The Report of the NYS Statewide Commission on Attorney Discipline: No Luxury of Time, Round 2

I have posted here today an analysis of the claim of the Cozier Commission (for shortness' sake) that time was a luxury and it did not have time to implement recommendations that it was making.

Let's review whether that was true.

Here are some of the recommendations of the Commission, with comments:

Note that the Commission carefully avoids the sticky issue that what constitutes the PRACTICE OF LAW that is regulated by attorney licensing, IS NOT DEFINED BY NEW YORK LAW.  When the subject of regulation is not defined (and that continues to be the subject of Neroni v Zayas lawsuit, appeal pending in the 2nd Circuit), how can one define "professional misconduct" in practicing nobody-knows-what?

A noble task, but representatives of 4 departments were members of the Commission, what prevented them, over 6 months time, to come to a consensus on rules that they themselves can issue without asking permission of Chief Judge Lippman or anybody else and without public hearings or reports?

And, seems hypocritical to me to claim that there is no such system at this time, but to continue to enforce it and not stay it until such uniform rules are in place

There are already in place court procedures for conservatorships.  No additional proceedings are necessary, so here the Commission is using its "time which is luxury" on something that already exists.

Not to mention the awkward working/typo, this is a good point, because at this time the only way to accept resignation is through admission of wrongdoing, and many people would not like to do that, continuing litigation.  Yet, once again, representatives of 4 Appellate Divisions were already members of the Commission and could just DO that, pursuant to their rule-making power, at any time, without any reports and recommendations.

This is rich, coming from this particular Commission, with this particular membership.

There was testimony before the Commission that complaints of legal consumers are rejected without explanation and complainants are not given any explanation (Ms. Alves' testimony in the New York City hearing):

But, look at the testimony of Timothy O'Sullivan, the chief attorney of the Lawyers' Fund for Client Protection who was called as the very first witness at the very first hearing, and was, thus, considered by the Commission to be the most important witness at the hearings.

Timothy O'Sullivan admits that the fund's goal is to protect legal consumers specifically from DISHONEST behavior of attorneys.

That restricts Timothy O'Sullivan's authority to receiving sanctions specifically for DISHONEST behavior of attorneys.

Yet, in my practice, Timothy O'Sullivan runs disciplinary committee as a cheap collection agency for his trust fund to shake out civil rights attorneys of sanctions imposed for making motions to recuse judges raising constitutional issues of public concern.

Those retaliatory sanctions, imposed for motions to recuse that clients wanted, needed and asked for, have nothing to do with DISHONEST behavior of attorneys toward clients.

Yet, Timothy O'Sullivan continues to relentlessly work as a shakeout and continues to use the disciplinary committees as collection agencies, even though collection on judgments is NOT their function, and Timothy O'Sullivan acknowledges that he simultaneously refers unpaid sanctions to the disciplinary committee AND to the New York State Attorney General "for collection", but collection through harassment by the disciplinary committee is obviously faster and cheaper.

I already sued Timothy O'Sullivan and his fund for exactly that in Neroni v Peebles, but the lawsuit was dismissed because of various court-created restrictions to jurisdiction, without reaching the merits of the case.

Look how Timothy O'Sullivan proudly admits to using disciplinary committees as cheap collection agencies:

Wait, didn't Ms. Alves testify that 98% of complaints get dismissed without an explanation to the complainants?

So, there are complainants and complainants?

Some whose complaints are dismissed without an explanation, and some, like Timothy O'Sullivan, whose shakeout efforts receive "invaluable assistance and unfailing support" that they "receive daily from HIS COLLEAGUES in the attorney disciplinary system".

Wait, wait, wait.

So, Timothy O'Sullivan, unbeknownst to legal consumers or attorneys, is now deems himself a COLLEAGUE of the disciplinary committee, a PART of it?

And, as PART of it, has access to information that is not shown to other complainants?

Interesting!

Timothy O'Sullivan kept going on.  He states, with iron fervor, that those attorneys who steal must be disbarred.

Who would argue?

