"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.

Saturday, May 30, 2015

250 prosecutors disqualified in California by a single judicial decision because of misconduct - will there be any discipline of those prosecutors?

A judge in California has just disqualified 250 prosecutors off a major case because of a long history failure to turn over to the defense exculpating and impeachment evidence about informants who were illegally pumping criminal defendants for incriminating information, despite their attached right to counsel.

As a response, the prosecutors increased dramatically their motions to disqualify the judge.  Usually such motions are made when the judge is not impartial.  Ruling fairly as to prosecutorial misconduct that truly occurred does not constitute a ground for disqualification of a judge, and the judge should be commended for his courage, as his disqualification decision are ruffling a lot of feathers in the political elite of the state.

The reason for the disqualification, among other things, was that the Orange County Sheriff's Department, in total agreement with the DA's office, created and operated - for years and decades - a SECRET system of evidence against criminal defendants held in custody and pumped for information by jail snitches.

Such pumping for information by jail snitches at the behest of the government was the same as the government conducting interrogation.  Some of the evidence secretly held by the police for 25 years was exculpatory and was not turned over to the defense, with the full knowledge of the prosecutors.

Two years ago, it has been reported that crime labs are paid PER CONVICTION, meaning that the results of their work is clearly tied to whether the defendant is convicted or not.

Imagine what kind of perverse incentive that is and how many lives it may have disrupted through wrongful convictions.

My search on the Internet failed to discover that anybody was disciplined or held accountable for creating such a "pay-per-conviction" scheme of compensation for the crime labs, and one does not have to be a wiz to see a hand of a prosecutor (a future judge?) all over the place in this pay-per-conviction scheme.

Imagine how many lawyers (prosecutors) knew about the scheme and kept mum.

In April of 2015 it was reported that federal crime labs were presenting false evidence and testimony in criminal cases since 1999, generating an unknown number of false convictions and falsely induced plea bargains.

My question is - when independent civil rights and defense lawyers are suspended and disbarred left and right for simply criticizing a judge (for which they must have full 1st Amendment protection - especially when they do that to ensure their clients' right to a fair and impartial adjudication), what will be done in terms of discipline to prosecutors who perpetrated all of the above-reported fraud and misconduct?

Should we hold our collective breaths to figure that out or do we already know the answer - NOTHING?

And isn't this "nothing" the answer as to whether there is a reason to continue the fake protection of the attorney licensing system which protects only the market, with its high prices, from entry of affordable providers of legal services, not bound by financial contributions and financial ties in their loyalty to "the system"?

While we are waiting to see whether the 250 prosecutors will be disciplined or not, we can recall that California is the state that disbarred attorney Richard Fine for his fight against judicial corruption when he found out that state judges received additions to their salaries from counties that appeared in front of those same judges as parties.

The scandal was hushed by:

  1.  disbarring and jailing in solitary confinement for 14 months (without charging him with a crime) the whistleblower against judicial corruption, prominent attorney Richard Fine, and by 
  2. the State Legislature giving judges involved into the apparent corrupt scheme of justice for sale retrospective immunity from criminal prosecution, civil liability and disciplinary action  for any misconduct they may have committed.

With that in mind, I will be eagerly awaiting news as to how the now discovered misconduct of the 250 prosecutors will be handled by the State of California.

Friday, May 29, 2015

The new New York State one-size-fits-all bar exam - "rearranging the deck chairs on the Titanic" while discrediting the idea of regulation of the legal profession

This month, New York announced that, starting from July of 2016 it will switch to a multi-state bar exam, departing from its traditional two-part two-day exam checking both the federal and the New York State law.

The decision is paraded as a measure to allow more mobility to young attorneys who increasingly struggle to find employment on graduation.

Some professors explain that phenomenon by the fact that there is a decreased demand for legal services.

Being in that market, I can say that it is simply not true.

The market for legal services not only did not decrease, but is growing - it is the attorneys who try to justify their costly legal education by high hourly rates who are pricing themselves out of the market.

In fact, the same Chief Judge Lippman who changed the rules regarding the bar exam to allow New York attorneys to go work in Nebraska or Missouri, states who also embraced the multi-state bar exam, also repeatedly claims to the public that there is a crisis in the New York justice system where over 80% of litigants simply cannot afford an attorney.

If the market is deregulated and attorneys will have competition from non-attorneys, prices will instantly settle themselves, and those 80% of people who at this time have no access to affordable legal services, will get such access.

To claim that attorney licensing protects the 80% of the public who must go without the needed legal services because they cannot afford the high prices in a tightly regulated market, is to shed crocodile tears, and especially with the way attorneys are regulated:

  • when the most powerful attorneys (prosecutors, judges, law clerks, the New York State Attorney General and his over 640 assistants, all attorneys working for the government, attorneys related to attorneys working for the government) are beyond the reach of discipline, it is not the consumers that attorney regulation is protecting;
  • when attorneys targeted for discipline are attorneys blowing the whistle against judicial corruption and corruption of other public officials and politically connected attorneys, the public and consumers of legal services are not protected;
  • when the super-majority on the attorney disciplinary committees are private market participants interested to preserve their high prices, restrict access to the market to preserve those high prices, and are interested to eliminate competition and especially competition from independent attorneys, and when representatives of the cross-section of the public are not allowed representation on those committees to the point of casing a decisive vote as to what they consider good or not good for their own protection, that is not protection of the public, it is a fake designed to preserve the status quo for the legal elite while pretending that the self-serving actions of that legal elite is somehow done for the protection of the public and not to enrich politically connected attorneys, the friends and family members;
  • when the public is not allowed to be present at attorney disciplinary proceedings, even if the attorney subject to those proceedings asks for it repeatedly, that is not protection of the public.

