"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.

Monday, August 31, 2015

On the undisclosed goal of the New York State Statewide Commission for Attorney Discipline

I wrote on this blog several times about the newly created New York Statewide Commission for Attorney Discipline:

as well as that the New York State Office of Court Administration, the same office that created the Commission and is holding the hearing, is at the same time blocking my Freedom of Information request regarding public records pertaining to:

  • appointments to the disciplinary committees;
  • statistics of attorney discipline by classes of disciplined attorneys 
I already wrote in my very first blog that the creation of the Commission was NOT motivated by protection of consumers - that was the declared purpose - but, rather, as a panic reaction of the legal profession to the decision of the U.S. Supreme Court stripping members of attorney disciplinary committees of the "state immunity" for antitrust violations, in other words, for disciplining attorneys not for purposes of protection of the public, but to protect committee members' own market turfs, since the absolute supermajority of committee members are practicing attorneys with financial interest in disciplinary investigations.  

In other words, disciplinary proceedings in New York - as in other states - bear the definite attributes of quashing competition (that's along with quashing critics of misconduct in the judiciary and in any other branch and level of the government).

Of course, the Chief Judge Lippman, when creating the Commission to review how to save the market players from antitrust liability, did not tell the public that it is spending public money to save the market players from antitrust liability.  Of course, it was presented to the public that the Commission was created to:

  • make attorney disciplinary proceedings uniform across the 4 Appellate Divisions, 
  • fair and efficient to attorneys while
  • making them also efficient in protection of the public
Well, the "public" hearing and how they were conducted showed to a lot of consumers just how they are being protected by the Statewide Commission.

As another illustrative point, I did not see anywhere on the Commission's website an announcement to the public - in the form of a disclaimer of a conflict of interest by the Commission's attorney-members and law professor-members who are breeding the "future lawyers of America" (while intentionally not teaching them about attorney disciplinary proceedings - according to the testimony of one of the esteemed "legal ethics" professors testified) - about a letter by a consumer union to the State Attorneys General to investigate antitrust violations by the disciplinary committees in all states of the United States.

The letter was reported by "The National Law Journal" back in May of this year.

The letter, as I stated above, requested State Attorneys General to bring the disciplinary committees within compliance with federal antitrust laws and the decision of the U.S. Supreme Court in North Carolina Board of Dental Examiners v. Federal Trade Commission decided in February of 2015 and, before being decided, ardently opposed by bar associations from across the country - those same people who allegedly regulate the legal profession in order to protect the consumers of legal services.

The National Law Journal quotes a former antitrust prosecutor to say the following about the U.S. Supreme Court decision that applies not only to the dental examiners, but to any licensing board with a supermajority of regulated market participants and without strict and neutral supervision from the state:

        "The Supreme Court declared, in effect, that 
         a thousand agencies—most state regulatory boards 
         and commissions—are committing felony offenses
         said Robert Fellmeth, a former antitrust prosecutor 
         and director of the Center for Public Interest Law"

and that

       "The high court ruling was not limited to the North Carolina
         dental board, Fellmeth said. "This was a cosmic case 
         where the Supreme Court said any agency controlled by     
         active participants in the trade regulated does not have 
         sovereign protection," he said. "They are in same position 
         as a cartel of truckers, insurance agents and other 
         horizontal competitors meeting and deciding what to do. 
         And, by the way, lawyers are included here."

"Coincidentally", I wrote about that, both in this blog, and in the pleadings in my own and in my husband's disciplinary proceedings.

Moreover, at this time I filed a request with the Federal Trade Commission to investigate the New York State attorney disciplinary authorities for non-compliance with antitrust laws.

But - wait a minute.  If these people are "committing felony offenses", violations of criminal antitrust laws, where are federal investigators and prosecutors?

And, isn't a disciplinary investigation by panels of non-attorneys of ALL attorney-members of disciplinary committees are in order INSTEAD OF appointing them as members of the Statewide Commission?

As the National Law Journal further contends, the National Attorneys General Association "declined to comment" on the letter, but, as the National Law Journal reports, the former antitrust prosecutor recommended, back in May of this year, to make two changes, in the alternative, to AVOID ANTITRUST LIABILITY for members of attorney disciplinary proceedings - not for protection of the public:
  • Either "get rid of a majority of the trade members, or" 
  • "create some oversight that passes muster"

    Getting rid of majorities on the disciplinary committees?
What of hundreds of disciplined attorneys who ALREADY suffered from anti-competitive actions of their competitors on the committees who violated federal antitrust laws in prosecuting them, thus committing felonies - and were absolved BY FEDERAL COURTS who gave them absolute JUDICIAL IMMUNITY?

