14 months (without charging him with a crime) the whistleblower against judicial corruption, prominent attorney Richard Fine, and by 
2. the State Legislature giving judges involved into the apparent corrupt scheme of justice for sale retrospective immunity from criminal prosecution, civil liability and disciplinary action  for any misconduct they may have committed.

With that in mind, I will be eagerly awaiting news as to how the now discovered misconduct of the 250 prosecutors will be handled by the State of California.

The new New York State one-size-fits-all bar exam - "rearranging the deck chairs on the Titanic" while discrediting the idea of regulation of the legal profession

This month, New York announced that, starting from July of 2016 it will switch to a multi-state bar exam, departing from its traditional two-part two-day exam checking both the federal and the New York State law.

The decision is paraded as a measure to allow more mobility to young attorneys who increasingly struggle to find employment on graduation.

Some professors explain that phenomenon by the fact that there is a decreased demand for legal services.

Being in that market, I can say that it is simply not true.

The market for legal services not only did not decrease, but is growing - it is the attorneys who try to justify their costly legal education by high hourly rates who are pricing themselves out of the market.

In fact, the same Chief Judge Lippman who changed the rules regarding the bar exam to allow New York attorneys to go work in Nebraska or Missouri, states who also embraced the multi-state bar exam, also repeatedly claims to the public that there is a crisis in the New York justice system where over 80% of litigants simply cannot afford an attorney.

If the market is deregulated and attorneys will have competition from non-attorneys, prices will instantly settle themselves, and those 80% of people who at this time have no access to affordable legal services, will get such access.

To claim that attorney licensing protects the 80% of the public who must go without the needed legal services because they cannot afford the high prices in a tightly regulated market, is to shed crocodile tears, and especially with the way attorneys are regulated:

• when the most powerful attorneys (prosecutors, judges, law clerks, the New York State Attorney General and his over 640 assistants, all attorneys working for the government, attorneys related to attorneys working for the government) are beyond the reach of discipline, it is not the consumers that attorney regulation is protecting;
• when attorneys targeted for discipline are attorneys blowing the whistle against judicial corruption and corruption of other public officials and politically connected attorneys, the public and consumers of legal services are not protected;
• when the super-majority on the attorney disciplinary committees are private market participants interested to preserve their high prices, restrict access to the market to preserve those high prices, and are interested to eliminate competition and especially competition from independent attorneys, and when representatives of the cross-section of the public are not allowed representation on those committees to the point of casing a decisive vote as to what they consider good or not good for their own protection, that is not protection of the public, it is a fake designed to preserve the status quo for the legal elite while pretending that the self-serving actions of that legal elite is somehow done for the protection of the public and not to enrich politically connected attorneys, the friends and family members;
• when the public is not allowed to be present at attorney disciplinary proceedings, even if the attorney subject to those proceedings asks for it repeatedly, that is not protection of the public.

The change in the New York State bar exam puts yet another dent into the claim that attorney licensing in New York (and elsewhere) is designed to protect consumers from incompetent and/or unethical attorneys.

Due to well reported difficulty to get employment on graduation, more and more potential students skip law school and pursue other graduate education.

While enrollments in law schools dwindle, law schools lower their standards for admission to keep financially afloat.

Thus, the caliber of students entering law schools and graduating from them, dwindles, too.

In order to allow that lower caliber of students to pass the New York State bar which can prove too rigorous for them, New York eliminates the toughest part of the exam - the New York State part - and allows students to take a one-size-fits-all exam that will be somehow valid in:

1. Alabama, 
2. Alaska, 
3. Arizona, 
4. Colorado, 
5. Idaho, 
6. Kansas, 
7. Minnesota, 
8. Missouri, 
9. Montana, 
10. Nebraska, 
11. New Hampshire, 
12. North Dakota, 
13. Utah, 
14. Washington, and 
15. Wyoming

I doubt that employment situation for young attorneys right out of law school is much different from New York, so to direct New York attorneys to get employment in Kansas while to direct Kansas attorneys to seek employment in New York sure aids attorney's mobility (which is good), but does not change problems in the market of legal services, prompting a reporter from the Fortune magazine to call the arrangement "rearranging the deck chairs on the Titanic".

It is even more alarming that Chief Judge of the state of New York Jonathan Lippman indicated that what New York does other states follow, and that there may be a "domino effect" amongst the states to change their bar exams to the "one size fits all" exams.

There is the good and the bad in that.

The good - that same acclaimed mobility, an attorney who sat for one bar exam (which is a gruelling experience enough, as I can attest, having passed the "old" New York State bar exam in the first sitting, while English is not my native language), does not have to be the slave of a certain state, chained to the State of New York (or Kansas, or Missouri, for that matter).