The change in the New York State bar exam puts yet another dent into the claim that attorney licensing in New York (and elsewhere) is designed to protect consumers from incompetent and/or unethical attorneys.

Due to well reported difficulty to get employment on graduation, more and more potential students skip law school and pursue other graduate education.

While enrollments in law schools dwindle, law schools lower their standards for admission to keep financially afloat.

Thus, the caliber of students entering law schools and graduating from them, dwindles, too.

In order to allow that lower caliber of students to pass the New York State bar which can prove too rigorous for them, New York eliminates the toughest part of the exam - the New York State part - and allows students to take a one-size-fits-all exam that will be somehow valid in:

  1. Alabama, 
  2. Alaska, 
  3. Arizona, 
  4. Colorado, 
  5. Idaho, 
  6. Kansas, 
  7. Minnesota, 
  8. Missouri, 
  9. Montana, 
  10. Nebraska, 
  11. New Hampshire, 
  12. North Dakota, 
  13. Utah, 
  14. Washington, and 
  15. Wyoming

I doubt that employment situation for young attorneys right out of law school is much different from New York, so to direct New York attorneys to get employment in Kansas while to direct Kansas attorneys to seek employment in New York sure aids attorney's mobility (which is good), but does not change problems in the market of legal services, prompting a reporter from the Fortune magazine to call the arrangement "rearranging the deck chairs on the Titanic".

It is even more alarming that Chief Judge of the state of New York Jonathan Lippman indicated that what New York does other states follow, and that there may be a "domino effect" amongst the states to change their bar exams to the "one size fits all" exams.

There is the good and the bad in that.

The good - that same acclaimed mobility, an attorney who sat for one bar exam (which is a gruelling experience enough, as I can attest, having passed the "old" New York State bar exam in the first sitting, while English is not my native language), does not have to be the slave of a certain state, chained to the State of New York (or Kansas, or Missouri, for that matter).

On the other hand, I do not know how complex is the law in other states, but in New York, passing a bar exam without being tested in knowledge of, specifically, New York Civil Practice Law and Rules (for civil litigation), New York Family Court Act (for proceedings in child support, paternity, custody and visitation, child abuse and neglect, domestic violence), New York Penal Law and Criminal Procedure Law is the same as not passing the bar exam at all.

The "short online multiple choice test" of New York State law is a completely inadequate measure to test competency in New York State law as a justification of attorney regulation in the State of New York.  First, identity of test takers in online tests is unverifiable, second, the New York State portion should be the largest and most vigorously tested, to prepare for practice in New York State courts, and not instead treated in a perfunctory measure, to report that the test takers took SOME tests in New York State law - online.

If online testing is so adequate - why not conduct the ENTIRE bar exam online?

Yet, the security measures in New York for bar testers are designed to ensure that one cannot take that test for another - when I was taking that test in 2008, I had an identifying bracelet around my wrist for two days of the exam, my ID with me at all times, and my computer (I was taking the test on the laptop) was blocked from the Internet completely.

So - if New York State now allows ONLINE "short tests" of the New York State law, while not changing security measures for the rest of the bar exam, it only shows that New York DOES NOT CARE who takes the New York State portion of the bar exam - as long as it is passed.

Yet, it will be the CPLR and the Family Court Act and the Penal Law and the Criminal Procedure Law, and Real Property Actions and Proceedings Law and Surrogate's Court Procedure Act, all state statutes, that will control court proceedings where a young attorney will engage.

Passing online "short" multiple choice exam on New York state law will not prepare bar exam takers for practice in New York State courts.

Moreover, since it will be an online test, and a "short" multiple choice exam, preparation for that portion of the bar exam will not be considered important - with resulting lack of knowledge by the test takers.

Passing a one-size-fits-all exam in its simplified format, thus, will not provide to the public a proper assurance that attorneys who passed the test are prepared to practice law specifically in the courts of the State of New York, because in the courts of the State of New York, an attorney needs to know New York law, and not simply be able to be trained for a brain-dump of a one-size-fits-all bar exam.

 Which means to me that shifting to the one-size-fits-all exam in states with vast differences in their statutes and procedures, both in civil and criminal litigation, at the trial and appellate levels, discredits the whole idea of attorney licensing, because neither graduation from the "ABA-certified law school", nor passing of the "one-size-fits-all" bar exam provide assurance to the public that a licensed attorney is any more competent than an unlicensed individual who has diligently read the applicable law and is ready, willing and able to represent his neighbor or friend in court.

In fact, there is more assurance of competence of the neighbor who has actually studied the applicable state law than an attorney who has a pulse and a license based on passing a simplified one-size-fits-all bar exam that did not test the attorney in the knowledge of state law, but the license provides to the public a false assurance of competence.

To continue with attorney licensing under such circumstances is to continue to deceive the public with false assurances of competence where no competence can be found.


That said, what remains is a huge issue of equal protection concerning those attorneys who had the misfortune of having passed the more rigorous "old" bar exam, with the state component, but that is not recognized by other states.

Will the State of New York try to bridge that inequality gap by entering agreements with other states that attorneys who received their licenses before the new bar exam is going to be introduced in July of 2016, will not be penalized for taking the bar exam "too early" to be automatically recognized by other states?

Does it make any sense for this year's law school graduates to take July 2015 or February 2016 bar exam since it requires more efforts, but will provide less rights to the successful takers?

Does it make sense to wait until July 2016 and work somewhere in a non-attorney position for a year, so that the gruelling efforts in bar preparation will not be wasted?

Questions, questions, questions.

All of those questions can be resolved in one go if this Gordian knot of the market of legal services regulated to the brink of perishing, is simply cut and the market is deregulated.

Then, prices will even out, competence will become a point of proof for each attorney (or non-attorney) and a point of responsible background research by the consumers before they come to a certain provider of legal services before hiring him or her.

Then, competence will survive and incompetence will perish - as they should in a market economy.

