"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.

Tuesday, August 18, 2015

Video coverage of what the New York State Statewide Commission for Attorney Discipline did not want to hear

Predictably, one cannot expect integrity when foxes are charged with guarding a chicken coup.

According to Long Island reporter Gary Jacobs, of "Long Island Backstory", the NYS Statewide Commission for Attorney Discipline does not want transparency of its supposedly "public" hearing supposedly designed as to how to make attorney discipline more effective to protect the public, and more uniform and fair for he attorneys subject to the disciplinary process.

Gary Jacobs' coverage lasts 29 minutes 23 seconds charged with action and is well worth watching.  The report is made on the in front of the building where the office of the New York County Lawyers' Association is located and where the "public" hearings of the Commission were scheduled for August 11, 2015, which were not so public after all - predictably so.

There is one error in the report, as a matter of law, that I want to point out - the reporter mentioned that while complainants to attorney disciplinary authorities do not have a right to appeal if the complaint is dismissed (which is correct), attorneys who are disciplined have a right to appeal their disciplinary action.  That is not correct.  New York State law does not give an attorney a right to appeal, a right given to every other litigant in New York.  The only right, which is usually fictional and summarily dismissed by the New York State Court of Appeals without explanation or analysis, is a right to appeal "as of right" based on alleged constitutional violations.

New York State Court of Appeals dismisses such appeals with a rubber-stamp phrase that it reviewed the record and did not find "substantial violations of constitutional rights".  That means, of course, that New York State Court of Appeals picks and chooses, without authority, which constitutional violations are "substantial" and which are not, but that is another story.

The bottom line is that attorneys in New York DO NOT have a right to appeal from their disciplinary sanctions.

And the U.S. Supreme Court, as a matter of rule and policy, usually does not grant petitions for the writs of certiorari in attorney disciplinary actions, so once an attorney is suspended or disbarred at the Appellate Division level, it is final and usually for life.


With that exception as to purely legal error, I highly recommend the video report as it shows clearly that, predictably, the Commission is just another smoke screen to prevent addressing real problems in attorney regulation - that attorney regulation by the judiciary strips the public of independent representation in court, and that selective enforcement of attorney discipline by market players do not protect the public from bad attorneys, but protects high-ranking bad attorneys from accountability and allows the disciplinary proceedings to be used to quash critics of judicial misconduct and high-ranking attorneys' misconduct and deprive the public of services of those few attorneys who are courageous enough to do their jobs properly.

Gary Jacobs reported that he requested presence and permission to videotape the "public hearing" and was denied his request by the Commission.

That was in violation of Open Meetings Law, Section 103(d)(2) providing as follows:

           "2.  A public body may adopt rules, consistent with
            recommendations from the committee on open
            government, reasonably governing the location
            of equipment and personnel used to photograph,
            broadcast, webcast, or otherwise record a
            meeting so as to conduct its proceedings in 
            an orderly manner.  Such rules shall be 
            conspicuously posted during meetings and 
            written copies shall be provided upon request
            to those in attendance".

So, the Commission could adopt rules - which it did not - that would "reasonably govern the location of equipment and personnel to photograph, broadcast, webcast, or otherwise record a meeting".

The reasonableness of the rules that the Commission was allowed to adopt, according to law, would be governed ONLY by the necessity "to conduct its proceedings in an orderly manner".

The only "reasonable" way to conduct the Commission's proceedings in an orderly manner that the Commission could offer reporter Gary Jacobs was to disappear completely, from the room where the hearings were scheduled to be held, as well as from the building and from the sidewalk in front of the building.  

Yet, there were no grounds for deeming reporter Gary Jacobs as a threat to Commission's ability "to conduct its proceedings in an orderly manner", and the Commission certainly did not have a right to oust reporters from the building or sidewalk.

The building, belonging or rented by the New York County Lawyers' Association, while being a private property, became by law bound by Open Meetings Law by offering to host a public meeting, so the owners or tenants of the building could lawfully not oust the reporter either.  It is, in my view, a 4th Amendment issue and a due process issue, as well as a 1st Amendment issue, and a lawsuit waiting to happen.  

Given that the overwhelming majority of members of the Commission were attorneys who are presumed and required to know the law, such a lapse not only invalidates findings of the Commission, in my personal legal opinion, but clearly exposes the Commission for what it is - an affiliate of the old boys' club designed to keep the old boys' privileges, to the detriment of the public.

Also, if the Commission even issued a rule as insane as it enforced - for the video reporter to simply disappear from the Commission's life, room, building and sidewalk - that rule, according to law, was supposed to be "conspicuously posted" during the public hearings.  I doubt that any such rules were ever issued or ever posted.  You can trust the old boys' club to act as an old boys' club, the rule of law should not apply.

Reporter Gary Jacobs stoically left the building, but rebuffed the invitation to get lost from the sidewalk by offering the representative of the Commission to call the police.

