Jailhouse lawyers and the hypocrisy of attorney licensing as a consumer protection technique

The State of New York punishes practice of law by individuals who are not licensed attorneys as a felony since 2013 and has been punishing it as a misdemeanor for years prior.

Licensing of attorneys is declared to be done by the government for protection of the public.

Yet, the U.S. Supreme Court, as far back as in 1969, and that is 46 years ago, has struck down state regulation punishing a person for providing legal assistance to other prisoners.

The Supreme Court has stated in Johnson v. Avery, 393 U.S. 483 (1969) the following:

The above U.S. Supreme Court case should be read broadly to ensure the intended effect of the 1st, 5th and 14th Amendment to the U.S. Constitution, to ensure constitutionally guaranteed true access to court for poor and poorly educated litigants vindicating their constitutional rights.

When read broadly, we have a U.S. Supreme Court case, a mandatory precedent for the states, that provides that in the absence of "some provision" by the states for a "reasonable alternative" to assist "illiterate or poorly educated" individuals to prepare legal documents pertaining to their fundamental constitutional rights, the state may not validly enforce a regulation which absolutely bars provision of legal services to such indigent litigants by non-attorneys.

Yet, we have not only inmates who continue to struggle, without legal representation, and without funds to pay to prepare legal documents for post-conviction relief, but we also have criminal defendants who, according to the State of the Judiciary 2015 address in New York, are habitually denied counsel at arraignment, or provided substandard representation by public defenders carrying unmanageable case loads.

We also have people being evicted, losing custody of their children, being foreclosed on their homes, being sued for consumer debt, and having no access to a lawyer because these litigants are poor.

The only thing that bars such litigants from representation in court by a knowledgeable, but unlicensed representative, for free or for a reduced cost, is criminal statutes for unauthorized practice of law, statutes that should be held unconstitutional where the state does not provide a "reasonable alternative" to a private attorney to assist the illiterate, poorly educated and poor litigants in their needs.

The State of New York does not have such a reasonable alternative.

Therefore, attorney licensing in New York, declared to be in place to protect the consumers, does not protect the consumers, is in fact hurting the consumers, is unconstitutional as blocking poor litigants' access to courts and preventing them to have trusted and knowledgeable, if not licensed, court representatives of their own choice.  

Such attorney licensing system clearly exist only as an anti-competitive measure to protect the market and high prices that the majority of the public cannot afford, for politically connected attorneys.  

And, therefore, attorney licensing should be abolished as not providing the declared benefit to the consumers and  hurting the consumers.  

Another recording of a conference showing another cooked transcript - and exposing Mary Gasparini's lies and Referee Sirkin's incompetence

My disciplinary prosecutor Mary Gasparini submitted to the Referee a "Proposed Referee's Report" where she falsely made claims that the January 12, 2015 "proceeding" was a "hearing" that was properly noticed to me and where I testified - and attached a transcript with false statements of the stenographer to that effect.

At the same time Gasparini filed criminal charges against me because an audio recording of the January 12, 2015 conference was placed on the Internet showing that the appearance on January 12, 2015 was not a hearing, and I was not called to testify, was not sworn in and did not actually testify, nor does the recording show that I made any stipulations or waivers before the conference of January 12, 2015 began, as the transcript claims I did.

Mary Gasparini also made claims in her "Proposed Referee Report" that on October 23, 2014 there was allegedly a pretrial "hearing".

You be the judge as to whether the October 23, 2014 was a "hearing" or a conference - as Referee Sirkin said himself, and whether any adjourned date from October 23, 2014 was, similarly, a scheduling conference.

The stenographer did not record a major portion of the October 23, 2014 conference, but I do have an audio recording of that conference, and I do have a transcription of that audio file, see below.

Compare how "complete" is the transcript of the October 23, 2014 hearing.

Note that the Referee clearly states in answer to my direct question that what will be happening on the adjourned date is NOT a hearing.

Note that the Referee claims that motions are pending in front of him, which never happens in attorney disciplinary proceedings, referees do not have authority to review and decide motions, that would be an unlawful usurpation of non-delegable authority of an appellate judge - elected to the New York State Supreme court and Appointed by the Governor to the Appellate Division.

Referee Sirkin, a retired Wayne County judge, has no right of serving as a justice of the Appellate Division, even though he undertook to decide motions in the Appellate Division, as the recording clearly demonstrates.

