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?
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