If the market of legal services is deregulated, courts will lose the leverage of trying to eliminate capable providers of legal services for the mere reason that those providers blew a whistle on judicial misconduct, and those providers will be available to the public, at a time when governmental misconduct increasingly becomes a problem that needs more and more attorneys to deal with it - and not be afraid to deal with it.

It appears that deregulation of the legal profession is around the corner, and no matter how states are trying to prevent that event (lobbied, no doubt, by the legal elite that stands to lose the most from such deregulation), the Titanic is sinking.

Rearranging decks chairs will not help.

Thursday, May 28, 2015

What is the difference between Sirkin and Hedges? It is a difference between pissing off Tormey and pleasing Tormey in going after Tormey's critics

I wrote in this blog about the disciplinary proceeding in the New York State Commission for judicial conduct against former judge Bryan Hedges, brought against him AFTER he resigned from the bench.

I also wrote in this blog about a retired judge Stephen Sirkin, a referee in my disciplinary case who refused to conduct a court-ordered evidentiary hearing, instead illegally decided a motion in my case (of course, against me), even though the NY State Constitution, Article VI paragraph 4 subsection (b) clearly allows decisions in appellate courts to be made ONLY by a concurrence of three appellate justices, with a quorum of four.

Obviously, Sirkin is not and has never been an appellate judge, cannot single-handedly replace a panel of four appellate justices required for a quorum, and cannot replace a concurrence of three appellate justices in making a decision.

Yet, the same NYS Commission for Judicial Conduct that disciplined Hedges, refused to discipline Sirkin, because, as it was explained to me, Sirkin is no longer a judge, he has retired.

It did not prevent the Commission to go after retired judge Hedges though, on a tip from William Fitzpatrick, a law school roommate and buddy of Judge Tormey, the Chief Administrative Judge of the 5th Judicial District.

William Fitzpatrick appeared to have a personal grudge against Hedges of monetary nature.  According to the papers submitted to the NYS Commission for Judicial Conduct, William Fitzpatrick was likely upset that Hedges did not give in to the blackmail by the alleged victim who wanted to get some money from Hedges and split the money with the prosecutor (statements as to that arrangement were submitted as evidence to the NYS Commission for Judicial Conduct and is /or at least was, at the time I retrieved it/ publicly available online).

The bottom line is that the difference between non-prosecution of Sirkin and prosecution of Hedges was that Hedges pissed off the Chief Administrative Judge for the 5th Judicial District James Tormey by indicating to a court employee that Tormey was tormenting for refusal to engage in political espionage against a judge and Democratic judicial candidate that she was the target of Tormey's efforts "to get" her.

Of course, a zillion reasons may be brought up as to why Sirkin was not prosecuted and Hedges was.

And, of course, NYS Commission of Judicial Conduct has absolute "discretion" to bring or not to bring disciplinary proceedings against judges - and complainants, according to decisions by courts (self-serving decisions 

So, when Sirkin bent over backwards, to the point of disobeying a clear court order, refused to hold a court-ordered evidentiary hearing for me and issued an unconstitutional "decision" against me - that was pleasing Tormey who was pissed off by my criticism of him in pleadings and bringing out in pleadings and in this blog Tormey's ongoing misconduct that was the subject of at least two lawsuits, one that has cost NY state taxpayers $600,000.00 to settle, not to count legal fees (Tormey got free representation from NY State for 4.5 years defending against charges of misconduct that had nothing to do with his judicial duties).

When Hedges disclosed to the plaintiff against Tormey that she was the target of Tormey's ire, which helped the plaintiff's lawsuit - that pissed of Tormey.

And, by the way, two employees on the disciplinary committee currently prosecuting me are direct subordinates of Tormey who can expect his full ire if they would dare to through out the frivolous petition transferred to them from the 3rd Department.

So, to sum it up, the difference between retired judges Sirkin and Hedges is this:

Sirkin - pleased Tormey by his misconduct against a critic of Tormey - is not prosecuted for misconduct because he is a retired judge, and the NYS Commission for Judicial Conduct does not have (allegedly) jurisdiction over him.  Nobody else will discipline Sirkin because his misconduct was on behalf of and at the request of the disciplinary prosecutors, representing a committee with two employees of Tormey.

Hedges - upset Tormey by giving valuable information for the lawsuit of a court employee against Tormey.

And this "distinction" is the sum and substance of the integrity of the judicial disciplinary system in New York.

What is judicial misconduct in Philadelphia is business as usual in New York

According to the media reports, disciplinary filings were just made against two judges in Philadelphia who fixed a case for the son of a judge.

Here, sons of judges rock to the point that no law applies to whatever they are doing.

I wrote on this blog about shenanigans of son of a judge Richard Harlem, about misconduct of a son of a judge Michael Getman.

Son of a judge Richard Harlem, landlord to NY Senator James Seward and client to the law firm employing NY Senator Neil Breslin, does not have to know the law or know how to present law, facts, evidence or even to be truthful in his submissions.  He will still win and nobody will dare to punish him.

Richard Harlem and is (now late) father Robert Harlem were caught by the New York State Attorney General in a scheme to defraud the Surrogate's Court and conceal Robert Harlem's role in practicing law while being a sitting Supreme Court justice, involving his son (an attorney), his court secretary and his court law clerk in signing the will and codicils as witnesses, and where Robert Harlem bequeathed to himself (another ethical no-no) hundreds of thousands of dollars worth of assets, plus made himself a paid third co-executor and made the trust where he was a salaried trustee, recipient of the residual estate counting in the millions of dollars.

Son of a judge Michael Getman was never disciplined for his misconduct pertaining to a charity where the New York State Attorney General got to the point of filing a case against him and his father - and both escaped with a slap on the wrist and no criminal, civil or disciplinary liability.

