"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Sunday, March 23, 2014

That mysterious rule of frivolous conduct: a tool controlling attorney independence

New York State courts, as many federal courts and courts of other states, sanction attorneys and litigants for what is called "frivolous" conduct in litigation.

In New York, such sanctions are imposed pursuant to a rule created by the New York State Court Administration, 22 NYCRR 130, bypassing the Legislature.

Under New York rule, the following conduct is considered "frivolous":

"(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false",  22 NYCRR 130.1-1(c).

Factual issues under New York State Constitution are triable to a jury.

Motions for determinations of frivolous conduct are decided by a judge, and often without any hearing or oral argument.

What I saw in how these rules of frivolous conduct are applied, they are applied by judges in accordance to their whims, and in accordance with the level of discontent of a particular judge with a particular attorney or party.

I would rather quote a judge's description as to how "difficult" judges can be, otherwise I will be punished for "impugning of integrity of the judiciary".  Well, I will be punished anyway, whether I quote another judge or not.  I was already punished for quoting statements of New York State Assistant Attorney General about fraudulent behavior of a retired judge and his son.  NYS Attorney General in question was not sanctioned for putting the statement into the public records in the first place, but I was sanctioned for quoting those statements.  Go figure...

Anyway, according to definitions of Federal Judge James F. Holderman, "difficult judges" can be of 6 categories, as follows:

  1. "The Snap-Judgment Judge"
  2. "The Stalled Judge"
  3. "The Intrusive Judge"
  4. "The Angry Judge"
  5. "The Impaired Judge"
  6. "The Biased Judge"

I don't suggest to carry this enlightenment from Judge Holderman into your court pleadings, you will be sanctioned for it for sure.

Yet, since Judge Holderman mentions these categories, and states that from his own experience, such categories must exist.  I have no reason to doubt Judge Holderman's word on that, especially that I have appeared in front of, I believe, all categories of "difficult" judges listed above.

When a "difficult" judge appears on your case and especially if he doesn't like you for any reason, to impose frivolous conduct rules against you is a piece of cake.

After all, what is and is not without merit is a judgment call.

What is supported by New York "laws", may be unconstitutional, but New York courts (1) routinely ignore constitutional arguments;  (2) routinely sanction attorneys for constitutional arguments.  Happened to me more than once.  You raise a constitutional argument, you receive back a decision where your constitutional argument is not analyzed "but for" a statement at the end of the decision "and the court has reviewed appellant's other arguments and found it without merit".  Period.  Why, what was the reasoning, how the constitutional question was resolved - nobody knows.  But the argument is without merit.   Even if it is based on a string of the text of constitutional provisions, U.S. Supreme Court precedents, articles of prominent law professors.

And when your constitutional arguments are reviewed (if at all) under the umbrella of "all other appellant's arguments", the interesting result of it is that, on the one hand, your opponent will claim issue and claim preclusion if you ever raise that issue again, and on the other hand, the resolution of that issue or of that claim will never be reflected as a precedent, because there was no specific resolution - just a conclusory statement about "appellant's other issues" being without merit.

Of course, there is case law where courts impose upon themselves requirements to make specific findings of why your conduct was without merit.

Yet, if the court found something under the state law, the court applies the doctrine of "constitutional avoidance" and simply "does not reach" your constitutional arguments.  The result is the same - you invoke constitutional arguments that must protect you from sanctions for the rule of frivolous conduct, and the court puts your constitutional arguments under the umbrella of "other appellant's arguments" which are allegedly without merit, for an unknown reason.

Reason is unknown, but sanctions are known.

The U.S. Supreme Court, in its seminal decision, Marbury v. Madison, through which the U.S. Supreme Court claimed its own authority to interpret the U.S. Constitution, indicated that any law that is contrary to the U.S. Constitution is void (as in "null and void").

Thus, issues of unconstitutional conduct of courts and of unconstitutional application of rules against frivolous conduct must be reviewed first.  Instead, at least the Appellate Division 3rd Department in New York reviews such issues last, or doesn't review them at all.   Yet, if actions of the lower court were unconstitutional, the lower court had no authority to act the way it acted, and, by reaching factual issues first, the appellate court thus violates the appellants' due process of law by applying the so-called "hypothetical jurisdiction", which the U.S. Supreme Court has deemed unconstitutional long time ago.

