"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, October 31, 2014

Does a taxpayer-paid prosecutor have a right to appear at CLE seminars during business hours or is it a waste of public funds and attorney misconduct?

You know chameleons - those lizards who change color to blend with the environment for purposes of self-protection.

This is what prosecutors do in attorney disciplinary proceedings - they claim they are part of an executive branch to defeat constitutional challenges to the propriety of the proceeding and they claim they are part of judicial branch to protect themselves from disclosure of public records that may get them fired.

Normally, a prosecutor is a representative of an executive branch of the government.

In a valid court proceeding, a neutral prosecutor, an executive officer elected by the people, who is independent of the court, makes decisions whether to investigate or prosecute a case, investigates and prosecutes cases.

In attorney disciplinary proceedings, the disciplinary committee constitutes, as I already wrote on this blog, of unpaid "volunteers", attorneys in private practice, private competitors of the disciplined attorney.

The attorneys representing these unpaid volunteers are paid by the state. shows that the prosecutor that is  currently prosecuting my disciplinary case, Mary Gasparini, is paid as part of the judiciary, had a rate of pay in 2013 of $98,692.00 and was actually paid in 2013 $101,114.

This hefty payment came out of your pockets, New York taxpayers, so I, as a taxpayer, I became very interested when Ms. Gasparini asked a referee to adjourn a conference date because Ms. Gasparini was scheduled on the proposed date of the conference to speak at a CLE (continued legal education) seminar.

As far as I know, public speeches at privately held seminars for which attorneys pay through their noses, are not part of "duties" of prosecutors, so I filed a Freedom of Information Request with the disciplinary Committee seeking timesheets of Ms. Gasparini on the day of a prior CLE seminar where she "spoke".  I was interested how can a public prosecutor appear at such seminars on her state-paid time.

Actually, I was very interested in those time-sheets of Mary Gasparini because two of the prior prosecutors of the case, Steven D. Zayas and Peter Torncello, "resigned amid investigation" into allegedly filing false time-sheets.

So, I filed a FOIL request:

I received two answers as to Mary Gasparini's participation in the CLE's on taxpayer-paid time.

My first answer was an irate "Second Reply Affirmation" claiming that I am trying to "thwart" the disciplinary proceeding any way I can.

I guess, raising constitutional issues, including obvious issues of disqualification of a referee, in a timely filed motion to vacate, renew and reargue and based on documentary evidence and proper legal authorities is considered "thwarting" disciplinary proceedings.  So much for a neutral and impartial prosecutor.

In her "Second Reply Affirmation", under oath, Mary Gasparini:

(1) acknowledged that she did ask the referee (whom she called a "judge") for an adjournment because of her appearance to speak at a CLE seminar; 

(2) claimed (without supporting documents) that she is not compensated for speaking at the CLE seminars; and 

(3) claimed that speaking at CLE seminars (during business hours as a prosecutor and while obviously delaying proceedings that she is prosecuting) is somehow part of Ms. Gasparini's "duty".

I cannot verify truthfulness of Mary Gasparini's first statement that she is not compensated for speaking at the CLE seminars, but she is, in fact, compensated, by the taxpayers, for speaking at CLE seminars while doing nothing as to her direct duty of prosecuting cases.

Also, while Ms. Gasparini's statement is unverifiable, or, at least, she has failed to provide documents from the CLE provider confirming that she is not being compensated for her "speaking" at CLE seminars, copies of recordings from that seminar, including Ms. Gasparini's speech, are being sold as online access and as CDs.  I wonder if Ms. Gasparini is not compensated for sales of those either.

My second answer was a response from Ms. Gasparini's boss, attorney Gregory J. Huether.

Mr. Heuther claimed that the Committee is an "auxiliary of the court", therefore, it is part of the judiciary and cannot be reached by FOIL.

In fact, when denying my FOIL request about policies, time-sheets and paychecks, Mr. Huether, a seasoned attorney, had to know he is violating the FOIL law and the policy New York State Court Administration, distinguishing between "administrative" records (reachable by FOIL) and court records (not reachable by FOIL, but reachable under Judiciary Law 255).

I guess, even when trying to prosecute an attorney for allegedly frivolous conduct, the disciplinary prosecutors do not feel beneath them to engage in frivolous conduct themselves - when it suits to protect their own personal interests and careers.

Time-sheets of a public employee, whether that is an employee of a court or of an executive agency, are administrative records reachable by FOIL.

When prosecutors try to pretend that they are not part of the court when I challenge constitutionality of disciplinary proceedings under the "judge-advocate rule" and that they are part of the court when they want to protect themselves by stonewalling my access to public records, their own time-sheets that can potentially lead to their "resignation", as it did with Mr. Zayas and Mr. Torncello, that is called prosecutorial misconduct.

Yet, there is no hope that disciplinary prosecutors will at any time be disciplined for that misconduct, because who is going to discipline them - themselves or the court that they are "the auxiliary" of?

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