No judges so far were disciplined for fixing the case for Richard and Robert Harlems, a case (read my blog post the Mokay saga) which, had the law been applied, would have been dismissed 8 years ago with sanctions against attorneys who brought it.

Once again, what is a disciplinary violation in PA, is business as usual in NY.

In PA, judges who fix cases for sons of judges through back room dealings, are in hot water.

In NY, three (!) judges were caught in ex parte communications with Richard Harlem and his hired attorneys, ALL THREE retaliated by sanctions and imposition of attorney fees against attorney and her husband who confronted them about the ex parte communications - and the Judicial Conduct Commission has not filed disciplinary charges against ANY of these three judges:

  • Carl F. Becker;
  • Ferris Lebous;
  • Kevin Dowd
That is, as much as I know about ex parte communications because they were part of billing records provided to me by Richard Harlem and his attorney David Cabaniss of Hiscock & Barclay.

One can only guess how much ex parte communication could have been going on without those ex partes reflected in the billing.

Yet, the trend appears to emerge that judges do not have such an easy way out anymore when they commit misconduct - not in small part because of public outcry and growing public awareness of the issue and pervasiveness of judicial misconduct in the American justice system on the state and federal levels.

So - will we soon see disciplinary charges filed against Carl F. Becker?  I doubt it because he is resigning as of July 31, 2015, even though anything is possible, because the New York State Judicial Conduct Commission did go recently after a former judge, Bryan Hedges, AFTER his resignation from the bench and did discipline him, precluding him from holding any judicial office ever again.

Against Ferris Lebous and Kevin Dowd?  Future will show.

Wednesday, May 27, 2015

Richard Harlem, Daniel Mokay and their conflicting theories as to what the Mokay case is about

Here is what attorney Richard Harlem told judge Elizabeth Garry on October 5, 2007 as to the essence of the Mokay litigation (see my blog posts "the Mokay saga"  and my posts from April 2015 to date:

Apparently, as of October 5, 2007, Richard Harlem indicated that he did not want the deeds in question to be put into the Estate of Andrew Mokay (his client since February of 2007) because the Mokay lawsuit had nothing to do with the Estate and had everything to do with the Mokay children enforcing their father's contract to make a will made in the father's divorce action in the Supreme Court. 

Of course, when the deeds were placed into the Estate, Richard Harlem appealed that decision on behalf of the children, making the Estate (Richard Harlem's client) an adverse party, then joined the Estate as a party (and his own client in the Mokay action) through a motion, while his appeal against the Estate was still pending.

When I sought a Bill of Particulars seeking to verify the standing of the Estate and to have the Mokay plaintiffs answer under oath, why the Estate was even joined as a Plaintiff in the action, Richard Harlem asked judge Becker to deny me the motion to compel production of the Bill of Particulars, and Judge Becker obliged.

At the February 29, 2012 hearing Judge Carl F.Becker (a Surrogate judge of 10 years by that time) claimed that when an Estate is added to the action, it is not the same as the decedent added to the action:

Then, at a pre-trial conference, I believe in 2013 in the Mokay action, Becker claimed that the Estate was "in privity" with the Mokay children.

Apparently, that should have meant, based on Richard Harlem's argument to Judge Garry (see snippet above) that the decedent and his Estate are suing in the Mokay action for breach of contract to make a will that was broken by the decedent.  The decedent or his Estate were definitely not and could not be, beneficiaries of the decedent's contract to make a will (rejected by Judge Becker as a Surrogate in 2007 when Judge Becker chose the "wrong" will of the decedent over the contract to make a will when both testamentary instruments were offered to Judge Becker for probate by Richard Harlem and Daniel Mokay as the decedent's Executor).

One more distinction is that - in Becker's understanding, when the Estate in the Mokay action sued, it was not the same as when the decedent sued.

Yet, when my husband sued the decedent, he had to sue his Estate in the Neroni v Harlem's action, and Judge Becker was presiding over that action, and still argued that when the Estate is suing (or is sued) for actions of the decedent, it is not the same as if the decedent is suing or is sued.

I am not surprised as to incompetence and lack of integrity of Judge Becker, it is legendary, and already caused Judge Becker (I believe) into an early resignation/retirement, 3.5 years before his actual mandatory retirement based on age.

What I do not accept as the rule of law though (not surprised, as I know that corruption in the judiciary system in this state and this country is also legendary) is that the entire judicial system, from clerks to appellate courts, play the fool to Judge Becker's incompetence and uphold anything Judge Becker says no matter how incompetent - only to rule against my husband and myself.

The sad irony is that, after the hearing of February 29, 2012, when Judge Becker stated:

two events occurred - Judge Becker recused in August of 2012, without rendering a decision that he reserved 6 months (!) prior while he had only 60 days, by law, to render that decision.

Apparently, the requirements of the law do not concern Judge Becker.

Moreover, in September of 2012 Defendant Robert Harlem (retired judge, father and law partner of Richard Harlem) died and - guess what? - Richard Harlem substituted his father's Estate as a defendant in the action, where suing the Estate was clearly the same as suing the decedent.

But the real bounder happened in May of 2015, when Richard Harlem's client Daniel Mokay, who by that time ditched Richard Harlem for another attorney in an action against the decedent/Estate for contribution or indemnification, based on the order of the Appellate Court designating the decedent as participant in the alleged fraud against the Mokay children, stated the following under oath:

So, in May of 2015, after the Mokay trial in April of 2015, Daniel Mokay suddenly claims that his father (and the decedent of the Estate whose will Daniel Mokay must carry out as his fiduciary and representative) committed wrongdoing and caused harm now to the beneficiaries OF THE ESTATE, because "he took from the beneficiaries property which he was obliged to give them".

Now, wait a minute.