I turned the 3rd Department into the Commission for Judicial Conduct since 2009 for having a policy of consistently applying hypothetical jurisdiction to cases and jumping over jurisdictional issues in order to resolve factual issues, as a matter of expediency.  Alas, a justice of the 3rd Department, the Hon. Karen Peters, was sitting on the Commission at the time I complained, and the complaints were dismissed without investigation.  Recently, I've read a transcript of a hearing back in 1980s in the New York State Legislature discussing the first 10 years of discipline by the Judicial Conduct Commission.  The speaker lauded the Commission for effective discipline, because discipline actually plummeted from 58 judges during the first year of the Commission's work to somewhere around 16 judges a year in 10 years.  For the speaker, efficient stalling of citizen complaints, which is what is in essence, happening, was the equivalent of efficient judicial discipline.

So, back to the determination of what is or is not meritless.  It is subjective, and you can be sanctioned simply because you "fell out of grace" or never got into that grace.

My previous two blogs, about secret judges in NY and potential for secret influence upon judges through membership in the American Inns of Court, adds another layer to the question as to why judges would sanction some attorneys for conduct they do not sanction others for.

I intend to public in this blog documents that I have that show misconduct of attorneys who were not sanctioned.  I will also publish in this blog documents showing what I was sanctioned for, which was not misconduct, but assertion of constitutional rights of my clients.

The next prong of the rule, sanctions for actions undertaken "primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another".  Now, there is a cause of action in New York called "prima facie tort".  I once sued a powerful attorney on behalf of a client under this cause of action.  The court dismissed the complaint stating that for that cause of action the attorney must intend not to "primarily" "harass or maliciously injure another", but "solely" or "exclusively" intend to do so.  Since in any litigation any attorney can come with 300 reasons why he sued on behalf of a client, the "solely" element is simply unprovable against an attorney. 

As a result, the powerful attorney escaped liability, but I was sanctioned later on for making statements against that powerful attorney, based on the record, because my conduct was claimed to "primarily" "harass and maliciously injure" him.  Go figure.

Let's also focus on this mysterious "another".

To any reasonable reader "another" in this rule is not restricted to a party or attorney participating in the given litigation and can involve third parties.

Apparently, not only puts the judge into position of advocate for third parties who are not parties to litigation.  Moreover, my research shows that judges sometimes use the rule sua sponte, or without any motions from parties in front of them, to protect parties in litigation, which puts judges into the position of advocating for those parties, when those parties did not ask for such advocacy.  The situation is even more awkward that I only saw such sua sponte advocacy by judges on behalf of powerful and well-connected attorneys, and not on behalf of indigent clients or civil rights attorneys.

As an example, I was sanctioned for mentioning place of public employment and publicly available salary of an attorney as an example of selective enforcement of disciplinary rules (argument was on behalf of a client), where the higher the rank of the attorney the less likely it is that the attorney's misconduct, no matter how bad, will be addressed in New York, 3rd Department.  The judge sanctioned me for "invasion of privacy" of that publicly employed attorney for (1) quoting the account of his fraudulent shenanigans, as portrayed by Assistant New York State Attorney general in public court records;  (2) quoting that he was never disciplined and instead is in public employment;  and (3) quoting how much taxpayers are paying that attorney who should have been disbarred years ago for what he did.

What the attorney did is, being a law clerk for a Supreme Court Justice, and knowing that New York State Constitution prohibits his employer (judge) to practice law, the law clerk agreed to be a witness on the will and codicils to the will drafted by the judge where the judge was bequeathing to himself over 1/2 mln dollars worth of bounty.  When signing what his employer-judge drafted, as a witness, the judge's law clerk Denis Dineen also saw that other witnesses were, let's say, "members of a close club", Judge Robert Harlem's son Richard Harlem, Judge Robert Harlem's secretary Irene Mann (who in the future became Judge Harlem's wife), and such "close circle" of witnesses should have given any ethical attorney the creeps, because not only Judge Harlem was practicing law, not only he was bequeathing to himself hundreds of thousands of dollars in a will he was drafting while being a sitting judge, but he was also involving two court employees into the conspiracy of unauthorized practice of law by the judge, and the judge's won son.  Such a "close circle" of witnesses should have informed attorney Dineen to turn Judge Harlem into the Commission of Judicial Conduct for unlawful and unethical behavior.  Instead, attorney Dineen signed where he was told to sign and kept his job. 

