"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, January 23, 2015

New York judges, rejoice, you may now engage in ex parte communication on the merits

On March 26, 2014 I reported on this blog the episode where:

(1) a judge (Christopher Cahill of the Ulster County Supreme Court) engaged in an ex parte conference in judge's chambers with an attorney (Delice Seligman of Kingston, NY);

(2) prohibited the other attorney of record (myself) to enter;

(3) after Delice Seligman left the chambers after approximately 10-15 minutes there, the judge called me for yet another ex parte conference;

(4) I asked the judge to recuse because of the ex parte conference that I, my client and my client's relative just witnessed (there were other witnesses in the waiting room, too);

(5) the judge recused, but

(6) the judge threatened to turn me into the disciplinary authorities for asking him to recuse because, in the judge's opinion "I am out of line".

After that

(1) I reported the judge to the NYS Commission for Judicial Conduct.  My complaint was supported by affidavits from two witnesses to events.

(2) I asked under a FOIL request for copies of video tapes from the floor of the courthouse in front of judge Cahill's chambers (by the way, the waiting room before Judge Cahill's chambers which would have been covered by that video is right in front the chambers of Chief Judge Karen Peters of the New York State Appellate Division 3rd Department).

FOIL request was denied because:

(1) no videos within the chambers were available and
(2) videos in front of the chambers were conveniently overwritten, even though I asked for the videos well within the 30-day retention period in accordance with the retention policy of the New York State Office of Court Administration that was announced to me in my previous similar FOIL requests.

In an interesting twist after the videos were conveniently destroyed, attorney Delice Seligman, in her submission to a court, under oath, confirmed the fact of the ex parte communication with Judge Cahill and stated that such conferences with that judge are routine and nothing out of the ordinary.

The rule is very clear:  "A judge shall not initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceedings..." with a few clearly enumerated exceptions.

1st exception - ex parte communications for scheduling or administrative purposes.  Judge Cahill did not explain that he was calling Delice Seligman into the judge's chambers to discuss "scheduling or administrative" issues, and Delice Seligman already disclosed that what she and the judge did engage in an ex parte conference and discussed what was allegedly (and quite incredibly) "beneficial to my client".  Apparenty, Delice Seligman undertook to discuss what is allegedly beneficial to my client with Judge Cahill behind closed doors - at least it is an admission that the communication was on the merits of the case that was squarely within the prohibition for ex parte communication, because it was off record, without my presence, and I have every reason in the world not to believe Delice Seligman - or Judge Cahill, for that matter.

2nd exception - advice of a disinterested person or expert on the law.  The exception does not apply.  Delice Seligman is not a "disinterested expert on the law".

3rd exception - consultation with court personnel.  Delice Seligman is not court personnel, she was attorney for a party in the pending proceedings.

4th exception - there was no consent from me "to confer separately on agreed upon matters", Judge Cahill did not even seek such consent, instead he unilaterally conferred with parties separately (and Delice Seligman claimed it was this judge's policy to do that, so he does it regularly - the public should beware) without seeking any consent from them and by clearly prohibiting attorneys from entering when he was engage in an ex parte conference with their opponents (like it happened to me);

5th exception - authority under the law for an ex parte communication. There was no authority under the law for an ex parte communication in a divorce action where a motion was pending to vacate the judgment of divorce pointing out multiple gross mistakes of the judge and of attorney Seligman.

Here is a snippet from the brochure of the New York State Bar Association for public use - advising the public what constitutes judicial misconduct:

An attorney in Ohio recently was punished by a 1-year suspension from practice for - surprise! - ex parte communications with judges in divorce actions.

Compare how a federal court in New York faulted a pregnant female attorney for an alleged ex parte communication with the court where all she was discussing was scheduling (would have fall under 2nd exception above) and her health (would have fallen under the 5th exception above, as health issues are covered by state and federal privacy laws and the attorney was clearly dismayed that the judge outed her doctor's recommendations to her opposing counsel).

If attorneys are disciplined for engaging in ex parte communications in violation of attorneys' rules of professional conduct, judges must be disciplined for violation of their rules of ethics, too, otherwise these rules of ethics are not worth the paper they are written on.

By the way, NYS Commission for Judicial Conduct does discipline judges for ex parte communications - of course, only judges of justice courts who are mostly not attorneys.  I wrote about this "selectiveness" of the Commission on the blog.

In 2013 NYS Commission for Judicial Conduct took off the bench a judge from our area, Judge Glenn George, for conduct that included ex parte communications, discussing the merits of the case with a prospective litigant.  I doubt that the rule against an ex parte communication is even applicable to PROSPECTIVE litigation, other than it will require the judge to step down from the case when it is filed, and yet Judge George was punished for engaging in an "ex parte" communication in a non-existing proceeding.   In my case, it was pending litigation, squarely within the rule prohibiting ex parte communications, Delice Seligman confirmed that the ex parte conference occurred, that it was a matter of policy for Judge Cahill to hold such ex parte conferences, and that the ex parte conference was on the merits of the case.

