"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.

Wednesday, June 25, 2014

The rules of law for sons of judges - and the billing practices of sons of judges which so far escaped public review

Recently, I participated in a hearing for attorney's fees against me and my husband in the Mokay saga.

Our alleged fault was to make a motion to vacate the sanctions imposed upon us by the previous presiding judge, Judge Becker, after we sued the judge twice, in state and in federal court.

Previously, the federal court refused to reach the merits of the issue whether such sanctions were imposed in retaliation based on the concept of judicial immunity/lack of jurisdiction; and the Appellate Division did the same based on the claim that the pattern of sanctions was from other cases and thus outside of the record of direct appeal and the Appellate Division similarly lacked jurisdiction to review it.

So - I made a motion directly in the Mokay case and incorporated that pattern in that motion, so that it would be part of the record on appeal now.

Yet, for the judge who recused from presiding over a related case, but is nonchalantly presiding over the Mokay saga, and who is consistently ruling in favor of the plaintiffs where there is no way to do it, decided that the motion was somehow frivolous and ordered a hearing on attorney's fees.

Ok, I come to the hearing on attorney's fees.   Normally, a party/attorney against whom attorney's fees are sought, has a right to receive a written application for such fees beforehand, in order to be able to research the legal grounds and the factual issues pertaining to the claimed fees.

I received nothing in advance from Mr. Harlem.  That was the same Richard Harlem whose prior shenanigans I described here and here and who, together with his now late father (the retired Supreme Court Justice Robert Harlem, the former Chief Judge of the 6th Judicial District) have escaped responsibility by a clear and shameless trick of hiring the prosecutor's firm who was supposed to investigate and disbar them.

So, I received nothing from Mr. Harlem in terms of application for attorney's fees before the hearing.

I come to the hearing, the hearing starts, and THEN Mr. Harlem seeks introduction into the evidence of his attorney affirmation and billing statement.  I object and ask for a reasonable adjournment to review the written submission of Mr. Harlem.  Judge Kevin Dowd overrules me by stating to me that I had a notice of the hearing and the hearing will proceed. 

Of course, Judge Dowd came to Delhi, NY from Norwich, NY over the mountains and did not want to come another time - but that should not be a legitimate reason not to give me a reasonable time to prepare for the hearing, should it be?

Judge Dowd simply tells me that I have a right to "ask Mr. Harlem questions".

Mr. Harlem testifies under oath, I start crossing him and then simply tell the court that I need to be given additional time to at least read the affirmation/billing statement to be able to intelligently ask these questions, otherwise it is a complete ambush.  

I am given 15 (!) minutes to read Mr. Harlem's application for attorney's fees.  That's all Judge Dowd thinks I need to prepare for a slap of legal fees from Mr. Harlem.

Then, under cross-examination, the following interesting things start to transpire.

1/  Mr. Harlem does not know whether he did or did not file the original of the retainer agreement and statement of his clients' rights signed by his clients, in compliance with 22 NYCRR 1400.  The case he is enforcing is the contract to make a will out of a judgment of divorce, and 22 NYCRR 1400 applies to all enforcement actions of the judgment of divorce.  In New York, if an attorney failed to file a retainer in a case like that in a case requiring such a filing, and a specific retainer at that, specifically showing consent of the clients on multiple issues, the attorney who failed to do that is not entitled to ONE PENNY of legal fees from his clients - and, of course, if he cannot charge his clients, he cannot charge opponents of his clients.

Mr. Harlem is mumbling that he is not sure whether such a retainer was or was not filed with the court.  I know it was not.  I ask the court to take judicial notice of all proceedings and filings in the case.  Judge Dowd says it is irrelevant, it is not a divorce proceeding.  22 NYCRR 1400 does not apply exclusively to divorce proceedings, but also to any enforcement proceedings of judgments generated by divorce proceedings, and this is clearly such an enforcement proceeding.

So - Mr. Harlem has failed to file a retainer agreement in an action he filed 7 (seven !!!) years ago, where the only relief sought is his legal fees.  Thus, it is pretty clear as a matter of law Mr. Harlem is not entitled to any fees whatsoever.  Right?  Wrong!  It is a son of a judge, and we are dealing with Judge Dowd who was dreaming of urinals built in his honor by a law school during a divorce proceeding.

Judge Dowd rules 22 NYCRR 1400 does not apply and lets the proceedings go on.

2/  I ask Mr. Harlem whether he was ever investigated by the New York State Attorney General for inflating legal fees.  I know he did, and he knows he did, and here you can see the actual document, NYS AG's "Objections to account" where the New York State Attorney General has stated, item by item, exactly how Richard Harlem, together with his father Robert Harlem, inflated their legal fees.

