"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, February 9, 2015

Appellate Division 3rd Department establishes brand you law to protect a judge's wife - and it is now applicable to all of you. Thank you, Ellen Coccoma!

Due to the necessity to rescue the wife of the Chief Administrative Judge Michael V. Coccoma from sanctions for frivolous conduct and attorney discipline, the Appellate Division 3rd Department (Judges Garry, Lahtinen, Rose and Devine) made the following brand new law:

(1) it is now not sanctionable for attorneys to CONCEAL the death of their clients and resulting abatement of jurisdiction from the court.  So, go ahead, colleagues, if your client dies, file new motions and prosecute them as if nothing happened - the Appellate Division claimed that it is not sanctionable, even if you, like Ellen Coccoma did, affirmatively claim to your opponent after your client's death that:

  • decedent's children are suing on the basis of a valid power of attorney of the decedent (while POA expire at the grantor's death);
  • that calling the decedent to a deposition (while opponent does not know that the party has actually died) is "harassment" of the decedent - I do not know how a decedent can be harassed, but obviously, Ellen Coccoma does.

(2) if a retired judge, like retired Broome Surrogate's Court Judge Eugene Peckham, presides before retirement over a case and then joins as a partner the law firm - and representation - of a party in that same case, and does that while the retired judge is appointed as a Judicial Hearing Officer into the same court, that behavior is not sanctionable conduct for the retired judge or his law partners;  so now, dear retired judges - you can engage in this disqualified representation to your heart's desire, the main thing though is not to announce that you joined the law firm representing a party as a law partner, because that's how Eugene Peckham got caught, yet was never sanctioned - and never even mentioned in the Appellate Division's decision;

(3) It is now allowed for private attorneys to use courthouses to conduct depositions for the benefit of their private clients, at no cost to the attorney or to the private clients.  YAHOO, ladies and gentlemen, let's rush to courthouses and demand their use (for free) for private depositions in our cases.  The rule must equally apply to pro se parties, since it is a precedent.

(4) it is now allowed for judges to order the use of courthouses for the benefit of private attorney's depositions, at no cost to the private attorney or the attorney's private clients - at taxpayers' expense. Attention sitting judges - YOU CAN DO IT now!  You can order private use of the public courthouse building at taxpayers' expense to attorneys and parties of your choice, so go ahead, apply this precedent!

(5) Children of a person who would have been a distributee had he survived the death of the person whose death triggers the distribution, but who did not survive such death, are now distributees in their own right, even though their parent is not.  This one is hard to digest, but this rule was made because:

  • Now retired justice of the Appellate Division 3rd Judicial Department drafted the will in question, but made it so obscure and convoluted that the straight reading of the will would have required clients of Judge Coccoma's wife Ellen Coccoma to lose.
To hurt two judges (retired judges, judges' relatives)?  Oh no.

So, a brand new rule is created - so apply it happily.

(6) And now the kicker - the Appellate Division 3rd Judicial Department COMMENCED A NEW LAWSUIT on behalf of Ellen Coccoma's clients.

In the old one, Ellen Coccoma provided to me as the corporate attorney, a "Bill of Particulars" where Ellen Coccoma indicated, as the basis of standing of three children of the decedent, the "Power of Attorney" from the decedent.

The Bill of Particulars is a binding pleading restricting the standing of the litigants.  Therefore, decedent's children's lawsuits and rights live and die with the rights of the grantor of the POA.

The grantor of the POA died on November 6, 2011.  With him, children's rights died, too.

If children wanted to AMEND the complaint and ADD themselves as parties IN THEIR OWN RIGHT, they should have done that - but they never did.

The Appellate Division has actually ruled in this case that the decedent does not have a remaining right to sue as to one of the properties that are the subject of litigation - the East River Road property.

So - the decedent has no right to sue, his POA is dead, his children sued only on the basis of the POA.

What happens?  the lawsuit dies and is dismissed?  Yes?  "Yes", if you have an "average Joe" as a party and an "average Joe" as the party's attorney, and the rule of law applies strictly to him and his attorney.

"No", if the party's attorney is the wife of the most powerful judge in upstate New York.

This is what was the ruling of the Appellate Division on this issue:

"Given that "[a] distributee is a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution," however, plaintiffs do have a contingent interest in East River (EPTL 1-2.5; see EPTL 1-2.16, 4-1.1 [a] [5]). They are therefore entitled to assert claims relating to waste by the life tenant and his agents, including Homestead, and seek an accounting for their actions at East River (see RPAPL 1501 [1]; SCPA 103 [30]; 2201; Matter of Gaffers, 254 App Div 448, 451-452 [1938])."

Now, IF the children had a separate and distinct interest in the East River property, they had it long before their father died and could pursue it at any time - but they chose not to, because, as the Bill of Particulars says, they proceeded exclusively on their father's POA, and not on their own individual claims as "contingent remaindermen", and they cannot pretend that the Bill of Particulars never existed.

The remedy in such a situation is to INTERVENE into the lawsuit on their own behalf and FILE an intervening pleading, after PAYING an additional Index No. fee.

Moreover, the Intervening lawsuit must be served - and in my client's case (my client is a corporation), served upon the Secretary of State.  Nothing like that ever happened.

So, how did the Appellate Division 3rd Department rescue Ellen Coccoma's clients?

For Ellen Coccoma, the Appellate Division 3rd Department did an amazing trick which was the legal equivalent of COMMENCING A NEW LAWSUIT on behalf of three clients of Ellen Coccoma by the 4 appellate judges - Judges Garry, Lahtinen, Rose and Devine.

The Appellate Division claimed that children of the decedent now have standing IN THEIR OWN RIGHT - that is after the court reviewed the Bill of Particulars clearly stating that the children were suing only on their father's POA - which died on November 6, 2011 when their father died.

As we know, the New York State Constitution prohibits sitting Supreme Court judges to practice law.

Commencing a lawsuit is practicing law.

Will the NYS Commission for Judicial Conduct take off the bench Judges Garry, Lahtinen, Rose and Devine for practicing law on the bench to the point of filing lawsuits on behalf of clients of judge Coccoma's wife who got hopelessly lost in a civil case which she is handling on the Otsego County taxpayers' dime (because she is also and primarily the Otsego County Attorney, a full-time employee).

So - since it is a precedent that judges now MAY practice law and MAY commence new lawsuits, are we now entitled to ask our presiding judges to do that for us, commence lawsuits for us - without any effort on our behalf to make motions to bring in new parties?

So many new rules - and all of them for a wife of a judge...

Yet, through the rule of precedent, all of this bounty is now yours for the taking.

Make use of the bounty, ladies and gentlemen!

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