"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.

Tuesday, May 26, 2015

If you ain't done anything wrong, why hide it? NYS OCA stalls release of data on attorney discipline and attorney disciplinary committees

On April 22, 2015 I filed the following Freedom of Information Request with the New York State Office of Court administration (hereinafter NYS OCA):

On April 27, 2015 I received the following preliminary response from the NYS OCA:

Here is the ONLY record that I received from NYS OCA pursuant to this FOIL request:

While providing some interesting and sometimes revealing information as to the numbers of attorneys per county in New York State, NYS OCA did not release to me matching information as to attorney discipline per committee, or documents pertaining to appointment of members of attorney disciplinary committees, in other words, information that would have brought some light as to how these clandestine bodies of inquisition operate and who they target for discipline.

I have a belief, based on the data so far available to me that the committee members are hand-picked by the courts for reasons other than protection of consumers, and I have a reason to believe that such committees act not to protect consumers of legal services from bad attorneys, but to protect the market of legal services for themselves and their friends from competitors and to eliminate independent civil rights and criminal defense attorneys.

The stalling of information on this topic tends to prove the collective guilty conscience of the Court Administration and only confirms my beliefs.

In addition to the above sheet of paper with statistics, NYS OCA referred me to websites of attorney disciplinary committees which list names only of the current members of disciplinary committees (and disciplinary committees for the Appellate Division 2nd Judicial Department do not do even that).

Such websites do not list members of such committees dating back 10 years, nor do they provide on their websites orders of appointment of each member or staff attorney, nor do they provide on their websites documents supporting such appointments.

Once again, where an essential and meaningful piece of information is sought through a FOIL request, NYS OCA, the organization that is responsible for dispensing justice in the State of New York,  stalls information.

So, the tactic of the judicial system is:

  •  to stall release of public records as to how the disciplinary committees are populated and how they operate;
  • to preclude public access to disciplinary proceedings, even if it is directly provided by law and the attorney who is the subject of such proceedings wants it and requests it;
  • to preclude public access to the files of disciplinary proceedings - even when it is directly provided by law, even after the conclusion of the disciplinary proceedings, as it happened in my husband's case, where I represent my husband in an ongoing civil rights lawsuit to gain access to his own disciplinary file - 4 years after my husband lost his license and after his file became open not only to him, but to anybody who wants to look at it, pursuant to Judiciary Law 90(10).

I filed this FOIL request parallel to my complaint/petition to the Federal Trade Commission requesting investigation of how disciplinary committees in New York operate.

Chief Judge Lippman created a statewide commission this year, his last year in office, to investigate, research and ensure uniformity, efficiency and fairness of attorney disciplinary proceedings in the State of New York (while populating the commission in a peculiar way by people not interested in pursuing the needs of the majority of actual and potential consumers of legal services).

The creation of the statewide commission oddly coincided in time with the litigation in the U.S. Supreme Court that has ended, surprisingly, in a victory against anti-competitive interests permeating licensing boards, stripping their members of immunity for liability in lawsuits for violation of federal antitrust law.

The statewide commission, as I see, was created not so much to help the consumers - if that would be the case, a fair cross-section of consumers of legal services would have been included into the commission and would have had a decisive vote in it - but for the embattled legal elite to get together and decide how to preserve the status quo in a world that quickly gravitates towards deregulation.

While the statewide commission tries to devise ways of preserving the status quo, and while the FTC investigates my complaint about New York disciplinary process as a tool to lock the market and preserve unfair conditions for consumers favoring market regulators who are at the same time politically connected providers of legal services, the NYS OCA tries to prevent release of information that would help the FTC investigation and undermine the efforts of the statewide commission on attorney discipline to pretend they are doing something opposite to what they are interested in doing.

How fitting.

Of course, I have filed an administrative appeal for the denial of my FOIL request.

I will publish the NYS OCA response to that appeal.

Stay tuned.

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