On the other hand, I do not know how complex is the law in other states, but in New York, passing a bar exam without being tested in knowledge of, specifically, New York Civil Practice Law and Rules (for civil litigation), New York Family Court Act (for proceedings in child support, paternity, custody and visitation, child abuse and neglect, domestic violence), New York Penal Law and Criminal Procedure Law is the same as not passing the bar exam at all.

The "short online multiple choice test" of New York State law is a completely inadequate measure to test competency in New York State law as a justification of attorney regulation in the State of New York.  First, identity of test takers in online tests is unverifiable, second, the New York State portion should be the largest and most vigorously tested, to prepare for practice in New York State courts, and not instead treated in a perfunctory measure, to report that the test takers took SOME tests in New York State law - online.

If online testing is so adequate - why not conduct the ENTIRE bar exam online?

Yet, the security measures in New York for bar testers are designed to ensure that one cannot take that test for another - when I was taking that test in 2008, I had an identifying bracelet around my wrist for two days of the exam, my ID with me at all times, and my computer (I was taking the test on the laptop) was blocked from the Internet completely.

So - if New York State now allows ONLINE "short tests" of the New York State law, while not changing security measures for the rest of the bar exam, it only shows that New York DOES NOT CARE who takes the New York State portion of the bar exam - as long as it is passed.

Yet, it will be the CPLR and the Family Court Act and the Penal Law and the Criminal Procedure Law, and Real Property Actions and Proceedings Law and Surrogate's Court Procedure Act, all state statutes, that will control court proceedings where a young attorney will engage.

Passing online "short" multiple choice exam on New York state law will not prepare bar exam takers for practice in New York State courts.

Moreover, since it will be an online test, and a "short" multiple choice exam, preparation for that portion of the bar exam will not be considered important - with resulting lack of knowledge by the test takers.

Passing a one-size-fits-all exam in its simplified format, thus, will not provide to the public a proper assurance that attorneys who passed the test are prepared to practice law specifically in the courts of the State of New York, because in the courts of the State of New York, an attorney needs to know New York law, and not simply be able to be trained for a brain-dump of a one-size-fits-all bar exam.

 Which means to me that shifting to the one-size-fits-all exam in states with vast differences in their statutes and procedures, both in civil and criminal litigation, at the trial and appellate levels, discredits the whole idea of attorney licensing, because neither graduation from the "ABA-certified law school", nor passing of the "one-size-fits-all" bar exam provide assurance to the public that a licensed attorney is any more competent than an unlicensed individual who has diligently read the applicable law and is ready, willing and able to represent his neighbor or friend in court.

In fact, there is more assurance of competence of the neighbor who has actually studied the applicable state law than an attorney who has a pulse and a license based on passing a simplified one-size-fits-all bar exam that did not test the attorney in the knowledge of state law, but the license provides to the public a false assurance of competence.

To continue with attorney licensing under such circumstances is to continue to deceive the public with false assurances of competence where no competence can be found.

==

That said, what remains is a huge issue of equal protection concerning those attorneys who had the misfortune of having passed the more rigorous "old" bar exam, with the state component, but that is not recognized by other states.

Will the State of New York try to bridge that inequality gap by entering agreements with other states that attorneys who received their licenses before the new bar exam is going to be introduced in July of 2016, will not be penalized for taking the bar exam "too early" to be automatically recognized by other states?

Does it make any sense for this year's law school graduates to take July 2015 or February 2016 bar exam since it requires more efforts, but will provide less rights to the successful takers?

Does it make sense to wait until July 2016 and work somewhere in a non-attorney position for a year, so that the gruelling efforts in bar preparation will not be wasted?

Questions, questions, questions.

All of those questions can be resolved in one go if this Gordian knot of the market of legal services regulated to the brink of perishing, is simply cut and the market is deregulated.

Then, prices will even out, competence will become a point of proof for each attorney (or non-attorney) and a point of responsible background research by the consumers before they come to a certain provider of legal services before hiring him or her.

Then, competence will survive and incompetence will perish - as they should in a market economy.

If the market of legal services is deregulated, courts will lose the leverage of trying to eliminate capable providers of legal services for the mere reason that those providers blew a whistle on judicial misconduct, and those providers will be available to the public, at a time when governmental misconduct increasingly becomes a problem that needs more and more attorneys to deal with it - and not be afraid to deal with it.

It appears that deregulation of the legal profession is around the corner, and no matter how states are trying to prevent that event (lobbied, no doubt, by the legal elite that stands to lose the most from such deregulation), the Titanic is sinking.

