I already blogged about the composition of the Commission and as to how the Commission scheduled the so-called "public hearings" where both the composition and how the "public hearings" are scheduled suggests that the Commission is not serious about its role in changing the situation where attorney discipline is used not for protection of the public, but as a shield for politically connected attorneys and as a sword against critics of such attorneys' misconduct and against misconduct in the judiciary and other branches of the government.
I would like to note once again the point that I made earlier in my blogs in connection with discussion of the case North Carolina Board of Dental Examiners v Jacobs, a case decided by the U.S. Supreme Court that was vigorously opposed by multiple bar associations as bringing about the doom to the way discipline is imposed - by stripping the so-called immunity from lawsuits for actions violating anti-monopoly federal laws of the United States against members of disciplinary committees who are practicing attorneys and players in the same market themselves.
In that blog, posted before the U.S. Supreme Court has made its decision actually stripping the immunity for monopolistic activities of attorney members of disciplinary committees, and before I filed the currently pending request with the Federal Trade Commission to investigate and prosecute all attorney disciplinary committees in New York State for monopolistic activities, as the U.S. Supreme Court provided in North Carolina Board of Dental Examiners v Jacobs, I raised an issue pertaining to the oral arguments in that case that I've heard (audio recordings of oral arguments before the U.S. Supreme Court is publicly available on the Internet).
The issue was raised by one of the U.S. Supreme Court judges - isn't it appropriate to have experts "serve" on such committees, and who other than dentists (or, in the case of the Statewide Commission - attorneys) would know better the ins and outs of the practice of their profession, to see whether an attorney violated rules of ethics and of professional conduct, whether discipline is necessary, and what kind of discipline is necessary.
My response to that question - then and now - is:
Problem No 1 - the role of an expert in any litigation is that of EDUCATOR OF THE FACTFINDER, and only when the factfinder NEEDS such education.
An expert whose knowledge is being used in litigation to inform the factfinder may never BE the factfinder, may never be conflated with the factfinder.
In fact, in all jury trials, attorneys for parties painstakingly weed out attorneys and legal experts from the jury, so that the factfinders make their determinations only on evidence presented, and not be swayed by pre-conceived notions of experts on the jury.
Problem No. 2 - an expert in New York state is not allowed to testify on the ultimate issue of litigation. It is a settled rule. Putting an expert as part of the factfinder undermines that rule.
Problem No. 3 - Moreover, even when the expert's knowledge is required, that expert must be NEUTRAL - another must.
When the so-called expert has a vested financial interest in the market he is testifying about, when the expert is deriving income from that market as a participant in that market, his or her testimony is tainted and is inadmissible as a matter of due process, fairness and equity.
Expert neutrality is a well settled rule.
Problem No. 4 - there is no jury to sway on that Commission, all other members-factfinders have vested interest in preserving the status quo, as bad and as stinking as it is at this time.
With that in mind, I would like to focus on two individuals chosen by Judge Lippman to "serve" on the Statewide Commission for attorney discipline.
One is professor Stephen Gillers.
The other is professor Hal Lieberman.
I was educated in law school in legal ethics on books of professor Stephen Gillers. Those books are still actively sold on Amazon.com and, I am sure, law students all over the country are being taught about "legal ethics" based on Professor Gillers' law books.
The problem with professor Stephen Gillers on the Commission is problems No. 1 and No. 2, and, I would say, to a certain degree No. 3 - an expert-factfinder, an expert on the jury. Even if the factfinder would consist, as it should have, of a cross-section of members of the public, since the purpose of attorney discipline is protection of the public, presence of an expert as part of the factfinder rather than as an expert whose opinion is consulted by the factfinder without including the expert into the decisionmaking.
The biography of Professor Gillers suggests that he derives his livelihood from teaching about regulation of the legal profession.
Thus, professor Gillers will not be the one to suggest what the public needs to receive truly independent legal services - a full deregulation of the market of legal profession and liberation of the legal professionals from the slavery of brown-nosing the judiciary under the fear of losing their livelihoods that is in the judiciary's hands, and to turn a blind eye to rampant judicial misconduct occurring in practically every court in this country, for the same fear of losing their livelihood.
Instead, professor Gillers publishes articles such as "Lowering the bar" where he indicates that the public is not properly protected by attorney discipline - but makes no mention whatsoever in that 58-page article of the constitutional infirmities of attorney discipline procedure in New York, its failure to protect the public because of its selective non-enforcement to influential and politically connected attorneys, as well as attorneys who are family, employees or friends of influential people, including judges, of the rampant bad faith and self-interest in the attorney disciplinary committees.
In that same article, "Lowering the Bar", (available on the Internet for free in pdf format, please, look up the article, it's worth it - but there is no way I can interlink on this blog a pdf document downloadable from that website), which was highly praised in the press, Professor Gillers expresses a belief that attorney discipline in New York is imposed mostly for three reasons:
- violence;
- various types of dishonesty in and out of court;
- neglect of clients.
- elimination of a successful solo independent competitor by the members of the disciplinary committees, practicing attorneys;
- elimination of a critic of judicial misconduct, a civil rights or a public defense attorney
Since Professor Gillers closes his eyes as a scholar to these important topics which should be core topics in protection of the public from truly bad attorneys, there is no reason to expect Professor Gillers to stand up to these issues as a member of the Statewide Commission.
