"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.

Friday, September 12, 2014

New York state law has no mechanisms for disqualification of disciplinary attorneys from investigating and prosecuting themselves

Time and again I myself and other people I talked with, come across a peculiar problem with reporting attorney misconduct in the state of New York, and that is reporting misconduct of attorneys who are either employed by the committees of professional conduct, or are members of such committees.

In other words, there is a problem in reporting and enforcing attorney discipline against attorneys who enforce attorney discipline against other attorneys.

Attorneys who represent attorney disciplinary committees, as well as attorneys who are members of such committees and constitute super-majorities of such committees in all 4 Appellate Divisions of the State of New York, are bound by the same rules of professional conduct as any other licensed attorney in New York.

Or, at least, they should be, but they obviously are not.

In my experience, when I found out that 18 attorney members of the Committee for Professional Conduct of the 3rd Department are engaged in fraudulent conduct, specifically, filed fraudulent disciplinary charges against me, and that is after I pointed out their mistake with documentary proof based on court records, and they continued their prosecution based on fraudulent charges, I had a right to report these attorneys for misconduct.

Yet, to report them where?

The only forum to report them to appeared to be THEIR OWN DISCIPLINARY COMMITTEE.

So, that's what I did.

In addition of suing the attorneys involved for fraud upon the court, I reported them to their own disciplinary committee, and asked to appoint a special investigator and prosecutor to verify my complaint against them.

What I received back astounded me.

It was a letter from Peter Torncello, then chief attorney of the Committee (since then Peter Torncello resigned amid investigation into his own misconduct on allegedly other grounds than fraud upon the court that I sued him for).

In that letter Peter Torncello notified me that I should direct my inquiries and complaints to Mr. Torncello's LITIGATION COUNSEL!!!

In other words, Peter Torncello, who I sued in his INDIVIDUAL capacity, for fraud upon the court, claimed that I cannot inquire about his misconduct with the only forum, the Committee for Professional Conduct of the Appellate Division 3rd Department, which covers all attorneys practicing within its jurisdiction, including Peter Torncello himself.

Moreover, Peter Torncello tossed charged against himself and his brethren and sisters in the Committee, and then turned around and complained to the 3rd Department Court that appointed him about my complaint regarding his misconduct to the Committee, which normally no attorney can do.

The Committee for Professional Conduct of the 3rd Department never investigated or prosecuted its own members for misconduct and fraud upon the court, never recused from such prosecutions and investigations - even though no prosecutor, very obviously, has a right to investigate or prosecute THEMSELVES.

Since I am "only" the complainant to the Professional Conduct Committee, I appear not to even have standing to make a motion to the Appellate Division 3rd Department to have a special investigator or prosecutor appointed to investigate and prosecute the prosecutors.

At this time, I have the very same problem with the 4th Department Attorney Grievance Committee who proceed with fraudulent charges filed by the 3rd Department Professional Conduct Committee and are involved in the same prosecutorial misconduct, and that refers both to attorneys who prosecute the case, and attorney members of the Committee who direct their actions.

I wonder if I have to, once again, turn in now attorneys of the 4th Department into their own Committee - obviously with the same results that they will toss my complaint laughing, because I cannot do anything to appeal their misbehavior or address it in any way other than ask the court to sanction them for frivolous conduct (which I did). 

Yet, attorney discipline is a proceeding separate, apart and independent of any court proceeding, and that remedy is obviously unavailable against the disciplinary prosecutors who, for all purposes, appear to be above the law in the state of New York and not subject to the very same attorney disciplinary rules that they are enforcing against other attorneys.

If one tries to sue these disciplinary prosecutors in federal courts (and I tried, on my husband's behalf), disciplinary prosecutors immediately claim  absolute prosecutorial immunity in state and federal courts from liability for any misconduct that they committed while carrying out their prosecutorial duties.

Yet, the U.S. Supreme Court only granted that absolute prosecutorial immunity on the understanding that there is attorney discipline available against the prosecutors (not that federal courts, bent to protect the government in any form and for any misconduct, care much about precedents that do not favor the government).

In case of disciplinary prosecutors in the state of New York, such discipline is, very obviously, not available, as no mechanisms to investigate or prosecute misconduct of the disciplinary prosecutors exists under New York law,  because NOBODY IS GRANTED STANDING to challenge disqualification of investigators or prosecutors, and thus nobody can effectively enforce that only qualified investigators and prosecutors investigate and prosecute disciplinary attorneys turned in for misconduct.  Nobody is given a right to challenge the disciplinary attorneys' practice of tossing complaints against themselves, a due process violation.

So, the disciplinary attorneys in New York are given a free rule to rid the public of legal services of any attorney they can target for prosecution, for whatever fraudulent and vile reasons, without any recourse for the public.

I have raised the issue in federal court, but, given the institutional bias agaisnt civil rights litigants as a whole, disbarred attorneys specifically, and I raised it on behalf of a disbarred attorney, and general bias of federal courts in favor of the government under the claims of "comity" and "federalism", federal courts rejected this idea.

Yet, stripping disciplinary prosecutors of their immunity at least until they have effective mechanisms of discipline installed against them in state law, seems as a logical thing to do, flowing directly from the the reasoning of the U.S. Supreme Court precedent on prosecutorial immunity, Imbler v. Pacthman.

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