"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, June 5, 2015

The rule of law is a chameleon - in Delaware County courts

Before the Mokay trial (see my blog post "the Mokay sage", my April posts and posts that can be obtained by putting the keyword "Mokay" in the search box on this blog on the right of the text) I tried, unsuccessfully, to obtain from Judge Dowd an order forcing Richard Harlem and his law firm to file with the court two boxes of trial exhibits for my review when Richard Harlem was blackmailing me that I had to agree to review of those records before trial at this office, under the supervision of his paralegal, which supervision  Richard Harlem was planning to charge against my client at the rate of $100/hr, because the alternative that Richard Harlem threatened me is to have those records be reviewed at trial, and charge against my client the hourly rate of two trial attorneys - himself and James Hartmann.

I have a phone recording indicating that, as of the time of the threat against my client by Richard Harlem that my client will have to pay for review of the exhibits at the rate of two trial counsel if I refuse to agree to review of the same under the supervision of Richard Harlem's paralegal, at the price tag to my client of over $100/hr, James Hartmann considered himself the sole trial counsel in the Mokay trial and was unaware that Richard Harlem was a second trial counsel in that case.

So, two weeks before trial, James Hartmann does not have trial exhibits in his possession, and does not know that the attorney who has trial exhibits in his possession (and who was the only testifying witness in the case) was the "second trial counsel" and added himself as a trial counsel obviously to pad up the bill of legal fees against my client (the only damages claimed in the Mokay trial were legal fees of Harlem& Jervis, the law firm that engaged in a conflicted representation and, by law, was not entitled to one penny of legal fees - if the law is to be applied, which is not likely in Judge Dowd's court).

The January 2015 ruling of the Appellate Division positioning the decedent Andrew Mokay (Estate) as a defendant in the Mokay action and the post-trial statement of plaintiff Daniel Mokay acknowledging that his father's misconduct was at the core of the Mokay proceedings, made the Mokay trial on damages a farce and waste of taxpayer money and of judicial resources.

The reason was that all damages claimed in the Mokay trial were attorney fees of attorneys representing, since February of 2007 (long before the Mokay case started), the decedent's Estate and who must, therefore, represent the interests of the decedent - yet the decedent's own son (and his "fiduciary" - Executor of his Estate) is accusing his own father of misconduct pertaining to the probate proceedings where Daniel Mokay is supposed to represent his deceased father's will - go figure.

By the way, I asked to consolidate (merge) the probate proceedings with the Mokay proceedings long time ago, because it is unconscionable that two testamentary instruments are litigated in two parallel court proceedings, and because conflicts of interest of Richard Harlem would have been much more visible had the proceedings been consolidated.

Judge Becker refused to consolidate claiming that consolidation will somehow "confuse" the issues - rather, it would have shown that Judge Becker was disqualified from presiding over the Mokay case as a witness, and a witness clearly committing misconduct behind the defendant Frederick J. Neroni's (my husband's) back.

Yet, when two actions were filed addressing the potential judgment in the Mokay case - an action for contribution from the decedent, since the Appellate Division indicated he was one of the tortfeasors, and a petition to the Surrogate's Court to stay probate proceedings, stop distribution from the Estate and make Richard Harlem return moneys so far obtained from the Estate, to make the Estate able to meet the possible judgment for contribution from Mr. Neroni - things started to unravel in a most interesting way.

Judge Mulvey suddenly decided to remove the probate proceedings from the Surrogate's Court into the Supreme Court - but neglected to notify me, my husband's attorney on the petition to the Surrogate's Court, of the order of removal.

The judge assigned to the removed case refused to abide by the order of removal and assignment and continued to act as if the case was never removed, to the point of advising clerks in two courts (Surrogate's and Supreme) that the order of removal was "erroneous".

To this day I did not receive a correction of that allegedly "erroneous" order, but the Delaware County Surrogate's Clerk did not transfer the case to the Delaware County Supreme Court, in defiance of the order of removal, the Delaware County Clerk refused to assign an index no. to the case preventing me from filing any pleadings (including an affidavit of service or motions) in the court where the case was removed to, and the Delaware County Supreme Court clerk undertook to advise me by letter her own opinion, obtained after her conversation with the judge assigned to HER court, that the order of assignment and removal - the only order in existence at this time - is, obviously in her own opinion, erroneous.

One does not need soap operas on TV, really - the Mokay saga in courts of the State of New York (and federal courts) is a real-time real-life soap opera.

Now, let's get to the pivotal issue.

In New York, by well settled law, an attorney who represents two parties of the same conflict in the same litigation, is not entitled to any attorney fees.

Not to one penny, not to one fraction of a penny.

Richard Harlem and his law firm undertook representation of the decedent Andrew Mokay in February of 2007, several months before Richard Harlem and his law firm started the Mokay litigation against my husband, where the Appellate Division, as of January 2015, acknoweldged that the decedent was the wrongdoer against his children - and Daniel Mokay confirmed that in his affidavit in the action for contribution as of early May, 2015, after the ex parte Mokay trial.

So, it is clear as day that no matter how many boxes of exhibits Richard Harlem tosses at courts to prove his efforts to represent both sides of the conflict, by law Richard Harlem and his law firms are entitled to exactly nothing in legal fees.