Yet, Cornelia Cahill, wife of Chief Judge of New York State Court of Claim Richard Sise, was not disbarred by Timothy O'Sullivan's colleagues, when she, and 100 more attorneys, were caught stealing from state benefits and pension system, pretending they are employees of the school system when they were not, doing it for YEARS AND DECADES, and Timothy O'Sullivan does not seem to raise any riots.

Cornelia Cahill, instead of being disbarred, was accepted AS A LAW PARTNER in the law firm of one of members of the disciplinary committees who was charged with a duty to investigate and prosecute her!  That's one way to give a judge a favor and promote one's business, isn't it - to save his wife from disbarment?

Steven Baum whose law firm was behind the "robosigning" scandal in judicial foreclosures, against whom the feds were making probes as to his "faulty filings" in foreclosure cases, who, thus, was responsible for helping steal thousands of homes from New Yorkers, was not disbarred or publicly disciplined, and I did not see any statements by Timothy O'Sullivan concerned about that state of events, of Steven Baum's dishonesty as an attorney.

The list goes on and on.

Timothy O'Sullivan doesn't stir.

Timothy O'Sullivan boldly claims that attorneys who steal must be referred for prosecution to criminal prosecutors, as part of a uniform policy.  

Great!  Cornelia Cahill and Steven Baum, too?  Or just solo and small firm independent criminal defense and civil rights attorneys?

One of the witnesses who testified before the Commission in New York City, was not at all confident that any new rules or policies will be followed though:

No mentioning of this "elephant in the room" in Timothy O'Sullivan's speech and none in the Commission's report.

You know what Timothy O'Sullivan REALLY concerned about? 

To make "dispositions" in attorney disciplinary proceedings FASTER.  That means, to afford an attorney even less time than he/she currently has to answer the complaint - now it is even less than allowed for a civil lawsuit, which is already an equal protection problem.

And what speedy dispositions Timothy O'Sullivan may be seeking from courts and attorney disciplinary committees?  Of course, the GUILTY dispositions, because he will not get any money out of not guilty dispositions.

So, Timothy O'Sullivan is one complainant who attempts to influence speed - and fairness - of attorney disciplinary proceedings to do his shakeout job faster.  Great for uniformity, great for efficiency, not great for fairness.

So, to sum up on the issue of dismissing complaints, the following rule emerges:

• when a lay consumer files a complaint, it is usually dismissed without an explanation;
• if a judge imposes a sanction, often arbitrary, and often because the judge is pissed off because the judge's own misconduct is challenged on a motion to recuse, that complaint, made by Timothy O'Sullivan, is given a priority and is ALWAYS investigated and prosecuted - even when sanctions are imposed NOT for dishonest behavior of an attorney, which is the ONLY basis of sanctions for which Timothy O'Sullivan can collect, because the goals for which his Fund was created was to protect legal consumes from DISHONEST behavior of attorneys

Maintaining any kind of appearances of any kind of governmental agency in public eye ("public confidence in the integrity of the system"), or PR, cannot be enforced through sanctions on attorneys, and is NOT a legitimate governmental interest.

Nor can it be maintained by the system where Cornelia Cahill, Steven Baum and similarly influential attorneys who were involved in egregious misconduct continue to practice while civil rights attorneys get disbarred for raising constitutional issues in court on behalf of clients addressing judicial misconduct.

But, let's go further as to the Commission's Report.

Here are further recommendations by the Commission.

Once again the Commission delves where laws are already established.

Same as the committees have discretion to prosecute or not prosecute, district attorneys have discretion to prosecute or not prosecute crimes, and may not be influenced by disciplinary committees.  And, the Committee does not have a "role" at the beginning stages of criminal adjudication.  Moreover, what happened with presumption of innocence?  

Such an accusatory tone of the Commission and the committees where a person is only ACCUSED of committing a crime, which in any court may not be considered as any kind of EVIDENCE against that person, already says volumes about "fairness" afforded to attorneys by such "knowledgeable" and "unbiased" committees.