Rearranging decks chairs will not help.

What is the difference between Sirkin and Hedges? It is a difference between pissing off Tormey and pleasing Tormey in going after Tormey's critics

I wrote in this blog about the disciplinary proceeding in the New York State Commission for judicial conduct against former judge Bryan Hedges, brought against him AFTER he resigned from the bench.

I also wrote in this blog about a retired judge Stephen Sirkin, a referee in my disciplinary case who refused to conduct a court-ordered evidentiary hearing, instead illegally decided a motion in my case (of course, against me), even though the NY State Constitution, Article VI paragraph 4 subsection (b) clearly allows decisions in appellate courts to be made ONLY by a concurrence of three appellate justices, with a quorum of four.

Obviously, Sirkin is not and has never been an appellate judge, cannot single-handedly replace a panel of four appellate justices required for a quorum, and cannot replace a concurrence of three appellate justices in making a decision.

Yet, the same NYS Commission for Judicial Conduct that disciplined Hedges, refused to discipline Sirkin, because, as it was explained to me, Sirkin is no longer a judge, he has retired.

It did not prevent the Commission to go after retired judge Hedges though, on a tip from William Fitzpatrick, a law school roommate and buddy of Judge Tormey, the Chief Administrative Judge of the 5th Judicial District.

William Fitzpatrick appeared to have a personal grudge against Hedges of monetary nature.  According to the papers submitted to the NYS Commission for Judicial Conduct, William Fitzpatrick was likely upset that Hedges did not give in to the blackmail by the alleged victim who wanted to get some money from Hedges and split the money with the prosecutor (statements as to that arrangement were submitted as evidence to the NYS Commission for Judicial Conduct and is /or at least was, at the time I retrieved it/ publicly available online).

The bottom line is that the difference between non-prosecution of Sirkin and prosecution of Hedges was that Hedges pissed off the Chief Administrative Judge for the 5th Judicial District James Tormey by indicating to a court employee that Tormey was tormenting for refusal to engage in political espionage against a judge and Democratic judicial candidate that she was the target of Tormey's efforts "to get" her.

Of course, a zillion reasons may be brought up as to why Sirkin was not prosecuted and Hedges was.

And, of course, NYS Commission of Judicial Conduct has absolute "discretion" to bring or not to bring disciplinary proceedings against judges - and complainants, according to decisions by courts (self-serving decisions 

So, when Sirkin bent over backwards, to the point of disobeying a clear court order, refused to hold a court-ordered evidentiary hearing for me and issued an unconstitutional "decision" against me - that was pleasing Tormey who was pissed off by my criticism of him in pleadings and bringing out in pleadings and in this blog Tormey's ongoing misconduct that was the subject of at least two lawsuits, one that has cost NY state taxpayers $600,000.00 to settle, not to count legal fees (Tormey got free representation from NY State for 4.5 years defending against charges of misconduct that had nothing to do with his judicial duties).

When Hedges disclosed to the plaintiff against Tormey that she was the target of Tormey's ire, which helped the plaintiff's lawsuit - that pissed of Tormey.

And, by the way, two employees on the disciplinary committee currently prosecuting me are direct subordinates of Tormey who can expect his full ire if they would dare to through out the frivolous petition transferred to them from the 3rd Department.

So, to sum it up, the difference between retired judges Sirkin and Hedges is this:

Sirkin - pleased Tormey by his misconduct against a critic of Tormey - is not prosecuted for misconduct because he is a retired judge, and the NYS Commission for Judicial Conduct does not have (allegedly) jurisdiction over him.  Nobody else will discipline Sirkin because his misconduct was on behalf of and at the request of the disciplinary prosecutors, representing a committee with two employees of Tormey.

Hedges - upset Tormey by giving valuable information for the lawsuit of a court employee against Tormey.

And this "distinction" is the sum and substance of the integrity of the judicial disciplinary system in New York.

What is judicial misconduct in Philadelphia is business as usual in New York

According to the media reports, disciplinary filings were just made against two judges in Philadelphia who fixed a case for the son of a judge.

Here, sons of judges rock to the point that no law applies to whatever they are doing.

I wrote on this blog about shenanigans of son of a judge Richard Harlem, about misconduct of a son of a judge Michael Getman.

Son of a judge Richard Harlem, landlord to NY Senator James Seward and client to the law firm employing NY Senator Neil Breslin, does not have to know the law or know how to present law, facts, evidence or even to be truthful in his submissions.  He will still win and nobody will dare to punish him.

