"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 2, 2015

New York Judiciary Law 90(10) stops normal functioning of the courts, the legal profession, their clients and their client's business and makes the statutory scheme of attorney admissions and discipline in New York unconstitutional

New York State Judiciary Law 90(10) provides:

     "10.  Any  statute or rule to the contrary 
      notwithstanding, all papers, records and 
      documents upon the application or examination 
      of any  person for  admission  as  an  attorney  
      and  counsellor  at  law  and upon any complaint, 
      inquiry, investigation or proceeding relating 
      to the  conduct or discipline of an attorney 
      or attorneys, shall be sealed and be deemed
      private  and  confidential.  However,  upon  
      good cause being shown, the justices of the 
      appellate division having jurisdiction 
      are empowered, in their discretion
      by written order, to permit to be divulged all 
      or any part of such  papers, records and documents. 
      In the discretion of the presiding or acting 
      presiding justice of said appellate  division,  
      such order may be made either without notice 
      to the persons or attorneys to be affected 
      thereby or upon such notice to them as he may
      direct.  In furtherance of the purpose of 
      this subdivision, said justices are also
      empowered, in their discretion, from time 
      to time to make such rules as they may deem 
      necessary. Without regard to the foregoing, 
      in the event that charges are sustained 
      by the justices  of  the  appellate  division
      having  jurisdiction  in  any  complaint,  
      investigation or proceeding relating to 
      the conduct or discipline of any attorney, 
      the records and documents in relation 
      thereto shall be deemed public records.

My disciplinary case showed that this is quite a spectacular statute in the way it may be applied and used, because in my case the court, Appellate Division 4th Judicial Department, issued an order of December 17, 2014 "sealing" the order itself and several motions with supporting papers upon which the order was made.  

The supporting papers provided both by the prosecution and by myself in the proceeding included a lot of court cases from New York, federal and even international courts (there was a case from the United Nations court and a case from the European Court of Human Rights), there were multiple public documents from this state, from other states and from other countries, there were newspaper articles published on the Internet by newspapers and public advocacy organizations operating in this state, nationally and in other countries.  

All of these "documents and records", pursuant to Judiciary Law 90(10) are "deemed sealed".

I am being criminally prosecuted at this time for violating that "sealing order" with a claim that it was a "lawful mandate of the court", so, I understand, Judiciary Law 90(10) is strictly applied and enforced.

Yet, it appears that it is strictly enforced only against me.  Had it been strictly enforced as it is written, the New York court system would have stopped functioning by now, and I will explain why, below.

The plain text of Judiciary Law 90(10) provides that, once a secret inquiry about an attorney starts, all "documents and records" upon which such a secret inquiry starts are "deemed sealed" without a court order.  

To start or not to start inquiries against an attorney is within sole discretion of attorney disciplinary committees, unelected bodies where the super-majorities of members are private attorneys, and where members are handpicked by judges of the 4 Appellate Divisions in New York.

What is "deemed sealed" under the plain application of the law is not available to the public for any use.

Thus, disciplinary committees have power to take out of public use documents and records such as judgments of divorce, orders of custody, money judgments, foreclosures or dismissals of foreclosures etc., which are the basis of legal rights of numerous members of the public who are not subject of the inquiry against the particular attorney.

The disciplinary committees have the sole discretion of sealing such records without a court order and for an indefinite time.

I do not believe New York State Legislature had any right to delegate SUCH power to the attorney disciplinary committees or Appellate Courts, but that's exactly what the Judiciary Law 90(10) provides for, by its plain text.

Thus, if a complainant turns in his own attorney (as an example) and complains about the attorney's alleged mishandling of a court case or a business transaction, and the particular attorney disciplinary committee deems the complaint meritorious enough to start an inquiry upon it, as soon as the inquiry is started, all documents pertaining to the court case that was the subject of the complaint (a case which may be still pending, and if concluded, the order is used by at least two opposing parties to establish their legal rights) are "deemed sealed" and are unusable for any purpose, and the same applies to all documents from the business transaction.

 Judiciary law 90(10) is also unique by at the same time providing for confidentiality of attorney disciplinary proceedings and blowing it: 

on the one hand, confidentiality of attorney disciplinary proceedings are protected by Judiciary Law 90(10) because inquiries and proceedings against an attorney, together with all documents and records upon which the proceedings are based, are "deemed sealed";

on the other hand, if the records are public records from business transactions or court cases of the subject attorney's clients, "sealing" of all "documents and records" upon which the inquiry and proceeding is based must seal the "documents and records" where they are kept by their custodians, and such sealing is impossible without notification of custodians of such records.

So, the statute is made in such a way that it provides for confidentiality of attorney disciplinary proceedings by (1) necessarily blowing that same confidentiality through the necessary notification of the custodians of public records that such records are now sealed; and (2) by stopping the businesses and court cases which are subject of inquiries and proceedings against attorneys.

It is obvious that the statute is stupid, unlawful, unconstitutional, if it is applied properly it will prevent establishing legal rights of untold (literally) number of New York residents and business and will stop an untold (number) of court cases from proceeding or judgments from such cases from being used in any way. 

 Moreover, "documents and records" sealed under Judiciary Law 90(10) are sealed forever until and unless one of two events happen:

(1) somebody who actually knows that certain "documents and records" are "deemed sealed" makes and wins a motion to the Appellate Division where the secret inquiry or proceeding against the attorney commenced that triggered the sealing of "documents and records", or

(2) the inquiry against the attorney culminates into a proceeding and a public decision on attorney discipline is made, then all papers upon which the decision was made are again "deemed" public records.

It is clear from the text of Judiciary Law 90(10) that if the inquiry or proceeding against the attorney are decided in attorney's favor, the sealing of "documents and records" continues forever.

And the cases and documents are "deemed sealed" without a court order, without knowledge of or notification to attorneys' clients, opponents, opposing counsel or courts of record handling those "documents and records".

As demonstrated by the analysis above, Judiciary Law 90(10) is clearly unconstitutional, on its face, the way it is written, as it stops in its tracks the functioning of the New York State court system, business transactions and ability to prove legal rights of people through court decisions and business documents as soon as a body of unelected officials handpicked by an appellate court (attorney disciplinary committees) decides to start an inquiry about an attorney that is based on those court records and business documents.

Please, notice that Judiciary Law 90 does not have what is called a "severance clause" providing that if one part of the statute is pronounced unconstitutional, others survive.

Judiciary Law 90 is the basis of (1) attorney admissions and (2) attorney discipline in New York.

If a portion of a statute that does not contain a severance clause is unconstitutional (and Judiciary Law 90(10) is clearly unconstitutional on its face), the whole statute is unconstitutional.

Judiciary Law 90 provides for attorney admissions and discipline, and if Judiciary Law 90(10) must fall, the entire Judiciary Law 90 must fall, too - but I am sure disciplinary committees will fight tooth and claw against any claims that the underlying statute upon which they operate is unconstitutional.  Too much power is involved to let it go easily.

The interesting part is that there is no way of verifying the scope of the disaster where courts and transactions proceeded and decisions were and are being made FOR YEARS upon documents that were "deemed sealed" pursuant to Judiciary Law 90(10) as triggered by inquiries against attorneys.

I will double-check through letters to custodians of the records sealed in my case whether they were notified that the records involved in my inquiries are sealed as a matter of law, without a court order and will publish responses from custodians of the "deemed sealed" "documents and records" on this blog.

Stay tuned.

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