"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 26, 2015

Will attorneys Richard Harlem, Eric Jervis and James Hartmann be disbarred for representation of clients with irreconcilable conflict of interest for years?

In the summer of 2007 a retired judge Robert Harlem and his son Richard Harlem have brought against my husband a case Mokay v. Mokay.

The case is still pending and a jury trial has been scheduled on that case on the issue of damages for April, 2015.

A partial summary judgment on liability was entered in 2008.

On January 22, 2015 the Appellate Division 3rd Department made a finding that three people participated in the alleged collusion:  Connie Mokay, Mr. Neroni and his deceased client.

Below is the caption of the case Mokay v. Mokay, pending in Delaware County Supreme Court since 2007:

The caption clearly shows that "the trio" who allegedly colluded to defraud the decedent's children are distributed on both sides of the caption.

One person out of the "trio", the decedent Andrew Mokay (through his Estate) is one of the Plaintiffs in the Mokay action.

Two other persons from what the appellate court called "a trio" are Mr. Neroni and Connie Mokay.

No fraud or fraud upon the court was proven against Mr. Neroni since there is no proof on record that the deeds were ever delivered to Connie Mokay.  If deeds were never delivered, title never passed, and Mr. Neroni could not possibly be blamed for any fraud or fraud upon the court.  A fuller legal analysis of what is wrong about the liability summary judgment can be found here.

If the "trio", as the appellate court called the decedent Andrew Mokay, Connie Mokay and Frederick J. Neroni colluded to defraud Andrew Mokay's children out of their rightful inheritance in the future (please, mind that there is no cause of action in New York for interference with a right for prospective inheritance, no matter how it is re-hashed), that trio should all be situated on the same side of the caption, as defendants in the Mokay action, sued by Andrew Mokay's children.

And here we come to the ultimate problem with this case.

The only damages claimed in this case are attorney's fees of the Plaintiffs' attorneys, the retired judge Robert Harlem (now deceased), the judge's son Richard Harlem, their law partner Eric Jervis, all of Oneonta, NY, their law firms, and their trial counsel James Hartmann of Delhi, NY.

Yet, these attorneys positioned in this action the Estate of Andrew Mokay as a plaintiff while it is a proper defendant, as the Appellate Division 3rd Department just implied by putting Andrew Mokay together with the defendants Connie Mokay and Frederick J. Neroni and "finding" that they are part of the trio who entered into the scheme to defraud...

The caption shows that the decedent Andrew Mokay, through his Estate, sues two of his alleged co-conspirators in committing fraud upon Andrew Mokay's children - an absurd situation.

What exactly is the decedent (Estate) Andrew Mokay is suing Mr. Neroni for where the court clearly said the decedent is Mr. Neroni's co-conspirator?  The only reasoning for lumping together the decedent and the Plaintiffs is because Richard Harlem, his father and their law firm started to represent the Estate EARLIER (in the Surrogate's Court, in the related probate proceeding, where they used - surprise! - Frederick J. Neroni as a witness on the exact same will that they claimed was not valid in the Mokay action against Frederick J. Neroni in the Supreme Court).

Since Richard Harlem and Co.  started to represent the Estate (the decedent, one of the "trio") earlier, they COULD NOT, as part of attorney disciplinary rules against irreconcilable conflicts of interest, represent decedent's children suing for fraud - because if they are suing two out of the "trio", the only reason why they are not suing their father's Estate is because their own attorneys represent their father's Estate and OPENLY representing plaintiffs and a defendant in the same action would have been too much even for Robert Harlem and his son.

So, instead, Robert and Richard Harlem included the decedent Andrew Mokay as a Plaintiff in the Mokay action (through an amendment, not initially - after fighting tooth and claw that the children's case has nothing to do with the Estate's case and even appealing a decision against putting the title into the two properties into the estate - appeal was by Richard Harlem on behalf of the children against his own client the Estate), refused to provide a proper Bill of Particulars, refused to provide proper discovery (all judges obliged to block discovery), Richard Harlem went so far as to argue to Judge Becker that he does not want to "educate me" before the trial on damages and that's why he did not provide me with a legal theory of prosecution on behalf of the Estate - that was in spring of 2012.