Richard Harlem and is (now late) father Robert Harlem were caught by the New York State Attorney General in a scheme to defraud the Surrogate's Court and conceal Robert Harlem's role in practicing law while being a sitting Supreme Court justice, involving his son (an attorney), his court secretary and his court law clerk in signing the will and codicils as witnesses, and where Robert Harlem bequeathed to himself (another ethical no-no) hundreds of thousands of dollars worth of assets, plus made himself a paid third co-executor and made the trust where he was a salaried trustee, recipient of the residual estate counting in the millions of dollars.

Son of a judge Michael Getman was never disciplined for his misconduct pertaining to a charity where the New York State Attorney General got to the point of filing a case against him and his father - and both escaped with a slap on the wrist and no criminal, civil or disciplinary liability.

No judges so far were disciplined for fixing the case for Richard and Robert Harlems, a case (read my blog post the Mokay saga) which, had the law been applied, would have been dismissed 8 years ago with sanctions against attorneys who brought it.

Once again, what is a disciplinary violation in PA, is business as usual in NY.

In PA, judges who fix cases for sons of judges through back room dealings, are in hot water.

In NY, three (!) judges were caught in ex parte communications with Richard Harlem and his hired attorneys, ALL THREE retaliated by sanctions and imposition of attorney fees against attorney and her husband who confronted them about the ex parte communications - and the Judicial Conduct Commission has not filed disciplinary charges against ANY of these three judges:

• Carl F. Becker;
• Ferris Lebous;
• Kevin Dowd

That is, as much as I know about ex parte communications because they were part of billing records provided to me by Richard Harlem and his attorney David Cabaniss of Hiscock & Barclay.

One can only guess how much ex parte communication could have been going on without those ex partes reflected in the billing.

Yet, the trend appears to emerge that judges do not have such an easy way out anymore when they commit misconduct - not in small part because of public outcry and growing public awareness of the issue and pervasiveness of judicial misconduct in the American justice system on the state and federal levels.

So - will we soon see disciplinary charges filed against Carl F. Becker?  I doubt it because he is resigning as of July 31, 2015, even though anything is possible, because the New York State Judicial Conduct Commission did go recently after a former judge, Bryan Hedges, AFTER his resignation from the bench and did discipline him, precluding him from holding any judicial office ever again.

Against Ferris Lebous and Kevin Dowd?  Future will show.

Richard Harlem, Daniel Mokay and their conflicting theories as to what the Mokay case is about

Here is what attorney Richard Harlem told judge Elizabeth Garry on October 5, 2007 as to the essence of the Mokay litigation (see my blog posts "the Mokay saga"  and my posts from April 2015 to date:

Apparently, as of October 5, 2007, Richard Harlem indicated that he did not want the deeds in question to be put into the Estate of Andrew Mokay (his client since February of 2007) because the Mokay lawsuit had nothing to do with the Estate and had everything to do with the Mokay children enforcing their father's contract to make a will made in the father's divorce action in the Supreme Court. 

Of course, when the deeds were placed into the Estate, Richard Harlem appealed that decision on behalf of the children, making the Estate (Richard Harlem's client) an adverse party, then joined the Estate as a party (and his own client in the Mokay action) through a motion, while his appeal against the Estate was still pending.

When I sought a Bill of Particulars seeking to verify the standing of the Estate and to have the Mokay plaintiffs answer under oath, why the Estate was even joined as a Plaintiff in the action, Richard Harlem asked judge Becker to deny me the motion to compel production of the Bill of Particulars, and Judge Becker obliged.

At the February 29, 2012 hearing Judge Carl F.Becker (a Surrogate judge of 10 years by that time) claimed that when an Estate is added to the action, it is not the same as the decedent added to the action:

Then, at a pre-trial conference, I believe in 2013 in the Mokay action, Becker claimed that the Estate was "in privity" with the Mokay children.

Apparently, that should have meant, based on Richard Harlem's argument to Judge Garry (see snippet above) that the decedent and his Estate are suing in the Mokay action for breach of contract to make a will that was broken by the decedent.  The decedent or his Estate were definitely not and could not be, beneficiaries of the decedent's contract to make a will (rejected by Judge Becker as a Surrogate in 2007 when Judge Becker chose the "wrong" will of the decedent over the contract to make a will when both testamentary instruments were offered to Judge Becker for probate by Richard Harlem and Daniel Mokay as the decedent's Executor).

One more distinction is that - in Becker's understanding, when the Estate in the Mokay action sued, it was not the same as when the decedent sued.