So, attorney Mary Gasparini has urged the Referee to file false report, based on falsified transcript of the January 12, 2015 scheduling conference which, as the recording of the previous pretrial conference of October 23, 2015 shows, was never meant to be a hearing, and, as the recording of the January 12, 2015 conference shows, was actually not a hearing (ordered by the court that the referee should schedule and conduct, but never scheduled or conducted, in defiance of the court order).

Moreover, Mary Gasparini filed criminal charges against me because information about her own and referee's misconduct, as well as an audio recording of the January 12, 2015 conference proving that the transcript of that conference was falsified appeared on the Internet.

Of course, now, when the audio recording of the October 23, 2015 conference has been placed on the Internet, there is even more proof of Gasparini's misconduct, as she attended that conference and clearly heard both my question to the Referee whether the next appearance (that happened on January 12, 2015) is going to be a hearing and the Referee's answer "no".

Conduct of attorney Mary Gasparini in the use of false transcripts and urging the referee to use such false transcripts, and filing criminal charges against me, Gasparini's opponent in litigation who exposed her misconduct, is clearly attorney misconduct warranting disbarment.

Yet, I doubt she will ever be investigated or disciplined for that conduct.

And for that reason, I believe, it is time to call in the feds and make a criminal complaint against Gasparini and the crew.  Maybe, Gasparini will enjoy the company of Sheldon Silver, one never knows.

Gasparini's actions, in my legal opinion, clearly falls within the definition of theft of honest services of a public officials, mail and wire fraud.

The extraordinary story of how an attorney in New York is persecuted for taking a stand against judicial misconduct continues.

Stay tuned.

COMPARISON OF THE AUDIO RECORDING AND THE TRANSCRIPT OF WHAT OCCURRED DURING THE SCHEDULING CONFERENCE ON OCTOBER 23, 2014