This rule is already part of Judiciary Law 90, and the only collateral estoppel that the statute permits (not that courts or committees are following the statutory restrictions) are on two occasions:

• conviction for a felony;
• contempt of court order of child support

So, disciplinary committees are not really concerned about fairness, they are concerned about prosecuting attorneys faster, so that Timothy O'Sullivan can do his shakeout job faster, and so that committee members can get rid of competition faster, in violation of federal antitrust laws.  But, that has nothing to do with fairness.

The Commission does not mention that the Committees should be prohibited to bring up civil rights litigation AGAINST THEMSELVES for violating attorneys' constitutional rights during disbarment proceedings, as a preclusion for reinstatement, even though they regularly claim that trying to get a remedy from federal court because of their own misconduct or, God forbid, testifying before a public agency about corruption in the government, characterizes an attorney as unfit for reinstatement.

Yes, yes, yes!  That's exactly what I said in Neroni v Zayas lawsuit, Ms. Duffy, Ms. Peters, the Third Department Court! Are you withdrawing your opposition in that lawsuit on those same issues?  I guess, not.  So, how come you maintain those diametrically opposite positions?  Isn't that frivolous?

And - can't you, members of Commission who are also members of the 4 Appellate Division just DO it without "reports or recommendations", through promulgating rules that you otherwise promulgate without asking anyone?

Yes, yes, yes!  That's what I said in Neroni v Zayas, but didn't you ask the court to dismiss that lawsuit because the complainant does not have a "justiciable interest" in the complaint?  And obtained a dismissal? And are opposing NOW appeal of that dismissal?  How come, once again, such irreconcilable and frivolous positions in the Commission and in court?

And - can't you, members of Commission who are also members of the 4 Appellate Division just DO it without "reports or recommendations", through promulgating rules that you otherwise promulgate without asking anyone?

Yes, yes, yes!  It is the same argument you rejected and continue to reject in Neroni v Zayas! and that you can correct yourself, without reports or recommendations, and without wasting public time or money.

Yes, yes, yes!  How about withdrawing that "no justiciable interest" defense in Neroni v Zayas?  And how about just MAKING such a rule without reports or recommendations?

Now, this one is extremely interesting.  While the U.S. Supreme Court encouraged, by its decision in North Carolina Board of Dental Examiners v. FTC, decided in February 25, 2015, to CREATE panels without super-majorities of attorneys, and instead with supermajorities of legal consumers, our brave Commission wants to do the opposite - to extinguish the only sparkle of radical thought in the First Department that actually allows hearing panels, and not decisions over attorneys by attorneys.

Yes, yes, yes!  Now, will you guys withdraw your opposition to the Mr. Neroni's attempts to get access to his own disciplinary file, to the records showing voting for investigation and prosecution in his case?  Because you think such decisions should not be made unilaterally?

This is a further assault on the revolutionary First Department, instigator of ABA reports, holder of hearing panels in disciplinary proceedings. 

What about out-of-state attorneys?  Who do not have a registered office address and who reside outside of the State?  Recently, a federal court ruled that requiring a physical office from an out-of-state attorney is unconstitutional.  The Commission does not care what federal courts say about unconstitutionality of their proceedings?

This one contradicts the previous one, but oh well.

Mamma mia, this one is EXACTLY to answer the challenge in Neroni v Zayas and directly contrary to testimony and requests of lay witnesses at public hearings.  

While we were arguing in Neroni v Zayas that disciplinary committees MUST keep records of discipline for ALL attorneys, with proper indexing and archiving, for further review as to selective enforcement issues and verification of whether certain discipline was, in fact, imposed, committees are lobbying elimination of ANY records for their private discipline.

This rule was adopted, very likely, because of public pressure to disclose dismissals of complaints and analyze possible selective enforcement.

You cannot analyze oral discipline, or lack thereof, can you.

On the other hand, committees can always argue against attorneys they want to disbar, as a point of "aggravating circumstance" that these attorneys were previously disciplined through an "oral admonishment".  How can you prove or disprove that there was an oral admonishment?  If it will be proven on affidavits by members or attorneys of the committees prepared for litigation, those affidavits will be freely given, perjured and all.  No problem.  I am seeing it all the time.

