"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.

Sunday, January 11, 2015

The former NYS Court of Appeals judge Victoria Graffeo and her new law firm - (nearly) no diversity in the ranks?

I wrote on this blog how Governor Cuomo made a strategic move to nominate Judge Leslie Stein to the New York State Court of Appeals, likely in order to garner Judge Stein's favor in ruling on the DEC case that, if ruled against DEC, could have resulted in massive voiding of environmental convictions and adjudications against New York landowners and necessity to return possibly millions of dollars of improperly collected fines.

The nomination of Leslie Stein put an end to the hopes of Judge Victoria Graffeo whose term on the NYS Court of Appeals ended in 2014, to continue in her judgeship.

Recently, information was released to the press that the retired Judge Graffeo has joined a law firm Harris Beach PLLC.

I took a quick look at what the firm is.

Of course, I found in the law firm Judge Graffeo's former "confidential law clerk", John T. McManus (male, white).  Nothing like giving a former boss a part of your law firm - and gaining the prestige of having the former NYS Court of Appeals judge, with her connections and influence, as part of the team.

Of course, I found in the law firm a New York State Senator, Michael F. Nozzolio (male, white).

Of course I found in the law firm a number of former district attorneys.

Of course, I found in the law firm a person who is dealing with selection of judges specifically for appellate courts, which will raise interesting questions if Judge Graffeo decides to run for an appellate judgeship once again in the future.

Of course, I found in the law firm a hearing referee doing hearings for the New York State Commission for Judicial Conduct.

All in all, it appears to be a standard composition for a large and powerful law firm, same as I recently described in my analysis of the composition and its potential of another powerful law firm, Hiscock & Barclays, LLP of Albany, New York.

To me, employment of public officials in a law firm such as this raises red flags as to their impartiality and motivation in discharging their official duties, and whether the law firm hires these people in order to secure certain results from them in their official capacity, to promote their business and business of their - no doubt - prominent and wealthy clients.

Here is a summary table of attorneys in Harris Beach PLLS (I counted myself, maybe I made mistakes, but if I did, it was unintentional):

Senior Counsel 24
Of Counsel  7
Counsel  2
Members 115
Associate 62
Appellate Counsel  1
TOTAL: 211

In Harris Beach LLC attorneys who are co-owners of the law firm (including now former Judge Victoria Graffeo) are called "members", as I understand, and attorneys who are employees are called "associates, of counsel, counsel, appellate counsel".  I do not know the status of the "senior counsel".


Gender composition of associates:

Associates 62
Males 36 58.1%
Females 26 41.9%

Racial composition of associates (judging by the picture provided on the website of Harris Beach PLLC):


Total Associates 62
Caucasian (White) 54 87.1%
African American 4 6.5%
Middle Eastern 3 4.8%
Asian 1 1.6%

 There are 3 female minority associates, as far as I could count, in Harris Beach PLLC - one Asian and 2 African American.


Total members 115
Female 24 20.9%
Male 91 79.1%

Racial composition of members:

Total Members 115
Caucasian (White) 110 95.7%
Middle Eastern 2 1.7%
Hispanic 1 0.9%
African American 2 1.7%

There is only one minority (Hispanic) female member in Harris Beach PLLC.

One thing struck me though when I analyzed racial composition of attorneys in Harris Beach PLLC.


Senior Counsel 24

Females 10 41.7%
Males 14 58.3%

Whites  23 95.8%
Asian Pacific 1 4.2% female


There are 7 attorneys "of counsel", including NYS Senator Michael F. Nozzolio 

(compare with Hiscock & Barclays' "of counsel" NYS Senator Neil Breslin).

Total of counsel 7
Male 7 100%
Female 0 0%
White 7 100%


1 appellate counsel - Buzard, Vincent A., Male, White, with the following credentials posted on the website:

"Supreme Court and the Appellate Division; a referee for the New York State Judicial Conduct Commission hearing cases involving alleged judicial misconduct, chair of the New York State Bar Association committee to review candidates for the New York State Court of Appeals.  In 2006, Mr. Buzard was appointed by Chief Judge Judith S. Kaye to serve on the Special Commission on the Future of the New York State Courts and in 2007, he was appointed by her to chair the Seventh District Judicial Screening Commission which screens candidates for all courts in the district, served with Chief Judge Kaye on her Special Committee on the Establishment of Commercial Courts in the State of New York and was instrumental in the establishment of the Commercial Court in Rochester.

Tell me, who can EVER, for example, punish this law firm or any of its attorneys for frivolous conduct?  No matter what they do - and I am not saying they are doing anything wrong - but theoretically?

Such an armor of protection, isn't it?

Such a potential to influence judges by participation in "screening" of candidates for judges and being a referee to potentially punish errant judges - while at the very same time practicing in front of judges who know that this firm employs an attorney who can make or break the judge's career as a referee for the Commission of Judicial Conduct.

Please, don't tell me that judges do not take that into consideration when they rule, that they are so ethical, fearless and impartial that it is unlikely that an idea to give this firm what they want does not cross a judge's mind simply out of a sense of self-preservation.  We are all human, judges included.

Having as part of the staff a person who can make or break judges is a huge potential for influencing the court.

Advertising that potential to the public practically points out to the public this potential.

Now, this law firm practices in New York.

According to the U.S. Census information, only half of, let's say, Buffalo's population, is white.  Moreover, Buffalo Law School, year after year, is called the best law school for black students.

Yet, look at the "numbing numbers" of racial, as well as gender, composition among associates, members and other attorneys.

What kind of customer base does Harris Beach PLLC serve that its members are nearly 100% white (and with a male supermajority - 80%)? Their "of counsel" attorneys are 100% male and white?

While the firm deems it acceptable to hire more females (percentage-wise) to do the firm's legwork, for the lowly-associates' positions, the firm only has 95.7% of the firm's members, nearly all of them, are white, and only 1/5 are female.

What kind of prospect of advancement does this composition promises a newly graduated minority law student?

Possibly - none, other than to go into a District Attorney's office, then become a judge - and then, when the judicial term expires and in the event she is not re-elected - to be embraced by a law firm such as Harris Beach PLLC?

I know it is a private business.

I know they can make their own decisions who to hire and promote.

Those decisions are exactly the point.

And the point is that Judge Victoria Graffeo joined this mix, and thus  put a seal of her personal approval on this policy.

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