Audio Recording	Transcript
General conversation between Stephen R. Sirkin and attorneys Mary Gasparini & Gregory Huether who arrived there earlier than I did (I came on time)	Here and further below until the transcript starts - not reflected in the transcript.
REFEREE SIRKIN:  Good morning, folks, good morning.
TATIANA NERONI: Good morning
REFEREE SIRKIN:  Good morning, counsel and counsel. It’s been a slight change of plans.  Uh… The original was in the nature of a kind of a pre-trial conference to see where we were going, that kind of stuff, and to set dates. I was notified by the Appellate Division … I don’t remember exactly when  … I think it was a few days ago, that the Respondent has filed a motion in the Appellate Division which can only be heard by the Appellate Division, and I’ve got a call from the Appellate Division telling me that… kind of not to do much until the Appellate Division has reached the decision on Respondent’s motion. And I think he gave me kind of a safe date, but I’m not sure I wrote it down properly.  I have November 20th.  Does this ring a bell to anybody when the Appellate Division hands down decisions? It could be a few day before November 20th.
GREGORY HUETHER:  There was an Appellate Division day last week where the court hears matters.  The next one will be in December, meaning the time when all court members will be in Rochester all sitting…
REFEREE SIRKIN:   Yes.
GREGORY HUETHER:  …they may review some motions referred to them and make some decisions…
MARY GASPARINI:  November 20th is the decision release date (repeats distinctly and loudly) November 20th is the decision release date
REFEREE SIRKIN:   Ahh…
TATIANA NERONI:  The return date, your Honor, is October 28th.
REFEREE SIRKIN:  October 28?
TATIANA NERONI:  Yes.
MARY GASPARINI:  It’s the return date on the motion.
TATIANA NERONI:  Yes.
REFEREE SIRKIN: It’s the return date on the motion, but then they will have to decide the motion.
TATIANA NERONI: Yes.
REFEREE SIRKIN: I think you’re entitled to more time.
MARY GASPARINI:  In this matter? You mean…
REFEREE SIRKIN:  Yeah… Yes, for example, pending before me is the motion by the Grievance Committee and the cross-motion by Respondent, and there is no point in deciding and delivering a written decision to that motion unless the Appellate Division reaches a decision on the most recent motion.
MARY GASPARINI:  Okay.
REFEREE SIRKIN:  That’s sort of what I was told.
MARY GASPARINI: Okay.  So, the November 20th date, that’s a Friday, your Honor?
REFEREE SIRKIN:  I’m not sure it’s the right day…
MARY GASPARINI:  That was the decision release date.
REFEREE SIRKIN:  Decision release date, November 20th?
MARY GASPARINI:  And it is likely what that date is for, the date the Appellate Division…
REFEREE SIRKIN:  Okay, that’s the decision release date, it should be a few days after that.
MARY GASPARINI:  Our next…
REFEREE SIRKIN:  Will be later.  Yes, there is no point having it on the 20th…
MARY GASPARINI: And they don’t release decisions until 3 o’clock.
REFEREE SIRKIN:  Okay.
TATIANA NERONI:  Your Honor, I must then notify your Honor that I have a prior family commitment, because I have a Thanksgiving family vacation planned since July, and since July we bought tickets, I’ll be outside of the State of New York from November 17th to December 4th.  And that involves my minor son, and I promised him since July, and I cannot change that.  I request…
REFEREE SIRKIN:  You will be back here when, counsel?
TATIANA NERONI: I will be here on December 4th.
REFEREE SIRKIN:  December 4th?
TATIANA NERONI: Yes.
REFEREE SIRKIN: Of course, it doesn’t make much difference.  I’m not going to interrupt counsel’s vacation time.
MARY GASPARINI: I wouldn’t expect you to, your Honor.
REFEREE SIRKIN:  Is December 4th okay, or are you coming back?
TATIANA NERONI:  It’s… I am coming back very late on December 3rd, and December 4th will be a hardship for me to come here, because there could be flight delays, I don’t know how it is…
REFEREE SIRKIN:  Is December 5th okay?
TATIANA NERONI:  5th is fine.
MARY GASPARINI:  Your Honor, I respectfully request actually the following… the following week.  During that week that Ms. Neroni is coming back from her vacation, I am scheduled to speak at two CLE’s we are having a Committee meeting that week.  So that first week of December is also difficult  for …
REFEREE SIRKIN: I would accommodate both people, both counsel.  How about Monday, December 8?
TATIANA NERONI:  That’s for the actual hearing, your Honor, or …?
REFEREE SIRKIN:  No
TATIANA NERONI:  …conference?
REFEREE SIRKIN:  No.  The way this will work is, depending on what my decision says, sort of that handing my decision on the motion and cross-motion… ahh… and from that decision, if necessary, we’ll set a hearing date and/or, if necessary, a mitigation date, depending.
MARY GASPARINI:  Okay.
REFEREE SIRKIN:  …on how I rule on the motion.
MARY GASPARINI:  Okay
REFEREE SIRKIN:  … and cross-motion.  Let’s do it on December 8.  Okay?
STENOGRAPHER:  Should I be here?
REFEREE SIRKIN:  Yes, Sir, you should.  Yes.  Please. That’s Monday, December 8th, Syracuse.
TATIANA NERONI: 9 o’clock, your Honor?
REFEREE SIRKIN:  I’m sorry?
TATIANA NERONI: 9 o’clock?
REFEREE SIRKIN:  Yes, let’s do it at 9, this way we won’t be so tired…  It won’t be long anyway on December 8th.
TATIANA NERONI: The only thing is, can I ask it to be a little bit later I live in Delhi, NY, I had to leave at about 5:30 to…
REFEREE SIRKIN:  I had to leave at… I don’t know where Delhi is from here… I just don’t know, but I live probably … not two hours from here, but close.
TATIANA NERONI:  Ok.
REFEREE SIRKIN:  So it takes me a while to…
TATIANA NERONI: So it’s 9 o’clock?
REFEREE SIRKIN:  Yes, let’s do it at 9 o’clock.  That way you’ll be home sooner.  But basically then on the 8th I’ll be handing down my decision and setting what, if any, hearings are necessary.
MARY GASPARINI:  Ok.
REFEREE SIRKIN:  Okay? Assuming the Appellate Division… Assuming that the case is still pending as a result of Respondent’s motion.
MARY GASPARINI:  And… if…
REFEREE SIRKIN:  I can’t predict.
MARY GASPARINI:  If the Appellate Division has not rendered a decision in response to Ms. Neroni’s motion, but, say, by the Friday before that …
STENOGRAPHER (whispering) :  do you have a card?
TATIANA NERONI (whispering): no I don’t
MARY GASPARINI: … by Friday the 5th?
REFEREE SIRKIN:  They will.  If they are not going to, there is no sense in proceeding, because of the motions directly in the Appellate Division… And if Respondent prevails…
MARY GASPARINI:  I am done…
REFEREE SIRKIN:  I am done anyway.
STENOGRAPHER:  Thanks, do you want a copy of the transcript?
TATIANA NERONI:  Uh… Probably, not.
STENOGRAPHER:  Ok.
TATIANA NERONI: Not right now, thank you.
MARY GASPARINI: Would you like to put any of that on the record, your Honor?
REFEREE SIRKIN:  I am sorry?
MARY GASPARINI:  Would you like to put any of that on the record as far as our…
REFEREE SIRKIN:  Wasn’t it on the record?
STENOGRAPHER: What you just said?  No.
REFEREE SIRKIN:  Oh, I want it on the record.  Absolutely, absolutely, I wasn’t paying attention. What we are doing here today is… that was… set dates for pre-trials, trials, hearings.  However, recently the Appellate Division the Respondent has filed a motion in the Appellate Division and that I really can’t proceed until they rule on Respondent’s motion. And they assumed that … apparently the decision date is November 20th, and I understand both counsel have various and sundry commitments and I am certainly willing to respect, and I’ll set a date for the next appearance and I think it’s December 9th, was it?  8th?	The record starts.
MARY GASPARINI:  Monday, December 8th.
REFEREE SIRKIN:  Monday, December 8th.  And depending on how the Appellate Division rules on Respondent’s motion I’ll have my decision then on the Grievance Committee’s motion and Respondent’s cross-motion, and depending on how I rule will depend on future proceedings whether there be no future proceedings, or a hearing, or a mitigation hearing.  If requested.  Okay?
MARY GASPARINI:  Thank you, your Honor.
REFEREE SIRKIN:  Thank you, folks. Be well.  Be safe out there.
TATIANA NERONI: Thank you.