In answer to my question Mr. Harlem first objects to the relevancy of my question.  My question is, of course, relevant because (a) we are in a hearing where Mr. Harlem asks to award legal fees to him and his clients;  (b) Mr. Harlem has already asked Judge Dowd to take judicial notice of the case where NYS AG raised that issue.  So, I simply asked Judge Dowd to take judicial notice of proceedings he already took judicial notice of at Mr. Harlem's request previously.  Judge Dowd agrees to take judicial notice of the Blanding case.  

Mr. Harlem then says - under oath - the word "No", and the judge cuts off my further questions by saying - Mr. Harlem said that no, he was not investigated by the NYS AG.  I am recalling this from memory, I ordered a transcript and then I will be able to show exactly how it happened.

So - there are "Objections to Account" by NYS AG in the Blanding case, Mr. Harlem denies ever being investigated by the NYS AG for inflating his legal fees, under oath, the presiding judge takes judicial notice of the Blanding case, together with the Objections to Account, and still rules for Mr. Harlem, without imposing any sanctions on Mr. Harlem for lying under oath. 

3/ My next question.  Mr. Harlem, you mention here your hourly rate of $200/hr.  Is it reflected in your retainer agreement with your clients?  Mr. Harlem mumbles "I do not recall".

4/ My next question. Mr. Harlem, you put into one billing entry several services, how much time was attributable to each of them - I am just asking why the billing statement was not properly itemized, which is a disciplinary violation.  Mr. Harlem says "I do not know".

5/  My next question.  Mr. Harlem there are abbreviations mentioned in the billing statement, RAH, POD and ZLS.  What do they mean?

Mr. Harlem replies:

RAH - that's his code, Richard A. Harlem;
POD - that's the code for his employee, and answering a follow-up question, no, the employee is not admitted to practice law;
ZLS - that's a code for the legal secretary

Mr. Harlem charges $100/hr for services of his legal secretary, including for "notary services".  Now, I am a notary and I know that I cannot charge for my "notary services" at $100/hr, I can charge 1 dollar per notarization, and usually notaries in New York notarize documents for free, which is what I do.  Mr. Harlem puts into a billing statement a charge for his legal secretary's "notary services" at $100/hr - and Judge Dowd happily endorses it.

It is not allowed for an attorney to charge for services of auxiliary personnel unless there is a written authorization from clients for him to do so in a retainer agreement.

Mr. Harlem does not know whether there is a written authorization in his retainer agreement for ZLS or POD, which would require the court to strike services of ZLS and POD from the billing statement.  I asked for it, Judge Dowd denied my request without an explanation of grounds.

Now, the question about the POD guy.  Mr. Harlem charges for his services at $100/hr, including for his drafting of an affirmation and a memorandum of law.  To draft such documents constitutes a practice of law.  Mr. Harlem charges for such services, once again, at $100/hr.  

I know the Committee for professional conduct grilled both Mr. Neroni and myself as to whether Mr. Neroni even talks to my clients in my home law office (and Mr. Neroni's own home), much less drafts affirmations and memorandums of law, at a charge to my clients.  Mr. Neroni had to sue the Committee in federal court to stop this harassment.

Had my husband drafted any such things, both my husband and I would be in jail - my husband for unauthorized practice of law, me - for aiding and abetting unauthorized practice of law.

There is no difference why a person does not have a license - because he lost it (like my husband, through Mr. Harlem's shenanigans in the Mokay saga which continue to this day), or because he never had it to begin with, like Mr. Harlem's employee POD.  No license is no license, and the crime of unauthorized practice of law punishes for practicing without a license.

Yet, my husband, a person without  a law license, is not allowed to even talk to my clients, much less draft documents that I would charge to my clients, and to Mr. Harlem, the son of a late Supreme Court justice, Judge Dowd magnanimously allows to not only have a non-attorney draft affirmations and memoranda of law, but also to charge them to their clients - and to me and my client - at $100/hr.

In his "closing speech"  Judge Dowd stated that the issue of unauthorized practice of law that I raised is "bizarre" and went into de facto unsworn testimony on behalf of Mr. Harlem and his clients reminiscing how Judge Dowd was interning at a DA's office before he was admitted, and was drafting indictments.  From his own experience and unsworn testimony Judge Dowd drew an inference that what Mr. Harlem was doing was ok.

Thus, Judge Dowd further aggravated his display of, how to put it mildly, lack of knowledge of the applicable law, because it was not unauthorized practice of law for him to draft those indictments at the DA's office. 

22 NYCRR 805.5, the rule of the New York State  Supreme Court Appellate Division 3rd Department allows eligible law students to practice law in governmental organizations like the DA's office. 