On October 5, 2007 Daniel Mokay's attorney Richard Harlem argued to the court, Judge Garry, this:

In June of 2014, when testifying under oath, Richard Harlem reconfirmed that he is litigating on behalf of Mokay chidren as third party beneficiaries (the Estate of the decedent was certainly not a third party beneficiary under the decedent's contract to make a will that decedent has allegedly broken by writing a revocable will and having two deeds drafted - yet the Estate EXISTS BECAUSE Daniel Mokay and the Mokay children PROBATED THAT WRONG REVOCABLE WILL).

Richard Harlem obviously does not concern himself with such details in litigation.  After all, as a son of a judge, even a retired and late judge, he has had his privileges, such as that courts will give him anything he wants not matter how frivolous.

But here is what Richard Harlem said on June 23, 2014  on record, in front of Judge Kevin Dowd under oath as to the theory of the Mokay litigation:

So, in 2014, same as in 2007, the theory of the Mokay case was that the five children of the decedent Andrew Mokay were contract beneficiaries under the decedent's contract to make a will.

Of course, that theory did not explain presence of the Estate as a plaintiff in the action, but Judge Becker precluded me from seeking a Bill of Particulars verifying that issue, the Appellate Division affirmed without analysis of the issue, and Judge Dowd who got himself assigned to the Mokay case while recusing from a related Neroni v Harlem case, could not care less.

I must also indicate that Daniel Mokay was sort of the "main plaintiff" in the Mokay action.  At least, in answer to my question as to why there is no correspondence and billing statements sent to anybody other than Daniel Mokay, answers the following:

So, after the trial on the theory that Daniel Mokay and his five siblings were suing as third party beneficiaries under their father's contract to make a will, Daniel Mokay suddenly comes up with another theory, which he discloses also under oath - that the Mokay litigation was due to wrongdoing of his father, the decedent (whose Estate, remember, was added for an unknown reason as a plaintiff in the Mokay litigation while Daniel Mokay was appealing placement of the deed in the Estate, and while the Estate/decedent and Daniel Mokay were represented by the same attorney Richard Harlem, his father Robert Harlem and their law firm).

In May of 2015 the theory now is that Daniel Mokay's father for whom Daniel Mokay acts as a fiduciary/Executor, defrauded beneficiaries OF THE ESTATE, not third party beneficiaries under the contract to make a will.

So, what are we going to do now, after Judge Dowd makes a decision based on the old theory of litigation?  Back to court?  Maybe, just maybe, it will dawn upon the presiding judge to actually look at the applicable law and facts that are in the record - and toss the Mokay litigation, with an award of costs and attorney fees throughout it in favor of Mr. Neroni?

Who knows, maybe the rule of law is not yet a complete fiction in New York?

How does one award attorney fees against a counsel that LEFT THE CASE before the motion hearing?

As Judge Lebous' decision demonstrates - with ease, even though litigating something against attorney who is no longer attorney of record is obviously unlawful.

But, in my case, unlawfulness never stopped judges from acting, especially when the real reason is personal retaliation.

Is it legal for a judge to order an attorney to reimburse another attorney for the bribe paid to a disciplinary prosecutor

It is a rhetorical question, isn't it?

Of course, it is illegal.

So, this is then the answer as to the legality of Judge Ferris Lebous' judgment requiring me to pay the legal fees of the law firm (Hiscock & Barclay of Albany, NY) of my husband's disciplinary prosecutor John Casey when there is a huge appearance that the law firm was hired as a payoff to John Casey in exchange for non-prosecution of influential attorneys Richard Harlem and Robert Harlem by the attorney disciplinary committee of the Appellate Division 3rd Department.

And, the Appellate Division 3rd Department where the corruption occurred, is uniquely disqualified from hearing an appeal from this case - but I bet that they will hold onto it in a death grip.

My question is also - is it judicial misconduct for a judge, to order an attorney, within a 20 day period of time, to reimburse another attorney for the bribe he paid to a disciplinary prosecutor?

Will the NYS Commission for Judicial Conduct have the spunk to answer that question?  Will the feds?  Will the appellate court?

Reliance on legal authorities is overrated when the judge's own misconduct is the issue

Many times various judges pointed out to me that simply stating that something is not fair, or not constitutional in my legal opinion as a trained legal expert (which trained legal expert I will remain, by the way, whether the retaliative judicial system will or will not yank my law license) - is not enough, that I must provide legal authorities that would "support" my legal opinion.

That point of view is, of course, erroneous, because any reasonable individual, attorney or not, can have an ability to interpret the U.S. Constitution and claim its protections as a matter of due process of law.

In fact, courts may not amend the U.S. Constitution by interpretation and may not create rights that did not exist before that cannot be directly derived from the U.S. Constitution without the interim interpretation by the courts.

To hold otherwise is to give courts authority they are not given by that same U.S. Constitution.

To hold otherwise is to foreclose even a possibility of having cases of first impression and developing the law.

Yet, ability of anybody, attorney or not, judge or not, to directly interpret the law is not the point I am making now. 

The point I am making now is equality under the law and practicing what the courts preach, when the issue turns on the judge's own misconduct.

In a recent decision, Judge Ferris Lebous of Binghamton, NY, refusing to recuse because it was not him personally, but his chambers engaged in an ex parte communication with a person who WAS opposing counsel at the time before jurisdiction of the court abated due to the death of his client (at the time ex parte communication occurred), provided NO legal authority whatsoever - none - supporting his position that ex parte communications with a judge's "chambers" is not the same as ex parte communication with the judge himself and obviously, not within the prohibition for ex parte communications.

Also, Judge Lebous testified on behalf of my opponents and on his own and his staff behalf in the decision (unsworn testimony, of course) by stating what his rules are, what he allows his staff to communicate with attorneys and parties about - while Judge Lebous did not make a statement that he verified with the staff what the communication was about, and while the billing statements provided to the court clearly indicated that the communication was on the merits of the case and NOT about scheduling.

