"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.

Monday, January 12, 2015

Preserve your health at Mary Gasparini's CLE lectures on legal ethics

And I mean it.

See, Attorney Mary Gasparini, disciplinary prosecutor out of the Attorney Grievance Committee, Appellate Division 4th Department, stated under oath to that same court that her CLE lectures made during state-paid time were allegedly part of her prosecutorial duties.

Of course, this is not true, but during the brief period that I came to know Ms. Gasparini, I came to realize that such a trifle as the truth is not high on her priority list.

Mary Gasparini is the same attorney who advanced fraudulent claims against me since June of 2014 when the case got transferred to her from the 3rd Department, while it was plainly in the court record that Charge I Specification I and Charge IV were fraudulent and all other charges was evidence of unconstitutional retaliation against me by a judge whom I sued, and then he got on a vendetta trail and sanctioned me and turned me into the disciplinary committee.

Instead of sympathizing with me as a victim of unconstitutional judicial retaliation and misconduct, instead of reporting the judge's misconduct to the Judicial Conduct Commission, as was Mary Gasparini's obligation under the same rules that she is enforcing against others, Mary Gasparini ran with the fraudulent and unconstitutional charges from June of 2014 until January 12, 2015 and is continuing now to prosecute all of them but one (the one attempting to discipline me for NOT committing a crime of practicing law without a license on two occasions, the one that Mary Gasparini withdrew after she was sued and after it was granted). 

In the process of prosecution Mary Gasparini showed a spectacular lack of ability to read and comprehend what is written in the law and court records, and continued to prosecute fraudulent and frivolous claims and arguments with the court, thus being a shining example of legal ethics herself.

After the referee (unlawgully) granted Mary Gasparini's motion, she continued to beat the dead horse and ask the referee to admit evidence from her, even though we were attending a scheduling conference for a hearing that the referee refused to conduct, and the referee clearly stated that he will not hold the hearing because he granted the motion.

Mary Gasparini does not even know such elementary things as the time limits allowing people to answer Notices to Admit under Article 31 of the CPLR, 20 days plus 5 days if served by mail.

She served the Notice to Admit on me on December 23, 2014 by mail, which would give me the deadline to respond (if CPLR and discovery would apply) by January 17, 2015.

Yet, Mary Gasparini asked the referee to deem me as admitting everything in the Notice to Admit 5 days before the deadline, on January 12, 2015, and after the motion was granted and the referee refused to conduct any hearing whatsoever.

With such a spectacular show of competence Mary Gasparini is surely the best choice of lecturer to teach others about legal ethics and "difficult attorneys" (like me, I understand, attorneys who know the law, have trial experience, including experience in federal civil rights litigation and do not allow Mary Gasparini to walk all over me with her incompetent tweets).

I wonder if Mary Gasparini even tried any cases in the 4th Department or if she is used to have dealings with attorneys who, knowing about injustice of the court rules governing attorney disciplinary proceedings and misconduct that occurs in such proceedings, simply settle the case or admit whatever they are charged with.

It does not appear that she has ANY trial experience whatsoever.

An experienced trial attorney will not withdraw a charge which was part of the basis for a motion that was just granted, because such a withdrawal voids the grant of the motion.

An experienced trial attorney would not try to proceed arguing issues of discovery for a hearing after her motion that (in the opinion of the referee) precluded the hearing where evidence from that discovery is supposed to be admitted, it is simply unnecessary and looks like Mary Gasparini lacks any litigation experience or professional competence or both, no offense meant, but it is the truth.

After reading the list of Mary Gasparini's feats in legal ethics (as well as breaches of criminal law, fraud upon the court), the list that I tabled for your convenience below, any potential buyer of Mary Gasparini's CLE lectures would consider this as sound advice.

If it is your own money - skip it, don't waste your dime.  After all, you need to get something out of a CLE course for your practice.  CLE requirements exist for a reason.

If this is a course mandated and paid for by your employer - enjoy the complementary coffee and bagels, read a book on your tablets and never listen to Mary Gasparini's legal ethics lecture, because, if after reading this table and my other blogs about her, you do that, you will run a risk to die laughing.

Mary Gasparini’s initial position

Did Mary Gasparini change her position and why?

CPLR is not applicable to attorney disciplinary proceedings, is it?