I know for a fact that many students in my law school class who interned in the DA's offices got such preliminary admission and even tried cases in courts.

No rule allows non-lawyers to practice law in a law office of a private attorney.

It is not allowed for a private attorney to bill services of his auxiliary staff to the client without the client's express permission, much less to bill for drafting of affirmations and memorandums by a person not admitted to the bar.

It was clear as day.

An attorney submitted to the court an application for legal fees, and then claimed to the court under oath that certain legal services in that statement were provided by a person who was not licensed to practice law.  The court had to deny attorneys' fees for the services of POD and sanction Mr. Harlem for engaging his personnel into unauthorized practice of law.

Yet, for Judge Dowd it was "bizarre" that I made such an argument against Mr. Harlem, because Judge Dowd stated that I should have settled instead of going into a hearing in the first place. 

I guess, that was the rationale why Judge Dowd denied me the adjournment, too - because I should have settled in the first place.

6/ I also asked a question whether the $100.00 hourly rate for POD and ZLS was authorized by clients in the retainer agreement.  Mr. Harlem could not recall or did not know.

7/ I asked whether Mr. Harlem's clients authorized him to bill them for services of a person who was not admitted to the bar.  Mr. Harlem could not recall or did not know.

8/ I asked whether Mr. Harlem's clients authorized the billing statement presented to the court, because it is their ultimate obligation shifted to my client, and if they disagreed with it, it could not be passed to my client.  Mr. Harlem said that he showed the statement to them, but they did not say "yes" or "no", so obviously he did not seek their approval.

So, to sum it all up, here is an addition to the billing practicing of the law firm Harlem & Jervis of Oneonta, NY partially belonging to Richard Harlem, son of a judge.

  1. Lack of itemized billing - to all other attorneys in New York State it is a disciplinary violation;
  2. Billing for services of auxiliary personnel without authorization of the client;
  3. Billing for legal services of an individual who was not licensed to practice law - which is a disciplinary violations, if not a crime, for all other "mere mortal" attorneys in the state of New York;
  4. Billing for notary services at $100/hr;
  5. Billing for postage, copying and mileage - that the NYS AG's office claimed back in 1999 is usually absorbed by law firms, but Mr.Harlem did not learn the lesson and continues to bill for it;
  6. Failure to comply with the requirements for a specific retainer agreement and clients' bill of rights under 22 NYCRR 1400 while bringing a case of enforcement of a contract to make a will out of a judgment of divorce;
  7. Failure to have proper retainer agreements justifying hourly rates of attorneys and law firms' personnel;
  8. Failure to get approval of legal fees from the clients before presenting them to the court.

I think, other clients of Harlem & Jervis should be aware of these practices.

Mr. Harlem made a statement at the hearing that it was not an enforcement of a matrimonial judgment because it was "just" an enforcement of a contract to make a will.

Yet, the entire judgment of divorce was submitted to the court by Mr. Harlem as part of his 2nd Amended Complaint.

Moreover, if it was "just" an enforcement of the contract to make a will, which is what Mr. Harlem argued to the court in 2007, before joining the Estate as a co-plaintiff, and arguing AGAINST giving the properties to the Estate, Mr. Harlem's first-in-time client (an outrageous conflict of interest), why the Estate was even joined?

I keep asking this question, and I keep getting sanctioned by the court for asking this question.

Mr. Harlem, throughout the Mokay litigation, failed to reveal any theory of prosecution on behalf of the Estate, stated that the decedent's children are enforcing their late father's and mother's contract to make a will out of a judgment of divorce.


In my husband's order of disbarment the Appellate Division has already ruled that my husband "devised a plan with his client that would circumvent, in part, the intended purpose of a judgment of the Supreme Court that respondent had participated in constructing."That makes the Estate a Co-Defendant in the action.   It is a Plaintiff in the action, and is represented by Mr. Harlem, as well as the the decedent's children claiming that their father violated the contract to make a will together with his then attorney, Mr. Neroni.

Mr. Harlem continues to represent both the Estate and the children, and claims legal fees for such a representation, while in the cases of irreconcilable conflicts of interest like this one, normally attorneys forfeit legal fees.
You know how many judges reviewed the issue of the conflict of interest and did not find a conflict?
Let me count.
1/  Judge Elizabeth Garry of Norwich (now judge of Appellate Division 3rd Department);
2/  Judge Molly R. Fitzgerald of Binghamton, NY;
3/  Judge Carl F. Becker of Delhi, NY;
4/  Judge Kevin M. Dowd of Norwich, NY, and
the following appellate panels:
Disbarment panel:
5/ Judge Mercure (former acting Chief Judge of the 3rd Department);
6/ Judge Peters (current Chief Judge of the 3rd Department);
7/ Judge Spain;
8/ Judge Kavanagh;
9/ Judge McCarthy;