Once again my husband and I are given to understand that rules created by courts, and laws created by the New York legislature - are not for the courts to abide when we are concerned.

One more argument in favor of introduction of peremptory challenges to judges in New York

How much is too much for the judge to HAVE to recuse?

The U.S. Supreme Court has ruled in 2009 that accepting $3 mln in an election campaign and then casting a decisive vote to overturn a $50 mln dollar judgment on appeal for the parties who made the $3 mln contribution is a violation of opponent's due process of law.

So, refusal to recuse is not always only up to a judge.

Yet, New York court continued to believe it is.

I repeatedly catch judges in ex parte communications.

Some recuse, some adamantly continue - and retaliate.

It is nearly impossible to get through to the U.S. Supreme Court.

The U.S. Supreme Court does not consider cases interesting or important, oftentimes unless the issue has hit the press big times - or, as in Judge Benjamin's case, the issue is buying a judge through a campaign contribution for $3 mln.

So, if somebody bought YOUR judge for less - that somehow becomes less of a due process problem?

Or, if somebody engaged in an ex parte communication with the judge for a period of time suggesting discussion of the merits and not simply "scheduling" - it is still in judge's hands and "discretion" to decide whether he must or must not recuse, even though the court rules and the U.S. Supreme Court cases mandate recusal where there is an appearance of impropriety.

Yet, judges have a very permissive view of what does or does not appear improper to a reasonable and objective member of the public.  In fact, judges believe that THEY are that reasonable and objective member of the public, and that they are objective enough to analyze their own conscience (where existence of such conscience is unprovable and unverifiable).

And the stubborn refusal of clearly conflicted judges to recuse from cases where ex parte communications occurred, whether with judges directly, or with their "chambers", is one more argument in favor of introduction of:

1) peremptory challenges of judges;
2) voir dire of judges who are making any factfinding decisions.

A rule of Judge Ferris Lebous: when caught red-handed in an ex parte communication - attack the challenger

In the case Neroni v Harlem in Delaware County Supreme Court, Index No. 2011-547, my husband has sued Richard Harlem, his law partners, his law firms and his Mokay clients for fraud - based on their inconsistent statements between two courts, Supreme and Surrogate in the probate proceedings of the decedent Andrew Mokay.

Of course, since then, the inconsistent statements have grown many times, but at the lawsuit was contained to these two sets.

The now running from the office he sought so much Judge Carl F. Becker dismissed that lawsuit at the pre-answer stage, with sanctions against my husband and I for frivolous conduct - specifically, for invasion of privacy of members of a conspiracy to defraud a court, where all members of the conspiracy were either attorneys, or public figures working for the court system - a sitting Supreme Court justice, his law clerk and his secretary (in the future, his wife).  

Names of these people were Robert Harlem (the judge and father of Richard Harlem, Robert Harlem was also admittedly the mastermind of the frivolous 8-year-long Mokay litigation that becomes unglued after the ex parte secret trial as we speak), Robert Harlem's court secretary (and future wife, now widow) Irene Mann/Harlem, Robert Harlem's law clerk Dennis Dineen who now is still employed by the State of New York and paid by the taxpayers.

The lawsuit referenced open public records of the Otsego County Surrogate's Court, showing that what Richard Harlem and his father did in the Mokay litigation, defrauding my husband and several courts, was not an accident or mistake and that they've done it before and escaped unscathed.

Judge Becker has never been known as a good theoretician in law.  Neither was his law clerk.

That, combined with his hatred of my husband and myself, resulted in a stunning decision where he punished both of us for referencing open public records as evidence against the Harlem defendants and the Mokay defendants.  

Apparently, in Becker's view, referencing open public records was somehow invasion of privacy of retired judge Harlem, his wife (not a party to the proceeding) and his former law clerk (not a party to the proceeding).

The sanctions also showed an interesting side of the court-created rule of frivolous conduct - that judges have authority to protect individuals who are not both parties in litigation and not parties to litigation and thus become advocates in the proceedings.

The sanctions were imposed at the stage of pre-answer motion to dismiss where all statements of my husband (plaintiff in that action) were PRESUMED TRUE, and when all pleadings were supposed to be reviewed in the light most favorable to my husband.

Decisions on a pre-answer motion to dismiss are not deemed decisions on the merits.

Yet, Judge Lebous treated Judge Becker's decision as a decision on the merit, refusing to vacate it despite the fact that Judge Becker clearly exceeded his authority by sanctioning us for allegedly stating something untrue - when the law presumed the statements to be true - while dismissing the case without reaching the merits in the pleadings.

At the time he made the determination, Becker was a participant in the fraud that was alleged in the Neroni v. Harlem and was clearly disqualified from making any rulings.

When a judge exceeds his authority, an appeal is not necessary, an order made in excess of authority can be addressed by a simple motion to address lack of jurisdiction to make certain decisions.

That motion was made.

That motion was rejected by Judge Lebous on the basis of "collateral estoppel", as if the decision of Judge Becker was on the merits.

And it is clear WHY Judge Lebous fought so vigorously and un-valiantly to have us punished and to stick attorney's fees for fraudsters against us:

Judge Lebous, same as Judge Becker, same as Judge Dowd, engaged in ex parte communications with Richard Harlem's representative before he made his decision.

Of course, Judge Lebous tried to deny it by stating that his "chambers" were authorized to discuss "scheduling" with all attorneys.

Yet, when Richard Harlem's attorney provided a billing statement to the court, the billing statement did not indicate that the 12-minute (!) discussion with Judge Lebous' "chambers" was of scheduling.

Seriously, an attorney does not need to discuss "scheduling" with the judge's "chambers" twice, and especially at the time when the court's jurisdiction abated due to the death of that attorney's client (Robert Harlem - client of David Cabaniss) and when David Cabaniss lost authority to represent that client.