On June 23, 2014 I made an argument to the currently presiding Judge Dowd that Richard Harlem is not entitled to any attorney's fees because because he never complied with court rules pertaining to legal fees in such an enforcement action.

 This is what Richard Harlem responded to that:

 Please, note that Richard Harlem claims that "these folks are third-party beneficiaries under the events that occurred", and at the same time claims that "there was an effort made previously to suggest that this was a matrimonial action", while Richard Harlem "believe[d] that was rejected by not only the trial Court, but the Appellate Division as well".

So, issue # 1.  On June 23, 2013, 6 years into the litigation in Mokay v. Mokay, 5 years after obtaining a judgment on behalf of children of the decedent Andrew Mokay and on behalf of the decedent himself against Mr. Neroni, Richard Harlem pretends to the court that he only represents the children "under the events that occurred" and not the decedent?

And why is Richard Harlem so murky about "the events that occurred"?  Is it because "the events that occurred" is an ORAL stipulation incorporated into a judgment of divorce that Richard Harlem is enforcing in Mokay v. Mokay on behalf of children - that had to be enforced against their own decedent father, once again, putting their father below on the caption, as a defendant, and eliminating Richard Harlem's right to represent the children because he started to represent the Estate earlier in a related action?

As to the allegations that the "trial court" already decided whether what Mr. Harlem is enforcing in Mokay v. Mokay is or is not a matrimonial action - it is actually an outstanding issue, a mixed issue of fact and law that is FOR THE JURY to decide in April of 2015.

There was no trial in this case so far - there was only a partial summary judgment on liability.

And, the Appellate Division in 2009 clearly indicated, by the way, that what Mr. Harlem was enforcing in Mokay was a "stipulation" out of the divorce action of decedent Andrew Mokay.

There were two parties to the stipulation - the decedent Andrew Mokay and his wife, the mother of the very adult plaintiffs in Mokay v. Mokay.

The decedent Andrew Mokay, as found by the Appellate court in 2015, allegedly entered into an agreement with defendants Connie Mokay and Frederick J. Neroni to breach that agreement and was part of the "trio".

Mr. Harlem argued to the court on June 23, 2014 that "these folks" (his clients in the Mokay action) are "third party beneficiaries" "under the events that occurred" - no exception:

 This is, once again, the caption of this case showing who exactly Mr. Harlem represents and highlighting in yellow the "trio" of people who, according to the most recent Appellate decision, colluded in this case to breach the contract allegedly arising out of the divorce action between the decedent Andrew Mokay (Estate) and his former spouse:

I wonder if Mr. Harlem remembers whom he represents in the Mokay action, after all these years.

I also wonder if, in Mr. Harlem's learned opinion, the decedent Andrew Mokay whose Estate Mr. Harlem represents in the Mokay action - and represented in the application for attorney fees that was argued on June 23, 2014 - was also a "third party beneficiary" under his own stipulation with his wife because that's what follows from Mr. Harlem's claim on June 23, 2014:

  Mr. Harlem's claim begs the question whether Mr. Harlem understands what a third party beneficiary is - and whether he understands that a third party beneficiary cannot be a party to an agreement.

It is interesting to mention that while I consistently claimed throughout my representation of my husband in this action that started in 2009 that Mr. Harlem is representing (1) third party beneficiaries arguing the breach of contract and at the same time (2) the person AGAINST WHOM the breach of contract must be claimed - the Estate of their father, which is an irreconcilable and disqualifying conflict of interest - a beginner immigrant female attorney simply may not be right (in the institutional eye of New York judiciary) against a venerable law firm of a retired judge and his son. 