Panel who affirmed the partial summary judgment on liability upon which the order of disbarment was made without a hearing:

10/ Chief Judge Cardona (at that time);
Judge Peters (present Chief Judge);
11/ Judge Malone
12/ Judge Stein
13/  Judge Lahtinen

Recent sanctions decision which rejected the issue that Mr. Harlem and his law firm was disqualified and that the Estate had no standing

Judge Lahtinen
Judge Stein
Judge Spain
14/ Judge Egan

14 judges chose to consistently overlook the applicable law in order to allow for a retired judge and his son's frivolous lawsuit to proceed

Are these judges law school dropouts?
Yet, back to what happened at the June 23, 2014 hearing, and in view of that hearing it is interesting as to what will happen in the future of the Mokay saga.

At this time, Judge Dowd did not allow me to file any other motions in the Mokay action, including motion addressing the court's jurisdiction or validity of prior decisions based on new evidence, which are motions authorized by statute without leave of court.

I must make such motions only on an Order to Show Cause to Judge Dowd.

Judge Dowd has a history of ignoring my Orders to Show Cause.  He did that in a Supreme Court civil action where I was asking for an emergency relief, based on evidence that my client (not my husband) would suffer irreparable harm if at least a preliminary injunction is not granted.

Yet, since Judge Dowd was assigned to that case at the same time my husband sued him in a pro se federal action, my client had to suffer, and my application for an Order to Show Cause was simply ignored.

In other words, Judge Dowd expects me to pay $45.00 filing fees into court and have my show cause applications directing right into the garbage bin.  That is his concept of access to court for me and my clients, of course, after "searching his conscience" as he stated in his decision where he refused to step down from the Mokay case.

And of course, if Judge Dowd does sign an Order to Show Cause and allows the motion to proceed, since Judge Dowd disregards the law and instead regards his own reminiscences as evidence against my client and in favor of Mr. Harlem, Judge Dowd may (and, probably, will) sanction me once again for any motions that I may make to vacate the summary judgment because of Mr. Harlem's statements at the June 23, 2014 hearing.

But - Mr. Harlem did allow himself an important "slip of the tongue" in the hearing on June 23, 2014 that, in my view, does require a vacatur of the summary judgment of liability against my husband, and since I am effectively blocked from access to court on my client's and husband's behalf, I will air my opinion on what happened here, since what I raise here are issues of public concern, corruption in the court system.

When I cornered Mr. Harlem that he is enforcing a judgment of divorce while he did not comply with 22 NYCRR 1400 and thus is not entitled to one penny in legal fees (while legal fees is all that Mr. Harlem asks in actual and TREBLE damages in the action, under Judiciary Law 487), Richard Harlem claimed that he is "only" enforcing against my client a contract to make a will, not a judgment of divorce.

Yet, Mr. Harlem has so far obtained a partial summary judgment on liability against my client and husband for FRAUD UPON THE COURT - for defying a COURT ORDER, specifically, a judgment of divorce. 

Based on the partial summary judgment on liability under Judiciary Law 487, enforcing the judgment of divorce, my husband was disbarred WITHOUT A HEARING, after 37 years of practice and despite running a de facto free legal clinic in the county for the indigent, for years.

When it came out in court that Mr. Harlem did not comply with 22 NYCRR 1400 for purposes of legal fees in actions enforcing such JUDGMENTS, Mr. Harlem suddenly claims that his clients are "only" enforcing a contract to make a will as 3rd party beneficiaries?  Under Judiciary Law 487?  In a fraud upon the court action? 

A fraud upon the court action NECESSARILY relied upon the entire JUDGMENT OF DIVORCE, not upon a contract to make a will.

Now what?  Will Judge Dowd and all appellate court brush a would be motion to vacate because  my husband is just a "disgruntled disbarred attorney" who is below the law while Mr. Harlem is a son of a judge who is above the law?  No matter what he does?

When hearing that argument from Mr. Harlem, Judge Dowd should have instantly struck the summary judgment on liability against Mr. Neroni sua sponte, without waiting for my motions.

Yet, instead, Judge Dowd reminisced about his own internship in a District Attorney's office where he was drafting indictments, reprimanded me for not settling with Mr. Harlem and awarded to Mr. Harlem everything Mr. Harlem asked in his billing statement.


I guess, I should not even be wondering any more why judges do not follow laws.

It is clear to me from my own experience as an attorney in the Mokay and other cases that in New York there emerged a new body of law - a law for sons of judges (and other attorneys affiliated with judges) which defies and disregards any other law. 

Mere mortal attorneys and their clients are powerless against it.   Or is there a light at the end of this tunnel? 



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