The problems that I see with appointment of Professor Hal Lieberman, adjunct professor of the Columbia Law School, (my personal opinion, protected by the 1st Amendment, as it is on matters of public concern, protection of the public from incompetent attorneys while ensuring true access to courts to all members of the public guaranteed by the 1st Amendment of the U.S. Constitution) are problems No. 1, 2 and, most prominently, 3.
Professor Hal Lieberman was a trial counsel in New York attorney disciplinary committee for the 1st Department for 13 years, as he discloses in his biography for the book on attorney discipline that he sells on Amazon for $209.00 a piece, and is and has been for decades a practicing attorney representing other attorneys before that same disciplinary committee.
In other words, Professor Lieberman is an insider of the attorney disciplinary system deriving his income from the system, and as such, in my opinion, he fails on the issue of expert neutrality - and is especially dangerous as an expert-factfinder whose authority may sway the factfinders.
While Professor Lieberman did raise publicly issues whether attorney disciplinary proceedings in New York are fair, same as Professor Gillers, Professor Lieberman will not seriously consider protection of the public - because such a stance will run contrary to the interests of his paying clients whom he represents before the disciplinary committees and who provide for adjunct Professor Lieberman's livelihood.
Moreover, Professor Lieberman made a statement in one of his articles or blogs which I found disturbing, in one of his blogs, that the fact that disciplinary committees win 90% of disciplinary cases somehow is evidence of attorney discipline being administered "vigorously" and "effectively".
Yet, one area where disciplinary prosecutors do not dedicate any of their otherwise "vigorous" and "effective" work is - criminal prosecutors (and other influential attorneys, of course).
If that is true, then 95% or more of criminal convictions in this country is evidence of vigorous and effective work of prosecutors. Yet, prosecutors (also licensed attorneys subject to attorney regulation from which Professor Lieberman derives his income) are subjected now to the increased public concern and awareness of their rampant misconduct.
Moreover, the system of criminal justice rendering 95% of criminal convictions and the highest in the civilized and uncivilized world rate of incarceration per capita of population in a for-profit run prison system is the target of increasing criticism around the world - and, most recently, in the presidential address.
Hal Lieberman, a professor, a lawyer and an insider of the disciplinary system, simply cannot be so naive as stating that 90% success rate (and maybe higher) of disciplinary committees in New York is the result of those committees' hard effective vigorous work - and not the crooked way the system is set and the even more crooked way in which the system works, whitewashing the high-and-mighty attorneys and dedicating the "limited" resources in a seemingly unlimited way against whistleblowers of judicial misconduct, solo criminal defense and solo civil rights attorneys.
I have written on this blog extensively, with documentary examples, of bad faith, fraud, incompetence and outright political retaliation in attorney disciplinary committees.
Multiple attorneys cited in multiple lawsuit rampant misconduct of attorneys in disciplinary committees.
Recently, a lawsuit was filed as to the policy of the 1st Department disciplinary committee, where Professor Lieberman worked for 13 years, of a long-standing policy of white-washing and destroying files and complaints against politically connected attorneys.
Recently, I FOILed statistics on attorney discipline in New York. New York Court Administration, the same court system under the guidance of the same Judge Lippman, denied me access to that statistics and to records of appointments to the disciplinary committees.
It appears that New York court system - intentionally, in my view - does not keep statistics as to whether discipline is imposed upon solo attorneys, civil rights attorneys, criminal defense attorneys disproportionately to attorneys from large law firms employing relatives of judges.
Archives of complaints in the disciplinary committees are not preserved. I know it for a fact as to the 3rd and 4th Department where I have personal experience with denial of access to those files, on my own behalf and on behalf of my client (and husband), and with denial of my complaints against attorneys working for or connected to the government, with the letters of denial being template letters bearing no file numbers of attorney names and preventing the tracking of the disciplinary files of such attorneys.
In fact, in the 1st Department disciplinary committees, according to an insider's lawsuit of attorney Anderson, complaints against politically connected attorneys are destroyed and whistleblowers of that misconduct, such as attorney Anderson, fired.
Lawsuits against disciplinary attorneys are routinely dismissed on grounds of "judicial" immunity. Yet, disciplinary attorneys act as prosecutors - part of executive branch - in courts which legislate, adjudicate and, through disciplinary committees as "arms of the court", prosecute attorney discipline, a complete disdain to the concept of separation of powers or the true rule of law.
None of that I saw in Professor Lieberman's blog, or his articles.
I guess, touching upon issues that are too sensitive, which are at the core of what is wrong with the legal system, which are at the core of why there is no hope for truly independent legal representation in the State of New York while attorney regulation exists the way it does, may undermine financial well-being of the "expert", and, as part of the Commission, investigator and trustee of public safety and of public access to legal services.
In my personal opinion, it appears that Professor Lieberman's vested financial interest in preserving the status quo of attorney regulation - including his insider ties to the industry and his income derived from representing attorneys before disciplinary committees and being on speaking terms with attorneys in such disciplinary committees - undermine the neutrality or appearance of neutrality, for that matter, of Professor Lieberman as an expert/participant in the Statewide Commission that is seeking to establish uniform and fair attorney discipline while protecting the public.
For that reason, I will not really be holding my breath waiting for reports from the Commission advised by such experts.
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