That argument was not exactly made by Mary Gasparini, it was made by another beacon of legal ethics, Alyson Coan of Professional Conduct Committee of the 3rd Department, but Mary Gasparini, after the transfer of the case from the 3rd to the 4th Department, did not withdraw this argument and adopted it as her own

At the same time, Mary Gasparini first announced to me an “open file policy”, allowing me to look at “whatever they have”, and, when I came to her office, denied she ever told me that, denied me access to the file, and proceeded denying me access to my own file throughout the proceedings
Yes, she did.  As soon as Mary Gasparini realized that she faced an uphill battle to put together trial Exhibits, and especially that she had no procedural tool, same as I didn’t, to subpoena those records, simply because the court did not provide for such a tool, she immediately resorted to CPLR and served upon me, in proceedings where discovery is not allowed by court rules, during the pendency of a motion for a  summary judgment and at the very same time when the case was already transferred to a trial referee, thus discovery (if it was afforded at all) had to be complete, a “Notice to admit”.  A “Notice to Admit” is a  discovery device strictly belonging to CPLR.  It is used before the case is scheduled for trial and not after.  It is used only after the summary judgment is resolved, and when it is still pending, and it is not used AT ALL in attorney disciplinary proceedings, at any stage.  But – the CLE lecturer in attorney ethics Mary Gasparini apparently did not care.  She desperately needed that tool, and she applied it anyway, hoping for a favor rom the senile and incompetent referee.

Gasparini also showed complete innocence, so to say, as to knowledge of the section of the CPLR governing the deadline to reply to a “Notice to Admit” served by mail (which is how Gasparini served it on me on December 23, 2014).

Service of a discovery device under CPLR is 20 days + 5 days if served by regular mail (our case), bringing the deadline for me to respond (if CPLR applied to attorney disciplinary proceedings at all and to the stage of proceedings we were at at the time the “Notice to Admit” was served) to January 17, 2015.

Today, 5 days before the deadline for me to answer Mary Gasparini’s Notice to Admit, Mary Gasprini asked the referee to put all exhibits “into evidence” because I failed to answer her Notice to Admit.

And, what is even more interesting, Mary Gasparini asked the referee to do that LONG AFTER the referee told me, in her presence, that the referee already granted her motion (unlawfully), making her exhibits unnecessary, and making her request to admit anything into evidence after the motion on liability was already granted, completely inappropriate.

But – when did “inappropriate” stop a prosecutor?

An attorney owes the tribunal and the opponent to proceed in good faith and with due diligence
When Mary Gaspraini “inherited” my disciplinary Petition with two fraudulent charges included into it (and other charges unconstitutional), as far as I could judge from our conversation in early October of 2014 on the phone, Mary Gasparini did not read any of the Petition, any of the underlying court records and did not have a clue as to what is charged and what she is supposed to prosecute. 
That was 4 months (!) after the transfer of the case from the 3rd Department to Mary Gasparini’s Committee.  One would presume, that no matter how busy Mary Gasparini was with her CLE lectures on legal ethics, she would find at least some time for what she is paid or by the taxpayers.
Furthermore, Mary Gasparini fought tooth and claw to keep the fraudulent charges in, despite evidence in the record (court records!) showing that the charges were in fact fraudulent.
Mary Gasparini explained away her position to the court that she keeps the Petition the way it is, fraudulent charges and all, by pointing out to the court in a sworn statement that it is allegedly the court’s own rule that is to blame – that it is the court that PROHIBITS Mary Gasparini to amend the original Petition that originated in the disciplinary Committee of another Appellate Division and was transferred to her.

That results in a rule of legal ethics – you may not commit fraud upon the court UNLESS the court PROHIBITS you to withdraw a fraudulent statement of your predecessor and practically mandates you to commit the crime of fraud upon the court – then you can proceed with fraud upon the court at your heart’s desire

I wonder if Mary Gasparini will ever voice this rule at one of her CLE legal ethics lectures


As soon as Mary Gasparini was sued, personally, for fraud and fraud upon the court, and the announcement of that lawsuit appeared on my blog (which was part of the record of the proceedings, so Gasparini knew about it, and which Gasparini, judging by her actions, diligently read), Gasparini suddenly changed course.

Even though by the time she decided to change course the referee (unlawfully) granted all charges she was bringing, including the 2 absolutely fraudulent charges (and others “merely” unconstitutional), Mary Gasparini, without a motion to vacate that decision, “withdrew” Charge I Specification I which was already granted to her.

It appeared that no court rule that prohibited her from changing the transferred Petition prevented her from doing it.