The police, of course, was never called, but the fact of intimidation is there, and it is showing that the Commission does not want the public at large to know what was going on in the little room reserved for the allegedly "public" hearing, does not want to comply, as I stated above, with Open Meetings Law, and nothing good can come out of these clandestine meetings where, according to accounts of witnesses who were at the hearings, the absolute majority of witnesses invited to give testimony were market players, attorneys.

Speakers on the sidewalk raised important questions that the Commission obviously did not want to hear.

Issues reported by Gary Jacobs and members of the public who spoke to Gary Jacobs on camera, are as follows - and I offer them with my comments:

Issue # 1  Commission's composition as a virtually all-lawyer panel.  Interested players in attorney disciplinary system in determining how to protect the public, and who instead are protecting themselves and their own livelihood

Gary Jacobs:  "The solutions of the lawyers [for the problem with non-enforceability of attorney discipline] is that they are going to appoint a Committee of another bunch of lawyers to determine whether the lawyers are capable of making their decision".

Issue # 2 Commission's pre-screening of testimony of the public and did not invite those whose statements Commission did not want to hear

Gary Jacobs took on the Commission for restricting public testimony at a public hearing to only "testimony-by-invitation", with a prior submission of the testimony, in writing, to the Commission, for the Commission to decide whether it is worth it to invite the author of the written testimony to testify orally.

The screening makes sure that no real issues get orally heard, and what was submitted in writing and not presented at the oral argument, may be quietly buried, because, I am sure, no rules are created to archive such submissions.

In other words, the Commission wants only to hear sterilized testimony from market players that will not ask for any drastic (and necessary) changes in the system and will not address judicial corruption, because licensed attorneys would fear for their own licenses and will not mention that topic.  The Commission will then base its "recommendations" to the Chief Crook (oops, Judge) Lippman as to the necessary changes in the system based on sterilized testimony of interested market players, leaving members of the public to testify to the press on the sidewalk, "off record" to the Commission.

That is exactly the same trick disciplinary committees are using in NOT having any archives of complaints against attorneys - no index numbers are assigned, no history of complaints are created, and when complaints are dismissed, there is no way to ascertain that they were even made against a particular attorney, cleansing history of prominent lawyers who disciplinary committees, comprised of supermajorities of lawyers themselves, seek to protect, often for their own financial gains and to drum up their own business.

Issue # 4 Oversight of the legal profession is too important to be left to the lawyers

A speaker suggested that oversight of the legal profession should be done only by an independent body.

Issue # 5 - Unfair attorney discipline against civil rights attorneys strips vulnerable populations of proper independent legal representation

Linda Gilbow (phonetic), one of the speakers on the video, and African American lady, addressed authorities through the video with an appeal to restore the law license of Alton H. Maddox, Jr., a civil rights African American attorney suspended in 1990 and then in 1994 (according to the attorney registration website) who served the African American community well.  

She, and other speakers, members of the public, was not invited to testify in front of the Commission and had to testify in front of the building, to a reporter who was thrown out of the building and prohibited to video record the "public hearings", contrary to the requirements of the Open Meetings Law.

Mr. Maddox also spoke to Gary Jacobs, he was actually (and surprisingly) allowed to testify in front of the Commission.

Alton H. Maddox, Jr. addressed the issue of judicial racism - which,  I am sure, not many attorneys would dare to address openly.

Members of the public speaking to the reporter also mentioned that not all members of the Commission even considered it their duty to be present at the hearing in question.  They were simply absent - and, as one of the speakers correctly pointed out, they will use the "service" on the Commission, even though they did not care enough about that service to attend the hearing, in their resumes to promote their business for their own financial gain.


No surprises there.

Please, note the information from various civil rights groups that appeared on the video that you may want to research.

The groups featured and their representatives were:

1) Elena Sassower, Center for Judicial Accountability - she was allowed to speak to the Commission;
2) Carl Lansiziera, Americans for Legal Reform - not allowed to speak to the Commission;
3) Ray Rogers, Director, Corporate Campaign, Inc.

One of the speakers for one of such groups, Carl Lansiziera of Americans For Legal Reform, indicated that he was there 25 years ago, before a similar commission, and nothing changed - because members of the Commission do not want that change, and the system does not want that change.

So, I personally do not believe that the Commission will be a messiah for problems riddling judicial system in New York that prevent true access to courts and foreclose opportunities for millions of New Yorkers to obtain real effective remedies in court to their problems and injuries, as well as independent legal representation which is the cornerstone of democratic society.

I believe, instead, that the upcoming Constitutional Convention of 2017 may help solve those problems better, and I will soon start publishing appeals to the public as to issues I suggest should be included into the New York State referendum to change the state Constitution in a way that would provide a mechanism for the public to fight judicial corruption and obtain true access to courts and true remedies in court.

Yet, I do believe in the importance of having your voice heard, but I cannot call upon the public to publish their grievances, since such publication may involve defamation liability.  

Center of Judicial Accountability, according to its director Elena Sassower, is willing to publish your written testimonies and your evidence, but you need to consult a lawyer (or laws) specializing in defamation before sending anything for publication, since litigation immunity does not apply when you publish court documents.

Be protected, be heard and stay tuned.

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