My husband Frederick J. Neroni filed an appeal yesterday with the U.S. Court of Appeals for the 2nd Circuit in a case Neroni v Zayas, Case No. 15-2030.
He gave me permission to publish it, and I will today, as soon as I find a way to upload the file. The Blogger platform does not directly provide for it, and I am not that computer savvy, so, please, bear with me.
I will post the most important points of the appeal, issue by issue.
My husband raises the following important issues in his appeal (among others, there are many important issues that he raises):
- practice of law cannot be constitutionally regulated by the government when the government did not provide a clear definition as to what practice of law is;
- criminal prosecution for unauthorized practice of law (UPL) cannot constitutionally be done by the government when the government did not clearly define what the practice of law is, so that the public has a clear advance notice of prohibited conduct;
- case-by-case prosecutions for UPL where courts determine after the fact what conduct does or does not qualify as UPL are in violation of the Due Process/lack of notice, Bill of Attainder and Ex Post Facto Clauses of the U.S. Constitution;
- attorneys in New York are not given ANY judicial review of revocation of their law licenses (a due process right in one's livelihood) because:
- the nature of attorney disciplinary proceedings is administrative and not judicial, even if it is handled by a court as a license-issuing and license-revoking administrative body;
- all other proceedings to revoke occupational licenses in New York, other than law licenses, are administrative in nature;
- combination in the disciplinary court of legislative, prosecutorial and adjudicative functions, and lack of discovery and other procedural protections define attorney disciplinary proceedings as administrative in nature
- individuals in New York whose occupational licenses were revoked for administrative bodies, have a right to bring a court challenge of such a license revocation through an Article 78 against the licensing body from the trial-level court up through two levels of appeal. No judicial review of law license revocation is allowed, and that is an equal protection problem.
As an important point, my husband requested the U.S. Court of Appeals for the 2nd Circuit to impose sanctions for frivolous conduct upon the following parties in the appeal and their attorneys, New York State Attorney General Eric T. Schneiderman (also a Defendant-Appellee in the action) and the attorney of record Barbara Underwood:
1. Defendant Lippman obtained a dismissal of Mr. Neroni's challenge that Mr. Lippman's rules of attorney regulation are unconstitutional because of, among other things, lack of uniformity across 4 departments and lack of fairness in license revocation proceedings governed by court-created rules. Then, Mr. Lippman, without notification of the federal courts, on the trial or appellate level, changed his position by creating and running a Statewide Commission for Attorney Discipline which is charged with a goal to verify how to make attorney disciplinary proceedings more uniform and fair to the disciplined attorneys. Such a position, in Mr. Neroni's view (which I share) is inconsistent with Defendant Lippman's position in litigation. Defendant/attorney of record Schneiderman did not disclose the change of position to the federal court, which constitutes frivolous conduct.
2. Defendant Monica Duffy (3rd Department disciplinary Committee) and Karen Peters (3rd Department Chief Judge) are members of the Commission. They similarly obtained a dismissal of Mr. Neroni's challenge to the rules created by the 3rd Department and applied by the 3rd Department Committee in attorney disciplinary proceedings that Mr. Neroni challenges, as well as engaged in post-disbarment investigations of Mr. Neroni and blocked Mr. Neroni's access to the file. At the same time, the court and the Committee participate in the Lippman's Commission for Attorney Discipline as members (counsel for Peters, deputy clerk of Peter's court and Monica Duffy herself are members of the Commission).
3. Defendant Dean Skelos/NYS Senate obtained a dismissal of issues such as lack of proper statutory scheme for attorney discipline and the resulting selective non-enforcement of attorney discipline in attorney disciplinary proceedings, and then is reviewing a Bill S24 designed to create a separate Commission on Prosecutorial Misconduct, which Commission would be clearly not necessary had the disciplinary committee not been engaged in selective non-enforcement of attorney discipline against prosecutors. Such a change of position is inconsistent with NYS Senate's position in litigation in Neroni v Zayas, change of position is not disclosed to the federal trial/motion and appellate courts, and continued opposition of Mr. Neroni's appeal by Defendant NY Senate, same as by other above described defendants, in view of their material change of position to positions aligned with Mr. Neroni's arguments, is frivolous, sanctionable and should be sanctioned by the appellate court.
4. Defendants did not notify the court of the change of applicable law that was disfavorable to their position and requires reconsideration of the court's dismissal of Mr. Neroni's constitutional challenges.
(1) The district court dismissed in March of 2014 Mr. Neroni's challenge to the anticompetitive composition of disciplinary committees defined by the adjudicating court.
Even though in February of 2015 Mr. Neroni's action was still pending in the court below, Defendants made no effort to notify the court of the change of law that affected the litigation, which was their duty to do and which constituted frivolous and sanctionable conduct.
(2) The district court dismissed Mr. Neroni's pre-enforcement action as to possible UPL prosecutions claiming that Mr. Neroni's fear of prosecution for certain conduct is unfounded.
With such a law on the books since June 3, 2015, Defendants continue to oppose Mr. Neroni's appeal of dismissal of his pre-enforcement challenge of possible UPL prosecution on exactly the same issues as the 2nd Department ruled constitute UPL.
Such non-disclosure and continued opposition to appeal is frivolous, sanctionable and should be sanctioned, as Mr. Neroni argued, and I agree.
Public officials cannot play Dr. Jeckil and Mr. Hide in one person all the time and play fast and loose with public trust.
They cannot continue to maintain diametrically opposite positions inside and outside of litigation.
That is frivolous, attorneys and parties are sanctioned for that, and government defendants and attorneys should be treated no differently.
I will inform the public as to what the 2nd Circuit says to Mr. Neroni's challenges on appeal.
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