I was sanctioned for bringing unethical behavior of Attorney Dineen in litigation, as "invasion of privacy". I do not believe unethical behavior of attorneys, reflected in the pleadings of New York State Attorney General in the Matter of Blanding, Otsego County Surrogate's Court public records, is invasion of privacy.  I do not believe pointing out such behavior is sanctionable.  Go figure.  I was sanctioned.

By the way, the court records of the Blanding case reflect that NYS AG turned attorneys Richard Harlem and Robert Harlem into the Professional Conduct Committee of the 3rd Department.  None of them were sanctioned.

But I was, for quoting the Blanding case in court proceedings involving Robert Harlem and Richard Harlem.

The third prong of the rule, asserting material issues that are false, is resolved by the 3rd Department quite simply.  It simply skips portions of the record as if it does not exist and affirms sanctions as if they were false, even though they were true, and the record reflects that.  While doing it, the 3rd Department knows that the chances of getting a review and reversing its rulings on appeal to the Court of Appeals and especially to the U.S. Supreme Court are slimmer than, as they say in the East, for a camel to get through a needle's eye.

The 3rd Department so far skipped the following:

1) 2 motions in one case affirming sanctions against me;

2) an entire transcript in another case affirming sanctions against me;

3) an entire motion in a criminal case People v. Quentin Tompkins affirming a criminal conviction (where the motion was to vacate because the presiding judge influenced the jury);

4) most recently, the fact that at sentencing, Judge Carl F. Becker of Delaware County Court relied upon his ex parte review of "videos from jail" allegedly showing defendant's movements, for purposes of determination of defendant's credibility and the issue whether to send him to prison or not (People v. Mitchell). 

The defendant then was denied access to such videos allegedly reviewed by the sentencing judge because

(1) the District Attorney did not have such videos "in his possession",

(2) the court administration is not amenable to FOIL requests, and

(3) the jail cannot release such tapes for security reasons. 

I have a copy of defendant's desperate correspondence with the court, the Delaware County District Attorney, the Delaware County Sheriff's Department and the Delaware County Board of Supervisors in a futile attempt to see the evidence based on which the defendant was sent to prison. 

In fact, the defendant was entitled to see any evidence upon which the court relies while taking away his liberty.

A judge who:

(1) engages in ex parte review of extrajudicial evidence and

(2) testifies sua sponte at the sentencing as an unsworn witness on behalf of the prosecution as to what the judge saw of defendant's alleged conduct on the jail tape which the judge mysteriously obtained bypassing both prosecution and defense and which tape mysteriously disappeared and was not available to the defendant after sentencing

Relying on extrajudicial evidence when making a life-changing decision for a party constitutes gross judicial misconduct.

Of course, knowing the "efficient" way of dealing with judicial discipline - sweeping complaints under the rug - I doubt that Judge Becker will be ever disciplined for his conduct toward Nicholas Mitchell.  After all, who is the convicted criminal Nicholas Mitchell and who is the respected judge Carl F. Becker? 

Here, a criminal defendant was sent to prison based on the sentencing judge's ex parte review of mysterious tapes which are not in the court record, were never available to the defendant and are not available after the conviction "for security reasons".

The 3rd Department affirmed Mr. Mitchell's conviction without even considering the issue of Judge Becker's ex parte review of the "jail videos", while only stating that the sentencing court "noted its own observations of defendant's mobility" and that such an inquiry was "sufficient" for purposes of sentencing.  The appellate court simply did not reach the issue that the "observations of defendant mobility" by the judge were based on ex parte communications with unknown parties and reviewing extrajudicial evidence not available to the defense (or prosecution, as the DA's letters to the defendants later demonstrated).  Thus, for an innumerable time, the issue of judicial misconduct was swept under the rug.  By the court which is supposed to uphold the law, not violate it by such "selective blindness" to judicial misconduct.

With this level of "precision" employed by the appellate court, what is false and what is not becomes a matter of the court's peculiar, selective and subjective opinion rather than of fact.

