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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