So, will we next have oral money judgments?

Oral criminal convictions?

And all of those oral things made upon oral submissions by attorneys and oral acceptance by courts and agencies?

Will eliminate the necessity to create any records completely.

A lovely idea, I wonder who was the author.

When these guys are engaged in a lobbying frenzy, they seem to switch off their brains and do not even think how they actually look.

So, the Commission, claiming that "time is a luxury", 

• proposed to invent laws that already exist:
• for incompetents and
• for criminal prosecutions of theft;
• proposed rules that did not have to be proposed because
• courts already have authority of rule-making and can do it without reports or recommendations, and because
• the same courts and committees are opposing the same issues at the very same time in multiple lawsuits in federal court - appears frivolous to me
• engaged in relentless efforts to further defy antitrust law and to allow further selective enforcement of attorney discipline:
• by trying to quash the "revolutionary" undertakings in the First Department, and
• by trying to introduce "oral" discipline against attorneys, thus avoiding public scrutiny of selective enforcement and further selective enforcement by being able to claim aggravating circumstances against targeted attorneys backed up by perjured affidavits only, no records of admonishment proceedings

In other words, they WASTED OUR TIME AND MONEY.

What can you expect from crooks who are responsible for the current mess to begin with?  That they will suddenly get honest and correct it?

On this harmonious note let me finish today's analysis of the Report.  I will continue, there are other outstanding issues remaining.

Stay tuned.

The Report of New York State Statewide Commission for Attorney Discipline: No Luxury of Time. Why?

At the beginning of this year I ran a blog post called "TL;DR" ("Too Long; Did not Read") describing how courts usually skip over issues in review of cases claiming they are too busy to do their jobs thoroughly.

I recently encountered an anonymous critic on this blog who called himself "Coyote Waits", acted from the bushes, without revealing his identity, in insulting and patronizing manner, made conclusory allegations of incompetence to me, displayed an extremely sensitive male ego that could not withstand being called a sexist bully while he was acting as a sexist bully and who made his conclusions based on "review of my litigation history" - an instant review.

Since review of only one civil rights case may often require several days, and my anonymous critic (a male attorney, as he finally confessed) made his conclusions after allegedly reviewing ALL of my multi-year multi-court multi-case litigation history, I could make conclusions that either he is simply lying, or he is applying the TL;DR method, or both.

Unfortunately, I found the same TL;DR argument in the Report of the NYS Statewide Commission for Attorney Discipline.

Yet, since high-ranking attorneys and judges who commit misconduct usually camouflage that misconduct in top-lofty language and are professionals of such camouflage, they expressed it this way: that the Commission allegedly "did not have the luxury of time" to do its job thoroughly.

It intrigued me, because creation of the Commission was announced in February of 2015, Commission formed in March of 2015, as of June 2015, according to a judicial accountability advocate Elena Sassower, the Commission had no website, no telephone assigned and, likely, did nothing, there were no apparent rules restricting the Commission in the number of hearings it can hold or the number of witnesses it can hear, it was the Commission's decision to hear 8 to 16 witnesses a day instead of more than that, and fuller than 10 minutes a witness.

But, let's go to the report, and a very interesting situation with the so-called "luxury of time" emerges.

Here is what the Commission said in its Report and Recommendations of September 24, 2015:

Well, well, well.

As of February 25, 2015 the U.S. Supreme Court has ruled that the COMPOSITION of the disciplinary committees is a big problem, in fact, a problem so big that operating disciplinary committees the way it is done now - by super-majorities of licensed professionals who are regulating other licensed professionals - is running afoul federal antitrust laws, which are, by the way, both civil and criminal.

So, the main concern of courts and committees since February 25, 2015 should have been, first of all, changing THAT problem, so that the committees are not run as criminal cartels.

That issue was not even touched upon by the Commission.

Instead, the Commission was discussing how to mend what is already broken to the point of criminality, as the U.S. Supreme Court said back in February 25, 2015.

That little omission is just one of the untruths about the "luxury of time".