New York State of the Judiciary 2015 - the disaster of the criminal "Gideon" unveiled

At the NY State of the Judiciary 2015 address the Chief Judge of the NYS Court of Appeals Jonathan Lippman made a flowery speech that New York is on the way to implement constitutional rights of criminal defendants to counsel established long time ago by the U.S. Supreme Court.

This part of Lippman's speech is more scary than inspiring.

First, an individual had to sue the State of New York so that the State of New York would wake up and recognize a systemic problem of continuous violations of the fundamental constitutional right of indigent criminal defendant in the State of New York for effective legal representation at every stage of criminal proceedings.

The State of New York, instead of recognizing the problem, spent taxpayers' money and fought tooth and claw through the initial lower court proceedings, and through two appeals, in the Appellate Division 3rd Department and the New York State Court of Appeals, before the case was actually remanded to the lower court, and proceeded to trial, and only before trial did the State of New York settle - and obviously, only to prevent public airing as to how bad the problem really is.

Think about the amount of money the State of New York spent on legal representation in a case where it FINALLY admitted existence of a systemic problem.

I do not find this situation inspiring.

Furthermore, the settlement agreement covers only 5 counties out of 62 counties of the State of New York.  

Thus, other 55 counties at this time may continue NOT providing assigned counsel at arraignment, providing assigned counsel with unmanageable caseloads, and failing to monitor competence or actual effectiveness of the work of defense counsel for the indigent, whether through the public defenders offices, legal aide or assigned counsel program.

There is an interesting concession in the agreement.  "Incident" or "sporadic" failures of counsel to appear for the indigent defendants will not be considered a breach of the agreement.  And, with the exception termed in such broad language, I am sure this exception can be used as a loophole to swallow the entire rule and obligation to provide effective assigned counsel at arraignments.

A disastrous figure that the settlement (but not Lippman) cited was over 500 and, in some counties, over 700 cases as caseloads of public defenders.  Such caseloads are completely unmanageable and constitute a constructive denial of meaningful legal representation.

All in all, it can be deemed that in counties with such caseloads on public defenders, legal defense of indigent criminal defendants is non-existent, and all convictions ever made under such circumstances should be instantly vacated and reversed.  Will the State of New York make this huge step?  I highly doubt it.

Moreover, what Lippman did not cite is the invention by his court system of a rule where a criminal defendant whose case has been botched by a criminal defense attorney may not sue that attorney for malpractice until and unless the criminal defendant overturns his conviction, often caused by that same malpractice, and shows "actual innocence".

Such a rule does not exist for malpractice in civil cases, the botched civil case does not have to be reversed for the right to sue for malpractice to arise.