Of course, such a point of view has nothing to do with the law, of course, it results in blunders as stupid as Mr. Harlem's claim that he represents "folks" suing as "third party beneficiaries" - which implies a breach of contract - which implies a lawsuit of the 3rd party beneficiaries (injured by the breach) against the breaching party to the contract - the decedent Andrew Mokay - co-Plaintiff in the Mokay litigation - Richard Harlem's client.

That absurd situation, allowed by multiple judges and courts to proceed, can be explained only by this reasoning (that has nothing to do with the law):

  1. A retired judge Robert Harlem could not be wrong;
  2. A judge's son Richard Harlem could not be wrong (especially that Richard Harlem is a long-time landlord of the Oneonta office of New York Senator James Seward - verified through a FOIL request to the New York Legislature - Senator Seward even "sponsored" a bill mourning the passing of his landlord's father, without indicating the conflict, and no doubt used public money for this "sponsorship";  see also documents in my Blanding saga post containing documents authored by the NYS Attorney General's office showing just how honorable Senator Steward's landlord's father was);

  1.  Anybody who this "duo" represents or any law partners or employees of the above "duo" cannot be wrong;
  2. What the duo wants the duo gets.  Especially against the Neronis. 

The retired judge Robert Harlem died in 2012. 

Richard Harlem continued to claim him as a live partner on his letterhead for months after his death.  Apparently, it was false advertising, but who cared. 

Apparently, it was inappropriate to drum up business by claims that a law partner of a firm held a position of a judge, but again, who cares. 

Recently a sitting judge of Southampton Town Court, Suffolk County, NY, Judge Edward D. Burke, Sr, was censured by the State of New York Commission for Judicial Conduct for advertising his judicial position on the website of his law firm - and it should be (in my humble opinion) no different with retired judges. 

Retired judges should not be allowed to drum up business by creating an appearance through such advertising that they can get preferential treatment from the judicial system because of their status as retired judges.

Robert Harlem and Richard Harlem did that throughout Robert Harlem's retirement and Richard Harlem did that long after his father's death - with no discipline whatsoever.

Moreover, Robert and Richard Harlem were allowed to get away with violation of clear and unambiguous rules of attorney conduct that should have resulted in their disbarment long time ago - but did not.  Why? I already wrote on this blog that the law firm Hiscock & Barclay, where John Casey, member of the 3rd Department attorney disciplinary committee, was a member, accepted Richard and Robert Harlem as a paying client when Mr. Neroni

(1) sued Richard and Robert Harlem for fraud upon the court in the Mokay action;
(2) turned them in, several times from 2007 to 2011 inclusive, into the attorney disciplinary committee for their shenanigans, as described in my Mokay saga blog, Blanding saga blogpost, and elsewhere on this blog.

In other words, there is an appearance that, when John Casey's law firm accepted Robert and Richard Harlem as paying clients instead of investigating them in accordance with Mr. Neroni's complaints to the disciplinary committee, and when John Casey instead prosecuted and brought Mr. Neroni to disbarment based on the frivolous Mokay action that should have resulted in disbarment of Richard Harlem and Robert Harlem - John Casey sold his prosecutorial discretion to Richard Harlem and Robert Harlem.

That's why instead of disbarring Richard Harlem, Robert Harlem, Eric Jervis and James Hartmann - the four attorneys who are working on the Mokay case, the state of New York chose to disbar without a hearing Mr. Neroni - for actually asking to disbar a former judge and his son.

To tell me that New York State has some kind of a rule of law after this is simply laughable.

Yet, an interesting question arises after the decision of the Appellate Division regarding the "trio".  Will Richard Harlem, Eric Jervis and James Hartmann be disbarred without a hearing (on collateral estoppel grounds, same as Mr. Neroni) now that the appellate court clearly ruled, and it is "the law of the case", that the decedent Andrew Mokay was part of the colluding "trio" - from which it must follow that the decedent Andrew Mokay (his Estate) should have been joined, if at all, as a defendant in this action, and not as a plaintiff, as Richard Harlem did to collect uncollectable attorney fees as the only damages in the Mokay litigation?

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