The Commission made a point of analyzing the "history" of discussions - among attorneys and legal scholars only - of problems with uniformity, efficiency and fairness in New York disciplinary proceedings.

The Commission touched NONE of the multiple lawsuits, many of them successful, where various aspects of attorney disciplinary system in New York was found by various courts simply unconstitutional.

Yet, even when Commission analyzed reports by attorneys' associations, it appeared that the problem was not the lack of the "luxury of time", but the lack of desire to change the status quo in attorneys-regulating-attorneys, for their own benefit, obviously.

Look at the dates when issues that the Commission is currently reviewing were raised - and, once again, we are not even talking about the multiple pleadings where such issues were raised, but which the Chair of the Commission, with a stern and hostile face, refused to admit, refused to review, and fled as soon as the witness who was offering those pleadings, Elena Sassower, was shut up by himself and by the big armed court officer looming over her during the "public" hearing in New York City.

I myself know of four lawsuits that only I or my husband brought, where issues that the Commission was discussing, were raised:

• Neroni v Coccoma (my husband Pro Se), filed in 2013;
• Neroni v Peebles (myself, Pro Se), filed in 2014
• Neroni v Zayas (me as an attorney on behalf of my husband as a client), filed in 2013;
• Peters v Neroni (my removed and then remanded disciplinary case, 2013)

Those same issues appeared in the Report, without attribution to Mr. Neroni or myself (that is called "plagiarism") by members of the Commission who had to read those lawsuits because they were addressed to them and served upon them.

I don't mind so much this little theft of ideas, as I mind dishonesty in the claims that time was a "luxury" and there was no time to thoroughly decide issues raised before the Commission and individual members of the Commission.

Here are the dates from the "history" of attorney discipline in New York, as provided in the Report of the Commission:

Ok, so

• in 1970 the American Bar Association issued a report, "the Clark Report" that was 45 YEARS AGO, raising the issues of lack of "uniformity in disciplinary enforcement throughout the state"

In 1972 (2 years after the "Clark report") New York State Committee on Disciplinary Enforcement (predecessor of this Commission), a "Christ Committee", "submitted a comprehensive report to the Judicial Conference calling for standardized and uniform procedural rules and regulations etc....", the "Christ Report".

Let us note that the "Christ Report" was issued only in response to the ABA report and not in response to any lawsuits filed by attorneys raising issues of lack of uniformity of discipline, and certainly not on New York State's own initiative.  An outside authority must prod New York State government into action to start thinking of how to improve the system - and even then...

Then in 1981, 11 years after the "Clark report" and 9 years after the "Christ Report", Appellate Division 1st Department invited the ABA's Standing Committee on Professional Discipline to conduct a comparative review of all four disciplinary systems in the state.

In 1982, ABA issued two reports in which it recommended total dismantling of the current system, to be replaced by a statewide court of discipline, a statewide ADMINISTRATIVE BODY, hearing committees and staff.

That was, ladies and gentlemen, 33 years ago!!!

Naturally, in 1983 New York State Bar Association rejected those recommendations.

In 1985 New York State Bar Association issued its own report.

The Commission says nothing about the contents of the 1985 NYSBA report other than that it was inspired by the 1970 Clark Report which it ignored for 15 years before being "inspired", as it also rejected the two subsequent ABA reports.

So, beside scholarly studies also mentioned in the Commission's report, we have the following chronology of reports addressing issues of uniformity and fairness of attorney discipline in New York:

1. 1970 - ABA "Clark Report"
2. 1972 - NYS Judicial Conference "Christ Report"
3. 1982 - ABA Standing Committee's TWO reports
4. 1983 rejection of 1982 ABA report by NYSBA
5. 1985 NYSBA report "inspired" by 1970 ABA "Clark's Report"
6. 2015 Statewide Commission (Cozier's) Report.

So we have a span of 45 years during which time reports were mad by the ABA on the same issue in 1970 (45 years ago), then 12 years later (33 years ago) - and here we are in the year of 2015 with a brand spanking new report, which, very possibly, will be treated the same way the previous reports were - used in the toilet.