Moreover, discussing anything with the judge's personnel is an equivalent of discussing it with the judge himself - yet, Judge Lebous happily made a distinction in his order, stressing the work "chambers".

That means, for purposes of prohibition on ex parte communications, in Judge Lebous' view, that he can allow his personnel (including the law clerk who authors his decisions) to engage in ex parte communications - and then claim that he is free and clear and did not engage in the ex parte communications HIMSELF.

Of course, if the ex parte communications occurred through an agent of a judge, that did not make it any less improper than as if the judge did it himself.

Richard Harlem's attorney "explained away" the 12-minute communication with Judge Lebous' "chambers" by stating that he allegedly discussed with Judge Lebous' "chambers" certain scheduling.

Yet, at the time of the discussion, Judge Lebous had no authority to do anything in the case because at that point, one of the parties to the action (Robert Harlem) died, and his attorney David Cabanis was no longer his attorney, he lost his authority to represent anybody in the action until the substitution of Robert Harlem's estate into the action.

At the time of the ex parte communication, no such substitution was made, so no scheduling discussions could be held.

Moreover, the billing statements, submitted with an affirmation that they were true and correct and that they were "business records", did not require additional explanation (being "business records"), and clearly and unambiguously indicated that what was discussed was NOT scheduling, but was the MERITS of the case - which is within the core of the prohibition of the ex parte communication between judges and attorneys.

Of course, Richard and Robert Harlem's attorney David Cabaniss was caught, through his own billing statements, in ex parte communications not only with Judge Lebous' "chambers" - twice - but also with Judge Becker's "chambers", he talked with Judge Becker's "chambers" for 12 minutes on the day before the motion hearing.

Of course, Richard Harlem and his "trial counsel" James Hartmann were caught since then in ex parte communications with Judge Dowd's law clerk - who is authoring Judge Dowd's decisions and making and communicating e-mail orders for Judge Dowd.

If ANYBODY ELSE would be caught, repeatedly, in ex parte communications with judges in related actions - that attorney would be sanctioned and disciplined.

Not Richard Harlem or attorneys who he hires - because Richard Harlem very obviously has a special status in court, not only as a judge's son, but also as the landlord of many years for the influential Republican Senator James Seward - whose attention is now catered by Becker's buddy and aspiring successor Porter Kirkwood.

Yet, we have seen lately several people who were deemed "unsinkable" and yet who took a dive toward "early retirement"/resignation (Becker) or federal criminal charges for corruption (Silver and Skelos) because, very apparently, New York state does not recognize corruption in the government as a crime and assigns the New York State Attorney General to represent the corrupt officials instead of investigating and prosecuting them.

The feds are currently vigorously investigating corruption in New York State government.

I turned into the Federal Trade Commission the actions of John Casey, the disciplinary prosecutor of my husband AND of Richard and Robert Harlems, who sold his prosecutorial discretion in exchange for the right to have Richard Harlem and Robert Harlem as paying clients of his law firm.

By endorsing that deal by ordering my husband - and myself - to reimburse Richard Harlem for the bribe he paid to my husband's disciplinary prosecutor, after TWO ex parte communications with Richard Harlem's attorney and John Casey's law partner David Cabaniss  - Judge Lebous became a part of that federal crime of theft of honest services of a disciplinary prosecutor.

John Casey, partner of David Cabaniss, and, through that partnership, attorney for Richard Harlem - at the same time John Casey was supposed to investigate and prosecute Richard Harlem as a disciplinary prosecutor, on my husband's and my own complaint.

But once again - with all the support from the former disciplinary prosecutor, with all the support from the law firm Hiscock & Barclay employing NY Senator Neil Breslin, with all the support of Richard Harlem's landlord NY Senator James Seward, relying upon support of a New York Senator may prove imprudent, in view of suddenly rising statistics of NY Senators being charged and indicted for corruption by the feds.

So,  if I were Richard Harlem, I would not be that secure in the feeling that he is "unsinkable" because he is backed up by James Seward and by the law firm of Senator Neil Breslin...

Being backed up by a New York Senator may prove feeble protection these days...

As to Judge Lebous - an appeal will show just how correct Judge Lebous was in deeming his "chambers" as being separate from himself for purposes of ex parte communications, and I wonder what would the feds and the NYS Commission for Judicial Conduct will say about confirmed ex parte communications between Judge Lebous' "chambers" (as well as Judge Beckers, and Judge Dowd's) with Richard Harlem and his hired hands.

On the other hand, at the background of Judges Becker, Lebous and Dowd who were caught in ex parte communications and retaliated for being caught through court cases,  Judge Christopher Cahill of the Ulster County Supreme Court who "only" threatened to turn me into the disciplinary committee for challenging him on the spot as soon as he completed an ex parte communication with the opposing counsel Dolores Felice (Delice) Seligman of Kingston, NY, but recused from the case - seems nearly as a paragon of virtue (even though the NYS Court Administration destroyed court camera footage of Judge Cahill's misconduct in order not to give it to me on a FOIL request).

Well, well, well...  Aren't we all in the judicial system feeling insecure when we are confronted with a clear EVIDENCE of misconduct...

Judge Lebous' decision in trying to make a "distinction without a difference" between ex parte communications with "chambers" vs. himself surely qualifies (in my opinion) as such insecurity.

Tuesday, May 26, 2015

Judge Lebous: the Neronis should pay the fraudsters' attorney fees for "invasion of privacy" of the late judge Robert Harlem and his co-conspirators in fraud, for referencing public records of that fraud in court papers

Judge Ferris Lebous continues the legacy of the soon-to-be-retired Judge Becker by imposing attorney's fees, in the amounts of thousands of dollars, with a severely restricted deadline for paying them, for "frivolous conduct" consisting of violation of privacy of public officials by exposing their misconduct by referencing public records (open court records and records about their position and salary, also publicly available) in court proceedings.