Yet, when my husband sued the decedent, he had to sue his Estate in the Neroni v Harlem's action, and Judge Becker was presiding over that action, and still argued that when the Estate is suing (or is sued) for actions of the decedent, it is not the same as if the decedent is suing or is sued.

I am not surprised as to incompetence and lack of integrity of Judge Becker, it is legendary, and already caused Judge Becker (I believe) into an early resignation/retirement, 3.5 years before his actual mandatory retirement based on age.

What I do not accept as the rule of law though (not surprised, as I know that corruption in the judiciary system in this state and this country is also legendary) is that the entire judicial system, from clerks to appellate courts, play the fool to Judge Becker's incompetence and uphold anything Judge Becker says no matter how incompetent - only to rule against my husband and myself.

The sad irony is that, after the hearing of February 29, 2012, when Judge Becker stated:

two events occurred - Judge Becker recused in August of 2012, without rendering a decision that he reserved 6 months (!) prior while he had only 60 days, by law, to render that decision.

Apparently, the requirements of the law do not concern Judge Becker.

Moreover, in September of 2012 Defendant Robert Harlem (retired judge, father and law partner of Richard Harlem) died and - guess what? - Richard Harlem substituted his father's Estate as a defendant in the action, where suing the Estate was clearly the same as suing the decedent.

But the real bounder happened in May of 2015, when Richard Harlem's client Daniel Mokay, who by that time ditched Richard Harlem for another attorney in an action against the decedent/Estate for contribution or indemnification, based on the order of the Appellate Court designating the decedent as participant in the alleged fraud against the Mokay children, stated the following under oath:


So, in May of 2015, after the Mokay trial in April of 2015, Daniel Mokay suddenly claims that his father (and the decedent of the Estate whose will Daniel Mokay must carry out as his fiduciary and representative) committed wrongdoing and caused harm now to the beneficiaries OF THE ESTATE, because "he took from the beneficiaries property which he was obliged to give them".

Now, wait a minute.

On October 5, 2007 Daniel Mokay's attorney Richard Harlem argued to the court, Judge Garry, this:




In June of 2014, when testifying under oath, Richard Harlem reconfirmed that he is litigating on behalf of Mokay chidren as third party beneficiaries (the Estate of the decedent was certainly not a third party beneficiary under the decedent's contract to make a will that decedent has allegedly broken by writing a revocable will and having two deeds drafted - yet the Estate EXISTS BECAUSE Daniel Mokay and the Mokay children PROBATED THAT WRONG REVOCABLE WILL).

Richard Harlem obviously does not concern himself with such details in litigation.  After all, as a son of a judge, even a retired and late judge, he has had his privileges, such as that courts will give him anything he wants not matter how frivolous.

But here is what Richard Harlem said on June 23, 2014  on record, in front of Judge Kevin Dowd under oath as to the theory of the Mokay litigation:

So, in 2014, same as in 2007, the theory of the Mokay case was that the five children of the decedent Andrew Mokay were contract beneficiaries under the decedent's contract to make a will.

Of course, that theory did not explain presence of the Estate as a plaintiff in the action, but Judge Becker precluded me from seeking a Bill of Particulars verifying that issue, the Appellate Division affirmed without analysis of the issue, and Judge Dowd who got himself assigned to the Mokay case while recusing from a related Neroni v Harlem case, could not care less.

I must also indicate that Daniel Mokay was sort of the "main plaintiff" in the Mokay action.  At least, in answer to my question as to why there is no correspondence and billing statements sent to anybody other than Daniel Mokay, answers the following:

So, after the trial on the theory that Daniel Mokay and his five siblings were suing as third party beneficiaries under their father's contract to make a will, Daniel Mokay suddenly comes up with another theory, which he discloses also under oath - that the Mokay litigation was due to wrongdoing of his father, the decedent (whose Estate, remember, was added for an unknown reason as a plaintiff in the Mokay litigation while Daniel Mokay was appealing placement of the deed in the Estate, and while the Estate/decedent and Daniel Mokay were represented by the same attorney Richard Harlem, his father Robert Harlem and their law firm).

In May of 2015 the theory now is that Daniel Mokay's father for whom Daniel Mokay acts as a fiduciary/Executor, defrauded beneficiaries OF THE ESTATE, not third party beneficiaries under the contract to make a will.



So, what are we going to do now, after Judge Dowd makes a decision based on the old theory of litigation?  Back to court?  Maybe, just maybe, it will dawn upon the presiding judge to actually look at the applicable law and facts that are in the record - and toss the Mokay litigation, with an award of costs and attorney fees throughout it in favor of Mr. Neroni?

Who knows, maybe the rule of law is not yet a complete fiction in New York?