Why does this rule exist?

Obviously, to insulate criminal defense attorneys from any malpractice liability for botched up cases.

Since appellate courts, as a matter of policy, affirm practically 99.9% of criminal appeals, and since the standard of "effective assistance of counsel" set by the court is extremely low, the chance of overturning the conviction in order to satisfy the "criminal defense malpractice rule" is next to zero.

And apparently, this court policy exists to absolve the overworked public defenders from malpractice liability, even though, with 700 cases per attorney, it is obvious that they cannot possibly provide proper legal representation - and should decline accepting cases where they cannot provide such effective representation.

So, the solution that the "spectacular" and "absolute best" New York judiciary has so far found for the staggering problem of ineffective assistance of criminal defense counsel for the indigent because of excessive caseloads is - while not relieving the caseloads - invent a way to block criminal defendants from suing their public defenders for accepting cases where they knew they could not possibly provide effective legal representation - and, predictably, botching the cases.

Thus, indigent criminal defendants in New York are hurt several times - by not being given assigned counsel at arraignment, by being given overworked and underfunded assigned counsel, and then by being blocked from suing his or her assigned counsel for malpractice due to predictably botched representation resulting in a conviction that is impossible to overturn due to courts' policies of priority of finality over fairness.

And existence of such "policy" approaches to resolution of constitutional problems in New York courts is the real problem that Lippman did not address.

New York State of the Judiciary 2015 address - the fake promise of future declarations on "civil Gideon" while presently available "civil Gideon" rights are frustrated

I have written in this blog about how New York courts frustrate access of Pro Se litigant to effective legal representation.

My readers give me feedback that the situation is rampant as to denials of assigned counsel where counsel is badly needed - and where people are entitled to assigned counsel by statute.

Examples are:

Family court and foreclosure proceedings.

In Family Court, judges started to require submission of tax refund information, and disregard the family's debt obligation, including child support and child support the arrears obligations.  With a large refund, even if it has to be applied to the family's mortgage, car payment (and we have no public transportation where I live and practice law, so the car is the only way to get a job and provide a livelihood for the family and children), or court-ordered child support or arrears, assigned counsel is habitually denied in Family Court.

When individuals are appealing from Family Court decisions, appellate divisions impose a payment cap to the assigned appellate counsel which exists no matter how big the record is and can only be extended by pennies as compared to the work that is supposed to be done.

Online research databases are notoriously expensive, local law libraries understaffed, located far away from the assigned counsel (if this is a rural area), are not open during the weekend and evening hours where attorneys are free from court appearances and can do their work on the appeals

Thus, with research practically not covered by the payment cap, with review of large records not covered by the payment cap, indigent Family Court appellants are practically punished for taking the case to trial, as their assigned appellate counsel face the dilemma - to work without payment in reviewing the record, or to skip through it without proper research (which is what is often done).

Thus, the already given right to assigned counsel is frustrated - and Lippman could work at least on not frustrating rights to assigned counsel that already exist before trying to provide assigned counsel in more cases.

In foreclosures, assigned counsel is available to indigent homeowners by statute, but the first time the indigent homeowner appears before the judge to ask for that assigned counsel is usually at the "settlement conference", 60 days after the service of the foreclosure complaint, when the homeowner is usually in default and waived all of his or her affirmative defenses.

Assigning counsel at that point is more or less useless, and the statute does not presuppose a possibility of advising the homeowner of his right to apply for an assigned counsel in the text of the foreclosure complaint, nor to advise the homeowner that he will not be in default until he exercises that right, until the counsel is assigned and has 20 days after assignment to file the Answer and Affirmative defenses.

Also, the same indigent homeowner who has a right to an assigned counsel at the trial level, will be denied that right on appeal.  By the courts over which Lippman supervises and has authority to change these rules, but doesn't, preferring instead to throw around populist slogans like this:

Unrealistic resolutions do not help much.

Resolutions without funding create false illusions and false hopes in people, which is cruel.

Lippman provided no promise that the "joint resolution" he is seeking with the Legislature will have any funding at all.

What "civil Gideon" rights exist now are already watered down and frustrated, as I explained above.

It appears that, for Lippman, it is more important to make "the first statement of its kind" than to make sure the statement will actually work or has sources of funding, or that before he makes such a statement, he mended the holes in how the already existing "civil Gideon" rights are (mis)handled by his courts.