Neither Judge Lebous nor Judge Becker paid any attention to the fact that such conduct is perfectly legal.

As to both Judge Lebous and Judge Becker there are documents showing that there were ex parte communications with their "chambers" by Richard Harlem's attorney for lengthy time and without any explanation, before the decisions imposing sanctions and/or attorney's fees were made.

It is obvious that, for Judge Lebous, it does not matter that he is imposing sanctions upon us for lawful conduct - as long as he imposes sanctions upon us, because my husband exposed Judge Lebous' ex parte communications with Richard Harem's attorney, and we are thus enemies of Judge Lebous that must be punished no matter what.

I definitely refuse to be used as an ATM machine for Richard Harlem and his crew, especially because one of the Mokay clients of Richard Harlem has recently came clean and undid the whole Mokay litigation, after the ex parte secret bench trial, and exposed the Mokay litigation (based on which Lebous imposed the sanctions) for the major fraud that it is - with just one sworn statement, posted here.

As long as a judge violates the law without "impure motives", that's ok

Here is what the website of the New York State Administration says about retirement of attorneys from the practice of law:

So, full-time judges are deemed retired from the practice of law and may not practice law as a requirement of two provisions:

I. New York State Constitution:

    • Article VI paragraph 20.b(4)
  • b. A judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate's court, judge of the family court or judge of a court for the city of New York established pursuant to section fifteen of this article who is elected or appointed after the effective date of this article may not (4)  engage in the practice of law, act as an arbitrator, referee or compensated mediator in any action or proceeding or matter or engage in the conduct of any other profession or business which interferes with the performance of his or her judicial duties.
  •              "(2) In addition to any temporary assignments
             to which a judge of a city court may be subject
             pursuant to paragraph one of this subdivision,
             such judge also may be temporarily assigned
             by the chief administrator of the courts to the
             county court, the family court or the district court
             within his or her county of residence or any
             adjoining county provided he or she is not
             permitted to practice law."

II.  22 NYCRR 118.1(g)

Yet, despite the above requirements of the law, judges give legal advice left and right to litigants, their attorneys, engage in secretly giving legal advice to friend and family members and, when caught red-handed, claim that they really did not do any harm, as Judge Robert Harlem said in his affidavit to the Otsego County Surrogate Nettie Scarzafawa (see my blog post the Blanding saga).

This is what the retired Judge Robert Harlem said in his affidavit to the Otsego County Surrogate's Court:

Apparently, it is not enough for the judge that he has violated his constitutional oath of office and the court rule pertaining to full-time judges deemed to be "retired" from the practice of law, 22 NYCRR 118.1(g), with all consequences of such retirement, that a retired attorney may not continue to practice for a fee.

The fee of Judge Harlem from Beatrice Blanding was tremendous see the will he has drafted with multiple bequest to himself listed in the Blanding saga post.

Yet, to Judge Harlem, violating the State Constitution, the court rule and his own oath of office to uphold the State Constitution is not bad enough, and he is trying to justify himself by his closeness to the decedent and by not having "impure motives".  Obviously, self-bequests of hundreds of thousands of dollars worth of property was not impure motives in the late Judge Harlem's eyes.

Judge Nettie Scarzafawa accepted that argument, did not sanction the retired judge and her own predecessor for unauthorized practice of law and defrauding the court, and, soon after that decision, stepped down from the bench in 2000, allegedly to take care of her elderly mother.

Retired Judge Nettie Jean Scarzafava was married to John Scarzafava until his death in 2014.  John Scarzafava was hired by Richard Harlem as a trial attorney in the Mokay action, a complete discqualification of which Richard Harlem knew. 

Richard Harlem also hired the law firm of my husband's disciplinary prosecutor (who was supposed to prosecute Richard Harlem and his father on my husband's complaint about their fraud).

John Scarzafava had the good grace to eventually refuse to represent the Mokay plaintiffs in the Mokay saga.  

John Casey's law firm, Hiscock & Barclay of Albany, NY, didn't have such good grace, and continue to claim attorney fees (which Judge Lebous, retaliating against exposure for his personnel's ex parte communications with Richard Harlem's attorney, granted).

John Casey and his law firm are exposed at this time to liability for antitrust violations, based on the U.S. Supreme Court's new pronouncement in North Carolina Board of Dental Examiners v. FTC in February of this year.  We will see how that lawsuit will proceed.

The interesting part about availability of discipline against judges practicing law is that attorney disciplinary committees refuse to prosecute them, claiming that any conduct committed by a judge during his or her judgeship is subject to only judicial discipline and not attorney discipline.

An even more interesting part is that retired judges who discharge judicial functions as judicial hearing officers are not subject to judicial discipline, because they are no longer sitting judges (and the New York State Commission for Judicial Conduct claims it does not have jurisdiction over their discipline) and are not disciplined by attorney disciplinary committees, because for attorney disciplinary committees such retired judges appointed as referees or judicial hearing officers are still "judges" and, as such, are beyond attorney discipline.

Attorney discipline and judicial discipline in New York are two fascinating subjects...

Now, try violating the law and then appearing in a court of law, admitting the violation, but claiming that you really did not have impure motives to violate the law.

See how far you will get with that argument if your are not a judge.

Of course, you should choose to run this experiment in your mind - if you are not a judge.  It may have dire consequences for you, because not only your lack of "impure motives" does not matter if you violated the law, and knowledge of the law that you violated is PRESUMED in EVERY PERSON - and, of course, it was presumed in a Supreme Court judge and Chief Administrative Judge of the 6th Administrative District, as Robert Harlem was.

So - once again, let's raise our glasses for the rule of law in the State of New York that exists in our aspirations - and nowhere else.