"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.

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?

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