When I hear for the umpteenth time from some high judicial pulpit that there is equal protection of laws in New York courts, I wonder, do people saying that believe what they are saying?  Don't they see what is going on around them?  Not only I have eyes, not only I can read, judicial decisions which are contrary to the record are matters of public record and people DO TALK about them.

When an appellate court skips or contradicts portions of the record in arriving at a final decision which can and does change people's lives in the most profound ways, it is gross negligence and judicial misconduct.  Yet, I have not one, not two, but multiple examples where the 3rd Department does just that.

I am preparing to put documentary evidence into my blog and showing, by detailed legal analysis, how the 3rd Department screws people's lives, leaving them without recourse and, thus, interfering with fair administration of justice and destroying public trust in the integrity of the judiciary and the rule of law.

What Appellate Division 3rd does with its negligent or biased work, is dangerous to the public.

It sends people to prison instead of remanding their cases back to a different, unbiased judge.

It deprives people of their homesteads, as it happened to my elderly client Beverly Sines, because the 3rd Department, against its own rules and jurisdictional restrictions, decided to rule contrary to the contents of the record (see footnote 1 saying there was an attorney contingency clause in the contract of sale while the whole argument of appellant was based on the lack of such attorney contingency clause in that same document), and to rely upon un a sworn testimony of an attorney at the oral argument (see footnote 2 stating that respondent's counsel "affirmed at oral argument that plaintiff stands fully ready, willing and able to meet the contractual terms).

Oral arguments on appeal in the 3rd Department do not presuppose affirmations under oath, especially by attorneys, and especially on issues not reflected in the Record on Appeal, and that was exactly such a situation.  Going outside the record is attorney misconduct in appellate practice.  Yet, in this case, attorney misconduct was rewarded with a victory on appeal.  Go figure.

Once the 3rd Department or any other intermediate appellate court in New York has had their say, the rule of preclusion pops in.  The way preclusion rules work creates peculiar paradoxes.

For example, if the 3rd Department rules that the Sun is rising in the West, that is a factual determination and, if not appealed further (or, rather, if not appealed because NYS Court of Appeals and the U.S. Supreme Court do not take in appeals as of right on factual issues), the litigant will end up with a factual finding by the court that the Sun rises in the West and will be precluded from arguing otherwise anywhere.  For that litigant, as a matter of law, the Sun is rising in the West.

Some findings of the 3rd Department are exactly on the level of the "Sun rising in the West", yet, litigants have no recourse because the 3rd Department is the last-stop court for appellate review, and the court knows it well, which explains the arrogance of the Appellate Division in declining motions to vacate, renew and reargue, no matter how meritorious, without an explanation.  They know you have no recourse to challenge their arrogant ways anyway.  There is no appeal from denial of such a motion, no matter how wrong it was, under the applicable law.  

I have raised arguments in front of the 3rd Department on a disciplinary case of an attorney I was representing, pointing out that the decision of the lower court that the 3rd Department is using to apply collateral estoppel to it and to deprive the attorney of his due process hearing as to his license and livelihood after decades of practice, is clearly wrong, as a matter of fact, law and court records. 

The 3rd Department rejected my arguments by stating, whether the underlying court order was true or not, is irrelevant, it was final.  But the issue in attorney discipline was - whether the attorney is or is not dangerous to the public!  If the 3rd Department, the disciplinary body, does not care whether the underlying decision is right or wrong, why discipline the attorney? For what?  And especially - without a hearing or right to appeal? 

Yet, that's how the rules of preclusion work.   And that's how the court ruled, and the attorney in question was disbarred without a hearing, after 37 years of practice.  His "problem" was that, being a professional trial lawyer of several decades, he insisted that he did nothing wrong under the applicable law instead of scraping, bowing, saying "mea culpa" and pleading for forgiveness.

The same rules of preclusion will apply to incorrect court decisions by "difficult" judges about frivolous conduct, right or wrong, reasonable or unreasonable, crazy or not.