Now, with this attitude to the "luxury of time", let's look how the Commission approached its duties.

It called 3 hearings:

• in Albany;
• in Buffalo and
• in NYC

Nobody knows why this magic number.

Why 3? Why not 10, why not as many as needed?

Ok, let's look at how many witnesses testified and how many of those who wanted to orally testify the Commission was "unable to accommodate".

First of all, the Commission reports about its system of notification of the pending public hearings:

Let's note that invitations were NOT e-mailed to legal consumers, and the Commission is deliberately obscure as to who were the "individuals" who were personally invited by e-mail to testify at the public hearings.

There were no publications in newspapers addressing readers in the Buffalo region, New York City region where public hearings were held, and I doubt that Albany Times Union is read by many beyond Albany.

The Commission omits the fact that notices were very short, and that public hearings were held for 2 hours at lunch time during vacation period.

The Commission mentions that it had "time constraints" in conducting the hearings, but does not explain what was the reason for those time constraints.  

If members of the Commission were too busy doing their jobs, there was an easy solution - leave the Commission and let legal consumers sit instead of you, there would have been plenty of volunteers to conduct public hearings for as long as needed and let anybody who wanted to speak, to speak without any time restrictions.

Look at the numbers, ladies and gentlemen!

A total of 31 people appeared, and 50 people who wanted to testify were not allowed to do so.

The Commission could not accommodate JUST 50 WITNESSES!  In public hearings on matters of serious public concerns that were not properly addressed since the Clark report of 1970, 45 years ago!

If 31 witnesses were heard in 3 days (with time restrictions), all 81 people could be heard in, let's say, 10 days without any time restrictions.

The Commission was announced in February, formed in March and submitted the report in September.

They did not have 10 days to accommodate just 50 extra witnesses?

While the witnesses that they invited were, in their absolute majority, attorneys?

Those are called PUBLIC hearings?

And wait, the Commission patted itself on the head as to how good it was in inviting reporters to the hearings:

So, the Report claims that a "videographer" was allegedly present to record the "entire proceeding".  But, I was not given that recording pursuant to my FOIL request.

Also, the Commission modestly claimed that "an investigative reporter and photographer" from Long Island Backstory was present at the proceeding, with an inactive link leading to the general page of Long Island Backstory on YouTube (while there was an active link to publication in the New York Law Journal), yet the Commission report fails to mention that the "VIDEOGRAPHER" from the same Long Island Backstory, together with Gary Jacobs, the investigative reporter, was thrown out of the building when they attempted video recording, and a demand was made by a representative of the Commission that Gary Jacobs must leave the sidewalk before the building where the hearing was held, too, and that a video report of that incident was also available on YouTube, exposing the Commission for the sham that it is.

The Commission did not mention in its report that investigative journalist Gary Jacobs, from Long Island Backstory, simply suggested for the Commission to call the police to get him and his videographer off the sidewalk, which was, obviously bad for publicity for the Commission and was not done.

I ran a blog about this video report here.

And, the Commission does not mention the post-hearing video report of Elena Sassower describing how the Commission refused to see records material and relevant to the issues that were in front of the Commission, which Elena Sassower painstakingly put together and brought to the Commission - only to be rejected by Cozier.  

Or Elena Sassower's statement post-hearing that courts are responsible for having the attorney disciplinary law in disarray by refusing to address attorneys' pleadings without an explanation.  Elena Sassower mentioned that she had a lot more to say and was not allowed to cover her topics.  

Or how members of the Commission fled after it closed the hearing, obviously afraid of any questions or comments from the public.  

Or that the system is dysfunctional and corrupt, and those who were sitting in the presiding panel were responsible for that state of events.

There was simply NO GOOD REASON why witnesses who wanted to present any critical arguments or evidence, were harassed by the Commission, cut off, refused extra time, refused opportunity to present to the Commission important issues.

Omissions by the Commission in its Report as to what REALLY happened in the proceedings shows that the Commission was AFRAID that a proper record of the proceedings would be made by a professional crew of investigative journalists, capturing at the right angles, focuses and zooms, facial expressions and actions of participants and the presiding panel.

