"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.

Friday, March 27, 2015

NYS Appellate Division 4th Department: we are not in compliance with the law and due process as to who is permitted to investigate and prosecute attorney disciplinary proceedings, but we do not care

Admission and removal from practice of attorneys is governed by Judiciary Law Section 90.

Nowhere in Judiciary Law Section 90 will you find authorization for existence of committees within appellate divisions handling investigation, prosecution and suspension or removal of attorneys from practice.

Yet, Judiciary Law 90(7) does prescribe who and how should be given authority to investigate and prosecute attorney disciplinary proceedings in New York.

Judiciary Law 90(7) specifically provides:

    7. In addition to the duties prescribed by section  seven  hundred  of
  the  county  law, it shall be the duty of any district attorney within a
  department, when so designated by the justices of the appellate division
  of the supreme court in such department,  or  a  majority  of  them,  to
  prosecute all proceedings for the removal or suspension of attorneys and
  counsellors-at-law  or  the  said  justices,  or  a majority of them may
  appoint any attorney and  counsellor-at-law  to  conduct  a  preliminary
  investigation  and to prosecute any disciplinary proceedings and, during
  or upon the termination of the investigation or proceedings, may fix the
  compensation to be paid to such attorney and counsellor-at-law  for  the
  services  rendered,  which  compensation  shall  be a charge against the
  county specified in his certificate and shall be paid thereon.

So, Judiciary Law 90(7) enumerates only two ways as to how the court may appoint atattorneys to handle disciplinary proceedings against attorneys:

Option 1:  to designate a district attorney within the department;
Option 2:  to appoint "any" attorney and then fix his or her compensation, to be chargeable against the county.

There is no third choice designated in Judiciary Law 90(7).

Since ways as to who can prosecute in disciplinary proceedings and how can such a prosecutor be appointed, are strictly enumerated by statute, and since the so-called "Attorney Grievance Committees", or "Professional Conduct Committees" are not authorized by Judiciary Law 90, it is clear that attorneys for "Attorney Grievance" or "Professional Conduct" committees may not investigate or prosecute attorney disciplinary violations.

They are simply not authorized to do that by statute.

Yet, look what kind of letter I received from the New York State Appellate Division 4th Department when I was trying to verify compliance of the department with Judiciary Law 90(7) as to appointment of Mary Gasparini and Gregory Huether, my two disciplinary prosecutors.

The clerk of the 4th Department expresses to me her opinion as follows:

(1) that both of these attorneys, Mary Gasparini and Gregory Heuther, are "employees of the Unified Court system" (which absolutely disqualifies them to appear in the court they are part of as prosecutors), and, by the way, prosecutors are part of the Executive branch of the government, not of the Judicial branch;

(2) that district attorneys are not designated by the 4th Department for the purposes indicated in Judiciary Law 90(7);

(3) that appointment of Mary Gasparini and Gregory Huether is not in compliance with Judiciary Law 90(7).

In other words, the clerk of the court acknowledged that Mary Gasparini and Gregory Heuther are employees of the court, thus acknowledged that the court is acting as a prosecutor and an adjudicator in the same proceedings (not to mention that the court is also a legislator in the same proceedings, because it enforces procedural and substantive rules of its own creation), and that they were not appointed in compliance with Judiciary Law 90(7).

Moreover, the claims that disciplinary prosecutors are permanent state workers entitled to "sovereign immunity" go out the door when you simply read Judiciary Law 90(7) that clearly allows only those attorneys whose fee is chargeable to the counties to prosecute disciplinary violations.

So, the Legislature allowed only attorneys paid by counties, not by the State of New York, to prosecute disciplinary violations.

Courts disregard that requirement and make their own rules, contrary to the enabling statute, which make such rules invalid.

Will anybody anywhere, out there, finally see that disciplinary proceedings in New York, the way they are done now, are blatantly unlawful and unconstitutional?

No comments:

Post a Comment