As a summary, the frivolous conduct rule, with its three prongs, the way it is applied by the courts, can only lead to further abuse of power by the courts and further arrogantly negligent and/or biased review of cases by the appellate courts, because attorneys appearing before courts have only obligations and no rights, their livelihood is controlled through licensing by those same courts attorneys must challenge, decisions of "difficult judges" are subjective, there is no effective or transparent judicial discipline, appellate review is scanty, often puts issues in the "cart-before-the-horse" order, skips chunks of record, and provides for finality without fairness.

So far, I saw frivolous conduct rules not applied in multiple situations where, if that rule is applied equally across the board, such rules should have been applied.   And, on the opposite, I saw that same rule applied simply when a "difficult judge" wants to "get" an independent attorney asserting constitutional rights of his or her client.

The rule of frivolous conduct never passed through the New York State Legislature, even though it:
allows the judge to practically convict an attorney or party of criminal behavior, while being, as it was in my case, the complaining alleged victim, investigator, prosecutor, judge and jury.

 In New York, harassment is a criminal offense and there is no civil cause of action for harassment.  For judges to protect themselves and those attorneys they favor, the NYS Court Administration, bypassing the Legislature, created a hybrid where the judge, without following the rules and constitutional protections of the Criminal Procedure Law, can commence, prosecute and adjudicate, in a civil proceeding, by preponderance of the evidence, without a hearing, without motion practice, without discovery, without the right to remain silent, a violation or misdemeanor level charge of harassment and impose twice the fine of an A felony for it. 

I believe, such a rule is of a level of legislative policy and requires to be enacted by the Legislature and not introduced, self-servingly, I must say, by the court system, giving judges a perfect and effective tool of vengeance against "inconvenient" attorneys.

 I believe, the Court administration or the Chief Judge of NYS Courts have no authority to legislate by changing causes of action and prosecution of essentially criminal proceedings in the way rule 22 NYCRR 130.1-1 allows. 

Whether and when this court will, if ever, be overturned by a court, is a question.  Yet, there is an easier solution, simply to contact your representative in the New York State Legislature and ask to abolish or amend it legislatively, correcting its overbreadth and vagueness, prohibiting the use of the rule as punishment for criticism of official misconduct, and introducing guidelines as to procedural protections and discovery in frivolity proceedings, now non-existing, as well as requiring elevated burden of proof and a determination by a jury at an evidentiary hearing.

As soon as the jury is injected into the equation, I bet that the rule of frivolous conduct will lose a lot of its attractiveness to the judiciary. 

Given overbreadth of the rule and its arbitrary application by the courts against predominantly civil rights attorneys and not against politically connected attorneys and law firms, given the devastating effect that a finding of frivolous conduct plus the exorbitant fines can have upon an attorneys license, livelihood and reputation, the tool is most effective tool of control over attorney independence, is unconstitutional and must be abolished, as depriving litigants of independent advocates in court.

Did I mention that under this rule judges, without a hearing, may impose upon an attorney or a party sanctions higher than fines for an A felony?  $10,000.00?  Against a sole attorney?  For each alleged "incident" of misconduct?  Good luck finding an attorney who would not be willing to sell his client out if a sensitive issue comes up, for fear of being blasted by a judge under this rule.  

When the legal profession (or the judicial profession) are called the honorable profession, I reserve my opinion.  I will reserve it until the judiciary:
  • accepts transparent and efficient public discipline for misconduct of judges,
  • drops protection of absolute judicial immunity for malicious and corrupt acts on the bench,
  • provides truly efficient means of appellate review,
  • stops violating its own rules in a self-serving manner, calling attorney rules of frivolous conduct mandatory, but applying mandatory rules of judicial recusal as committed to the "discretion" of the challenged judge;
  • stops selectively applying its rules to the "high and mighty attorneys" and to sole practitioners,
  • stops using financial sanctions and disciplinary proceedings as a sword against critics of judicial misconduct;
  • stops accepting benefits from attorneys for elections and through secret memberships (see my blog regarding American Inns of Courts) and, most important,
  • stops controlling attorney status of attorneys who challenge judicial rulings and judicial prejudices in motions to recuse, disqualify and in civil rights lawsuits.

I will similarly reserve my opinion as to whether the legal profession as a whole is an honorable profession until the legal profession, at the very least, regains its freedom of association, rises from its collective knees and claims its independence from the clutches of the judiciary where it left it.

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