There is not one mention in the Commission's Report of criticism in the press and social media of its work, only references to laudatory reports.

Such self-praising presentation also does not promise that any real reforms will be made by this Commission.

So - too much time to save face, not enough time to do its job, so we are looking at another 45 years before any changes will be made in the old boys' club?

Victims paying their predators for daring to challenge them

In the recent article on Forbes.com, commentator George Leef whom I deeply respect, described the situation where victims of civil asset forfeiture in the State of Arizona are being punished for challenging governmental action in court and made to pay attorney's fees of perpetrators of misconduct against them.

George Leef states that it is completely unacceptable for victims to be punished for challenging perpetrators of misconduct, and that attorney fees should be awarded against the perpetrators, like it is done under the fee-shifting provision of the Civil Rights Act, 42 U.S.C. 1988.

Unfortunately, though, Arizona is not the only jurisdiction that punishes victims of governmental abuse for daring to challenge that abuse.

The very same thing has been happening for years in federal courts that transformed the "fee-shifting" statute, 42 U.S.C. 1988 in defendant-feeding and victim-bashing statute, awarding attorney's fees under this statute against civil rights plaintiffs rather than against civil rights defendants.

42 U.S.C. 1988 was enacted in order to help pro se, often indigent or low income, often "unpopular" civil rights plaintiffs with "unpopular" causes of suing the government, which many attorneys are simply afraid to do, to provide a financial incentive to attorneys to represent such clients without any money up front, with an opportunity to be paid by defendants if the case is won, kind of a contingency-basis provision.

Yet, the incentive turns out to nothing when

(1) most of civil rights cases get dismissed due to judge-created restrictions to jurisdiction created outside of federal court's power under Article III of the U.S. Constitution and in usurpation of exclusive Article I power of the U.S. Congress to enact legislation and to amend legislation, including jurisdiction of federal courts.  Thus, civil rights attorneys get nothing under 42 U.S.C. 1988;

(2) moreover, the promise of payment may and very often does turn into a loss for a civil rights attorney, and loss not only of time, but also money, because federal courts, in order to thin out their dockets, apply sanctions against civil rights plaintiffs "for frivolous conduct", for suing the government at all under 42 U.S.C. 1983 when courts created those illegal bars to federal jurisdiction, and award thousands upon thousands of dollars of attorney fees, under the same statute that was supposed to help civil rights plaintiffs, against such civil rights plaintiffs and their attorneys.

I was on the receiving end of this treatment multiple times.

After a while, a civil rights attorney inevitably would stop and think whether civil rights litigation is worth it at all if all you get is sanctions and money judgments against you.

Moreover, in my case at one attorney (who is also a judge in a criminal justice court and thus a favorite of the judiciary) obtained sanctions for me from a judge I sued in a completely unrelated case by inciting the judge by saying to him, essentially - she is bad because she sued you, sanction her.  And he did.  And now he is trying to do the same with another set of judges, on appeal.  The name of this winner is Jonathan S. Follender or Arkville, New York.

He obtained a dismissal of a meritorious case and sanctions against me by inciting the already indictable judge James Tormey who was sued by a female court attorney/clerk for discrimination and retaliation, which resulted in a $600,000 settlement, for some inexplicable reason out of taxpayers' pockets, after 4.5 years of litigation, and he is sued now again by yet another female court employee, also for discrimination and retaliation, and, of course, the New York State Commission for Judicial Conduct is asleep at the wheel and would not investigate Judge Tormey's misconduct in any of these cases despite all affidavits available that were filed in those cases.

After obtaining sanctions from this judge/woman-hater by saying - "judge, she sued you, get her,", against me as yet another female attorney/victim, Jonathan Follender was inspired that his trick worked.

He is now repeating the trick with an appellate court, openly claiming that, because of my professional activity as a civil rights attorney, and, as a civil rights attorney, am suing the government, which may include courts (as necessary parties where constitutional challenges are involved), and because I included into such lawsuits (necessarily) the appellate court handling the case, the appellate court must sanction me.