Since only Richard Harlem's legal fees were claimed as damages, that means exactly no damages.

And that means that the Mokay case had to be dismissed at commencement, and Richard Harlem sanctioned for frivolous conduct - something that had to be done in the summer of 2007, 8 years ago.

Judge Dowd knew about the decision of the Appellate Division making the trial unnecessary and requiring him to apply the law and to dismiss the case because no attorneys fees/damages could be awarded for representation of Richard Harlem.

Yet, doing so would upset Richard Harlem's political connections, such as Senator James Seward to whose Oneonta district office Richard Harlem is a landlord, Senator Neil Breslin (part of the law firm representing Richard Harlem), and that is only the tip of the iceberg of Richard Harlem's political connections that is available through public records.

And, dismissal of the Mokay case will result in an instant motion to restore Mr. Neroni's law license that will have to be granted as a matter of law - something that Judge Dowd is apparently bent to prevent, no matter what the law says.

So, Judge Dowd (who, personally or through his law clerk or secretary had a documented ex parte communication with Richard Harlem's office before trial) decided to disregard that appellate decision, and to disregard the trial witness subpoenas served upon him, his law clerk and his secretary, which subpoenas completely disqualified him from presiding over the case (because Richard Harlem had the audacity to charge his clients - and my husband - for ex parte communications with Judge Dowd, so Judge Dowd and his personnel WERE, indeed, proper witnesses in the trial on damages).

I already wrote in this blog that Judge Dowd, a subpoenaed witness in the case, pronounced the subpoena served upon him "a nullity", disregarded a medical diagnosis and medical leave of the defense trial counsel, dismissed the convened jury pool and proceeded to preside over an ex parte trial himself, admitted whatever exhibits Richard Harlem had, the two boxes of them, in bulk, without review of what is in those exhibits, at less than 19 seconds per multi-page exhibit, and is now hiding the exhibits from my review by (1) denying me access to exhibits already received by the court; and (2) refusing to issue a written order documenting his denial to me of access to the exhibits.

Previously, Judge Dowd's law clerk Claudette Newman, in an email to me, indicated that the judge has no authority to issue orders in response to a letter - a letter where I asked the court to order Richard Harlem to file the "certified records" with the court for my review (and that had to be done in the first place because the alleged exhibits were allegedly obtained from Delaware County Clerk and should have been filed with the court before trial and kept in court to prevent the taint to the certification).

So, Judge Dowd had no authority to review my letters and issue orders based on them, indicating to me that I had to make a motion.

Motions Judge Dowd simply did not accept from me, forcing me to file applications for Orders to Show Cause and then disregarding them.

So, while engaging in all of those shenanigans that Judge Dowd was certainly not authorized by law to engage into, Judge Dowd indicated to me through his law clerk that his authority is somehow restricted because he allegedly had no authority to issue orders based on letters directed to him.

Yet, the same Judge Dowd did, apparently, have authority to issue orders based on letter submissions by Richard Harlem (son of a judge) and by the New York State Attorney General's office - in the same case, multiple times!

Moreover, recently I attended a deposition in yet another case where Judge Dowd presided, where the wife of a powerful administrative judge, Ellen Coccoma, wife of Michael V Coccoma, Chief Administrative Judge of Upstate New York (a judge who holds authority to give or not to give to Judge Dowd post-retirement perks, and Dowd is close to retirement) failed to produce to an individual she claimed she subpoenaed through a court order, the court order that Ellen Coccoma has never served upon that individual (who could only be subpoenaed as a third party witness, and such subpoenaes require special protections and notice requirements).

The reason for this "failure to produce" was actually easy - the individual (who happened to be my husband) was demanding from Ellen Coccoma to produce the order along with the proof of service upon him, and the motion papers upon which the order was granted, as well as the notice given to him of such a motion being made.

The truth of the matter was that, had Ellen Coccoma produced the papers my husband was asking for, it would have been revealed that Judge Dowd made an order upon her LETTER - and an order with a caption indicating that Ellen Coccoma's client who is dead for 4 years (!) is still alive.

And, that no motion has been made by her - which would require her to actually pay a filing fee and file the motion with the Delaware County Clerk.

Instead, Ellen Coccoma simply sent a letter to Judge Dowd's chambers asking for an order - and Judge Dowd obliged.

But wait - isn't issuing an order based on a letter exactly what Claudette Newman told me that Judge Dowd is not authorized by law to do?  

So, let's put our ducks in a row once again.

The rule of law proclaimed by Judge Dowd states that Judge Dowd has no authority to issue orders based on letters.

Yet, this rule apparently has significant exceptions as follows:

  • if the author of the letter is a son of a judge (like Richard Harlem);
  • if the author of the letter is New York State Attorney General (counsel for Judge Dowd in pending litigation, and counsel for all judges in the State of New York in and out of courts);
  • if the author of the letter is a spouse of a judge, especially of a judge who holds the key to lucrative post-retirement financial benefits (or lack thereof) to Judge Dowd;
  • if the letter asks to do something against the Neronis;
then the rule does not apply.

Well done, Judge Dowd.

Long live the rule of law.

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