Once again – I wonder whether Mary Gasparini will comment on this fine example of her behavior in any of her CLE lectures on attorney discipline and legal ethics
Access to the file
From the very moment when I was admitted to the bar in 2009 I was involved in representation of my husband in a disciplinary proceeding.   I kept asking the 3rd Department for access to my husband’s (and client’s) file (1) while he was investigated, but not yet prosecuted,  (2) while he was prosecuted,  (3) after he was disbarred and his file became public record under a statute, Judiciary Law 90(10) – with no avail, until I had to sue the 3rd Department Disciplinary Committee in federal court.  After I sued – and won against the Department’s on the issue that the issue of access to the file could go to trial, the 3rd Department (1) transferred my husband’s file (for some unknown reason merged with my disciplinary proceedings, 3 years after my husband’s disbarment) to the 4th Department (Mary Gasparini), and Mary Gasparini continued to block my access to his file.

Of course, I got a “sneak preview” of what may be the reason of why I was blocked from the Committee’s attorney Bruce Boivin, the Assistant New York State Attorney General who was extremely surprised that I even asked about some “archive” of records in the Committee and pretended he did not know what I was talking about.  I understand that there is no archive of records in the 3rd Department Committee at all, and when its attorneys claim to the court that there were allegedly “letters of caution”, “letters of admonition” etc. etc., existence of those letters, as well as existence of proof of service of any notices of charges, responses of attorneys, decisions of the Committee to discipline attorneys and letters themselves are simply non-existent, in the 3rd Department as well as in the 4th Department.

Which, of course, brings us back to the ethical duty of counsel (including EVEN prosecutors) of due diligence and “duty of candor to the tribunal” (in plain English “do not lie to the court”), but those duties, due to the spread of absolute prosecutorial immunity, is usually lost on the prosecutors.  They only prosecute others who are allegedly in violation of the law/ethical rules in our case.  They do not have to comply with the law/ethical rules themselves while prosecuting for violating of the law/ethical rules. 

Same was with my own file – I was blocked from accessing my file throughout the so-called investigation and prosecution

Then, the sun broke through (it tried) when Mary Gasparini promised to give me access to “everything in their file” in accordance to their “open file policy” – but then she clamped right back and denied me access to anything, despite her office’s “open file policy”.

Did Mary Gasparini change THAT attitude – that she will not give access to attorney’s own file while she herself is at the same time (1) trying to obtain discovery from that same attorney under the CPLR, (2) claiming to the court that CPLR does not apply when it is supposed to help the prosecuted attorney, and (3) prosecute the attorney knowing that she does not have a case and does not have proof in her file to meet her burden of proof

Of course not.

Not upon her life will Mary Gasparini release her grip when she is “winning”, even by fraud, even by unlawfully blocking my access to my own file to be able to prove that Mary Gasparini does not have a file at all, and does not have proof of any misconduct on my behalf, other than being the victim of unconstitutional judicial retaliation (which is not misconduct, is it?)
Reporting judicial misconduct

Mary Gasparini’s file/record/petition/underlying court files were STREWN with evidence of judicial misconduct.

A judge retaliating against an attorney after attorney sues judge.  Misconduct? Misconduct.  Did Mary Gasparini report it? No, she prosecuted the victim of that misconduct.

A referee reads two court orders telling him to do one thing (hold a hearing and report to the court) and does something completely different – grants the motion on liability to Mary Gasparini, which the referee is absolutely not authorized to do.

The attorney-victim (that would be me) points that out, but Mary Gasparini sees in it only the result – her SUCCESS, not whether this success was attained by (1) her fraud, (2) the referee’s misconduct.

Did Gasparini change THAT position?

Of course, not.

These rules, to report judicial misconduct, are written for lip service, to claim that we have “the rule of law” in New York state courts and its attorney disciplinary proceedings.

Yet, nobody “really” means to use them, and if anybody does, they end up like I did – prosecuted for being sanctioned by the very judge against whom I reported misconduct.

Recusal for bias

A prosecutor has a dual role – to try to bring wrongdoers to justice, but at the same time to see that actually justice is done and that the prosecutor does not hurt the prosecuted person if he or she is innocent of wrongdoing

That dual role is very tough to digest for an average prosecutor, and Mary Gasparini is no exception

If the prosecutor knows in her heart of hearts that she cannot be impartial, she must step down

Mary Gasparini continued with fraudulent claims against me, implicitly admitted that the claim was fraudulent, and outside of her jurisdiction when she hastily withdrew it AFTER the referee already granted it, but did not disqualify herself from the proceedings.

In fact, she did not disqualify herself even though I sued her – correctly – for fraud upon the court.

Go figure.
No, Mary Gasparini definitely did not change THAT position, she will fight tooth and claw until she makes sure that I do not have my license.

I believe that such phrases as “I hope she will sleep well at night” will be lost on her…

I wonder who is Mary Gasparini related to that she is so fearless in her unlawful actions, though.

But, that remains to be discovered, isn’t?

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