Beautiful logic.

And right when I received Follender's appellant's brief asking, once again, another court, to "get her - she sued you", I read George Leef's piece on victim-bashing in Arizona.

In my case, victim-bashing turns into chasing of victim's attorney through courts and sanctioning them over, and over, and over again, for suing judges - by the same judges whom I sued, who have NO authority to decide THEIR OWN cases.

To show that such civil rights plaitniffs-bashing, victim-bashing, and bashing their attorneys, is not just my experience, but a predominant tendency in civil rights litigation, I suggest my readers to consider this law review article.

Which, reflecting the sad reality, states that "The Chill Goes On".

And it will go on until you, my readers, start writing petitions to your representatives in the U.S. Congress to amend 42 U.S.C. 1988, clearly stating that, under no circumstances it can be used against civil rights plaintiffs and their attorneys, and that under no circumstances victims of governmental abuse whose cases are dismissed without reaching the merits, on "failure to state a claim" grounds, as well as on various immunities-comities-deferences-abstentions-Rooker/Feldman grounds, should not be sanctioned and made to pay perpetrators' legal fees, nor should civil rights attorneys be so sanctioned, otherwise civil rights litigation will simply die out, as it is already doing.

Changes in fraud upon the court law made the Mokay saga a corpse, but the zombi treads on

In May of 2014 the New York State Court of Appeals changed the law pertaining to fraud upon the court.

It made the civil cause of action in fraud upon the court inapplicable to:

1) individuals who were not parties in litigation out of which the fraud upon the court claim arose;
2) inapplicable to settlements; and
3) inapplicable to conduct that occurred after the final judgment in the case

I will illustrate my points.

This is a direct quotation from the case CDR Creances S.A.S v Cohen, 2014 NY Slip Op 03294 Decided on May 8, 2014: 

Quote

=====

The evidentiary standard applied by the federal courts is sufficient to protect the integrity of our judicial system, and discourage the type of egregious and purposeful conduct designed to undermine the truth-seeking function of the courts, and impede a party's efforts to pursue a claim or defense. We adopt this standard and conclude that in order to demonstrate fraud on the court, the non-offending party must establish by clear and convincing evidence that the offending "party has acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case and his adversary's defense of the action".

Unquote
=======

The new standard allows only a non-offending "party" to bring a claim of fraud upon the court.  The Mokay children were not parties in the divorce action of their parents.

The new standard requires a finding by clear and convincing evidence - that was not done for Mr. Neroni.

The new standard requires a finding, by clear and convincing evidence, that the offending party "has acted knowingly in an attempt TO HINDER THE FACT FINDER'S FAIR ADJUDICATION of the case AND his adversary's defense of the action".

One cannot hinder adjudication by engaging in conduct after the adjudication is concluded, thus, the new standard excludes conduct committed after the final judgment in the case out of which the claim of fraud upon the court arises.

On cannot hinder fair adjudication of the case AND, at the same time, his adversary's defense of the action where the case was settled, thus a claim of fraud upon the court excludes settlements, according to the new standard.

Since Mr. Neroni's case was very much pending, and the trial was set on May 13, 2014, 5 days after the decision, but was adjourned on Plaintiffs' request.

Plaintiffs never disclosed the new law to the court, as they were required by law, and continued with litigation that has become frivolous as of May 8, 2014.

Yet, the law came in effect before the case was finished and is fully applicable to it.

So, now we have an "interim" judgment for over $300,000 awarded to people who had no right to assert the claims, by a judge who prefers to engage in unauthorized practice of medicine and re-diagnose back injuries of female immigrant attorneys who sue him (that is me) rather than to do his job.

I am filing a complaint against Dowd and against the trio of attorneys (Richard Harlem, Eric Jervis, James Hartmann) who perpetrated this fraud.

As I said before in the Neroni v Harlem case, fraud asserted by Richard Harlem as an attorney is not an accident or mistake, Richard Harlem learnt at the knee of a master, see my blog about the Blanding saga.

As to responses of authorities to these complaints, stay tuned.