"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.

Sunday, July 19, 2015

Public hearings are announced by the Commission on Statewide Attorney Discipline - coincidentally, during vacation months

I was alerted today of the announcement that the new New York Commission on Statewide Attorney Discipline is going to hold public (allegedly) hearings on dates provided below:

My source, an extremely reliable source, indicated to me that the person tried to contact the New York State Court Administration and the Commission on Statewide Attorney Discipline directly to verify how public the meetings are going to be and exactly what is the procedure of being selected for testimony and as to written submission, and that the NYS Court Administration or the Commission on Statewide Attorney Discipline did not have coherent answers to these questions.

The date of announcement (June 23, 2015) and the dates of the hearings with testimony BY INVITATION ONLY (July 28, 2015, in a month), August 4, 2015 and August 11, 2015, are suspect to me because:

(1) one month is not enough to prepare testimony on topics as important as attorney misconduct, attorney discipline for protection of the public, and how efficient that protection of the public works (or, on the case of the State of New York, does not work).  Such testimony, if undertaken seriously, must rely upon documentary evidence, and such evidence often needs to be pulled from archives, either personal archives that need time to go through, or from public archives, and people need to put together time, money and effort to obtain copies of documents from such archives, where people serving the archives may be on vacations at this time of year.  My conclusion - the timing appears to be scheduled intentionally in order to have less people coming forward with testimony or written submissions, and that begs the next question - why?

(2) Scheduling the "public hearings" with only a month's advance and in the middle of vacation time, once again, appears to show the public that the "public hearings" are "for show" only, and are insignificant.  Significant events are not treated in such a casual way.

(3) Identity of the Commission members, about which I already blogged here, indicates that practically all of the members of the Commission are "insiders" of the system of provision of legal services who are dependent on that system for their financial well-being.  To expect for some cardinal changes from inside players is, at the very best, naive. 

(4) Testimony "by invitation" is what? What is the criterion of who is going to be allowed to testify?  And why people are given only 10 minutes for the testimony where they have to cram a story of a lifetime into those 10 minutes? 

(5) The length of hours assigned to the so-called public hearing is laughable.  It is:

2 hours around lunch time - from 11 a.m. to 1 p.m. in Albany - so, the maximum to be heard are 12 people (120 minutes, 10 minute testimony each), and that is not going to happen because some time will be eaten up on procedural issues at the beginning, during and at the conclusion of the "public hearings";

4 hours around lunch time in Buffalo, NY - from 11 a.m. to 3 p.m.;

2 hours around lunch time in New York City, NY - from 11 a.m. to 1 p.m.

It appears that the whole idea of "public hearings" is to appease the public that something was done, but it is clear that nothing serious can be accomplished with such a "public hearing" where less than 50 people can picked by the Commission itself can testify not more than 10 minutes each - which, realistically, may be completely inadequate time to carry through their story and their message for any meaningful changes to be made based on that testimony.

(6) People on the Committee, such as, for example, Chief attorney for the 3rd Department disciplinary committee Monica Duffy and Samantha Holbrook, are at the root of the problem -

  • it is Monica Duffy and Samantha Holbrook who participate in tossing complaints against politically connected attorneys,
  • it is Samantha Holbrook (law partner of appellate Judge Elizabeth Garry before she came to the bench) who engage in conflicted prosecutions of attorneys in cases where Ms. Holbrook is suing such attorneys and has a vested interest in having them disbarred; and
  • it is Monica Duffy and Samantha Holbrook who block access of attorneys subject to discipline, including suspended and disbarred attorneys, to their own files - and apparently, documents in at least one federal case and exchange of this author with Monica Duffy's committee and the Committee's attorney in federal litigation the New York State Attorney General, show that the disciplinary committee simply does not keep records of attorney discipline and thus escape investigation of the so-called "efficiency" of their own work.
When I saw Monica Duffy as a member of the "subcommittees" on "uniformity", and on "efficiency and fairness", I nearly died laughing.