Courts will now claim that the U.S. Supreme Court's decision does not have a "retroactive effect"?

That issue aside, I wrote on this blog on June 25, 2014, 8 months before the U.S. Supreme Court made the decision that rattled the legal profession, that attorney disciplinary proceedings are necessary not to protect the public, but to quash competition, and that blog post remains in the 10 most read posts out of more than 500 blog posts in this blog (the 10 most read blogs are determined automatically by viewing statistics, I have no control over it).

Nevertheless - and quite predictably - I was never invited to speak to the Commission at its "public hearings".

Nor did I ask the Commission for an opportunity to testify.

First, what I wanted to say, I say regularly on my blog, without time or space restrictions, and the member of the Commission Christopher Lindquist, of the Appellate Division 4th Department, was notified of my blog because I was charged criminally (by the disciplinary prosecutor acting as a prosecutor and the main witness, a completely disqualifying combination) for telling the truth about fabrication of court transcripts in my disciplinary proceedings.

Second, for me, the purpose of why the Commission was convened was quite clear - and it was not to help attorneys get a fairer treatment in proceedings that are characterized with no procedural protections and gross separation of powers and conflicts of interest violations, and not to protect consumers.

It was, as I said above, a panic reaction of attorneys to protect themselves from AUTOMATIC DISBARMENT that will result if members of disciplinary committees (who sit there to do the bidding of judges to eliminate critics of judicial misconduct and to drum up their own business, quashing competition and rescuing high-standing attorneys from discipline) are convicted for antitrust felony violations.

As to the advise of the "former antitrust prosecutor", I don't believe that it is an "either - or" situation where the states should EITHER get rid of majority of trade members on the disciplinary committees OR create state oversight that passes muster, because the "oversight which passes muster" must be from NEUTRAL bodies and NEUTRAL actors, and ALL branches of New York State government are controlled by the "trade members", licensed attorneys.

And, of course, the creation of the Statewide Commission of trade members is an answer as to whether the legal elite wants to give up the controls of the disciplinary proceedings to the public that it claims it is protecting.

By the way, with all that said - as I also pointed out to the 4th Department in my pleadings - there is NOTHING in New York State statutory law giving authority to the now existing disciplinary committees to conduct disciplinary proceedings.  An attentive reader will search in vain the statute that governs regulation of the legal profession in New York, Judiciary Law 90, for existence or authority of anything other than "character and fitness committees", and for anything other than checking fitness of CANDIDATES for licensing, not disciplining licensed attorneys. 

That "little glitch" somehow escapes review of Appellate courts that created those committees and consider them "an arm of the court" (thus creating a separation-of-power, and conflict of interest/court-as-advocate and prosecutor-as-adjudicator/court issue).

So, while the Statewide Commission is presenting a smoke screen to the public that it is sitting out there to come up with ideas as to how to make attorney disciplinary proceedings more uniform, fair and at the same time protection of the public more efficient - the real reason is how to save attorney members of disciplinary committees from multi-million dollar lawsuits, felony convictions and automatic disbarments after such felony convictions.

And such purposes should have been squarely announced to the public - that would be honest and honorable to do, by the profession that self-appoints itself as honorable, wouldn't it be?

What I am very upset about that taxpayers of the State of New York were not notified that what NEEDS to be created - and was not - was a Statewide Commission of CONCERNED TAXPAYERS interested in protecting the state budget from indemnifying the potential felons who quash competition and drum their own business behind closed doors under the guise of protecting the public from bad attorneys - when lawsuits against them for antitrust liability will start raining in.

Actually, the letter of the Consumer Union - see the link below DOES point out the need to protect state budgets from "indemnifying" liability.

Not to mention that saving the hides of felons should NOT be a matter of public concern and should NOT be the matter upon which taxpayer money is expended - and I am sure, taxpayer money was expended on the running of the Commission.
That these concerns behind creation of the Commission and the Commission's hidden goals were not presented to the public - thus reducing importance of the Commission in the public eyes - reveals just how honorable our self-appointed "honorables" are.
By the way, here is the letter of consumer organizations to the associations of the Attorneys General.  

The detailed analysis of the letter and the reaction (or non-reaction, and reasons for non-reaction) of the Attorneys General - in my next blog post.

Stay tuned.

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