Yet, Judge George was punished and for Judge Cahill there was no "sufficient indication of judicial misconduct".

So, for all purposes, the NYS Commission for Judicial Conduct was presented irrefutable evidence that Judge Cahill violated 22 NYCRR 100.3(6), the rule prohibiting judges from initiating or engaging in ex parte communication in a pending action on the merits of the case and had to honestly do its job and initiate prosecution of Judge Cahill.

Instead, on January 15, 2015 NYS Commission of Judicial Conduct dismissed my complaint against Judge Cahill, having all of the evidence on file that IRREFUTABLY established that Judge Cahill did engage in an ex parte conference with the exclusion of me as the attorney of record at the time and threats of reporting me for confronting the judge because of the ex parte communication.

The dismissal came in a form letter that NYS Commission for Judicial Conduct usually sends to complainants.

Here is the response of the NYS Commission for Judicial Conduct regarding my complaint about Judge Cahill's ex parte communication and "mistakes" that no competent judge can make in good faith:

The letter dismissal describes only to my "correspondence" and not to affidavits of witnesses, pleadings and affirmation of Delice Seligman that, once again, established that Judge Cahill did engage in an ex parte communication with Seligman beyond any doubt.

Compare this letter of dismissal to the other letter of dismissal dated the same January 15, 2015, only of my complaint regarding Judges Coccoma, Mulvey and Becker (described in this blog here).

It is apparent that the letter dismissals are form letters and that the Commission, very possibly, did not even read my "correspondence" rather than "carefully considering" it, because had it "carefully considered" it and had it honestly been doing its job, 

I am tired of this mess.  I am tired that there is no recourse for judicial misconduct in the state of New York.  I am tired that judges are arrogantly breaking every rule in the book and remain unpunished.

As it was explained to me earlier by Judge Mae D'Agostino of the U.S. District Court for the Northern District of New York, when NYS Commission for Judicial Conduct dismisses a complaint, the complainant has no recourse and no standing to appeal or contest such a dismissal, no matter how outrageously wrong it appears to be.

Well, with one exception.  If there is no such "standing" in the court of law, there is certainly such "standing" in the court of public opinion and there is definitely is a "standing" - and an obligation - to report the behavior of both Judge Cahill, and attorney Seligman, and the NYS Commission for Judicial Conduct to the feds.

When a governmental body such as the NYS Commission for Judicial Conduct, being provided all evidence of misconduct of a judge, an ex parte communication under circumstances clearly suggesting a likelihood that the ex parte communication was for the purpose of fixing a lucrative case, and such governmental body dismisses the complaint because there was allegedly "insufficient indication of judicial misconduct", I have a reasonable belief that the NYS Commission for Judicial Conduct is participating in a collusion to steal honest services of a judge in a court case - and that is behavior reportable under 18 U.S. Code paragraph 4.  So, report it I will.  

Same as New York state authorities proved to be unable to control behavior of New York Assembly Speaker Sheldon Silver requiring the feds to step in (and they stepped in and currently Sheldon Silver is in federal custody on charges - surprise! - of fraud and theft of honest services of a public official), New York Commission for Judicial Conduct proves inability to control rampant judicial misconduct in this state, adamantly refusing to do its job even when it is provided with irrefutable evidence - like here - affidavits of witnesses and even a sworn confirmation by the attorney who participated in misconduct.

If NYS judiciary expects that sweeping their misconduct under the rug will help them to preserve their public image of integrity, they live with their collective heads in the sand.  People are not stupid, complaints are being made to the Commission not only by me, many people are communicating with me because of this blog and are reporting to me the same behavior of the Commission in tossing people's complaint about judicial misconduct no matter how well documented.  

This corruption of the concept of judicial intergrity and accountability must end.  And I am asking the federal criminal authorities to intervene and end it since no civil remedies are available.

Because - if there is no intervention - based on dismissal of my complaint against Judge Cahill - New York State Commission for Judicial Conduct just made legitimate ex parte communications and possible collusion behind closed doors between attorneys for one party and judges in the absence of opposing parties.  Welcome to the nightmare.


  1. Thank you for standing up for yourself and for what's right! I am sorry you had to go through this. As an Ulster Country resident I find this disturbing!

  2. Thank you! I find what is going on in New York courts disturbing, too. Yet, the attitude of New York judiciary is the "might is right" - since there is no accountability, they can do whatever they want. I believe, a State Constitutional Amendment is needed to abolish all kinds of judicial immunity, as a matter of the State Constitution and allow victims of judicial misconduct to sue judges for money damages. If misconduct is not intentional, judicial malpractice insurance can cover it, as it does for any other profession. If the misconduct was intentional, the judge will have to pay out of his own pocket - an easy and fair solution.