It is to appeal to the ultimate fox that the henhouse is not guarded properly.

By the way, an appeal is at this time pending of the decision of federal Judge Lawrence Kahn to dismiss a federal civil rights lawsuit against Monica Duffy for blocking access to disciplinary file and against Monica Duffy's employee for unlawful investigation of a former attorney for fake reasons.  The dismissal was on grounds having nothing to do with the merits of the case. 

Moreover, Monica Duffy and Samantha Holbrook dismissed several complaints against themselves and attorneys working for their disciplinary Committee or members of the Committee - imagine if you would be able to investigate and decide not to prosecute your beloved self.

So, these members of the Commission possess overwhelming integrity.  I can hold my breath to read what they will produce as a report on the "public" hearings.

Christopher Lindquist, another member of the Committee, participated in attorney misconduct in, being a court attorney, giving legal advice to the disciplinary prosecutors and - guess what - blocking public access to court records and blocking an attorney (me) from receiving a - guess what - public hearing that I was entitled to by law.

Lindquist is yet another shinig star on the Commission from whom public can expect great accomplishments as a result of these public hearings.

(7) Consumers of legal services who are supposed to be protected by attorney discipline, are not represented on the Commission, instead those who perpetrate misconduct are the "reviewers".

My position as to "what needs to be done" with attorney disciplinary system in New York is clear - to declare it unconstitutional, to prohibit the government to control the livelihood of advocates of the public who challenge misconduct of government officials, in other words - to cancel the attorney licensing system, and to have attorneys disciplined as other professionals are disciplined - through lawsuits.

There are enough causes of action to do that - for malpractice, for breach of contract, for breach of fiduciary duty, for breach of privacy etc.

The whole reason why this so-called Commission was created was because Lippman was afraid for his guts when his friend Silver was indicted on federal charges and wanted to do something to deflect attention from his "badness" into his newly found alleged "goodness".

Well, I for one will never believe in the "goodness" of what Lippman creates, and especially when it considers the already crumbling legal profession.

Public hearings.  Reviewed by the main perpetrators of the problem that the public cannot afford legal representation and why rampant attorney misconduct of politically connected attorneys (especially those connected to the judiciary) remains uncontrolled - for decades.

It is clear that these hearings will not and do not intend to resolve the main problem - regulation of the legal profession by the judiciary which judiciary uses that regulation to undermine the American democracy, as the tool of control and of oppression and retaliation against attorneys who challenge judicial misconduct, misconduct of politically connected attorneys and of attorneys working for the government and who are the real protectors of the public.

To think that perpetrators of misconduct (such as Duffy, Holbrook and Lindquist) will investigate, prosecute and provide an EFFICIENT and FAIR solution to the problem they created...

Not in real life.

One last thing I wanted to say.

With all said above, I encourage the public to appear and tell their stories, and to demand that attorney discipline is fair.  Why? Because fairness of attorney discipline directly relates to availability of legal defense, especially to unpopular clients, such as criminal defendants and civil rights plaintiffs.

If you remain silent, if you, the public, the People, the sovereign, do not demand accountability as to how attorney discipline is imposed, mainly upon civil rights attorneys, criminal defense attorneys and those attorneys who dare to challenge judicial misconduct for the sake of you, the people - do not ask why attorneys are unwilling to make motions to recuse when you need it, and why they refuse to take on cases involving "sensitive issues" against the government or "well connected" opponents and attorneys.

Because your attorneys are unprotected from judicial retaliation, because they can lose their livelihood by protecting you and because you, the sovereign did nothing to stop that from happening.

Attending such supposedly public hearings will also be valuable in showing to the attending public why attorney discipline by attorneys and judges will never produce a fair result - not for disciplined attorneys, not for the public whose interests the disciplinary proceedings are supposed to address. Too many self-serving interests are involved for proceedings where the public is not allowed a meaningful participation, to be fair. 

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