"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, September 29, 2015

Peter Skelos engaged in soliciting unauthorized practice of law - according to his own recent ruling

I just ran a blog about the New York State Statewide Commission for  inviting legal ethics Professor James Milles out of SUNY Buffalo Law School to testify as a legal expert before the Commission.

I also mentioned in that blog that Professor James Milles is not shown as a licensed attorney in New York State Attorney Directory.

That brings up an extremely interesting point.

One of the members of the Commission was Peter Skelos.  Peter Skelos is a recently retired judge of New York State Appellate Division 2nd Department, one of 4 courts in the State of New York that handle attorney licensing.

I wrote about Peter Skelos on this blog here and here.

On June 3, 2015 Peter Skelos, as part of a judicial panel, issued a decision in the Matter of Joel R. Brandes denying reinstatement to Mr. Brandes, a disbarred attorney, for allegedly engaging in unauthorized practice of law.

Here is what Peter Skelos, together with companion judges, said in that decision:


We find that Mr. Brandes engaged in the unauthorized practice of law during the period of his disbarment when he provided paralegal services via the Internet. Mr. Brandes represents that he has since ceased this portion of his Internet business because it proved unprofitable. Mr. Brandes's provision of such services through his corporation, Joel R. Brandes Consulting Services, Inc., during the period he did operate this portion of his business, violated Judiciary Law § 90(2) and this Court's order of disbarment, which, inter alia, directed that Mr. Brandes "desist and refrain from . . . practicing law in any form, [and] giving to another an opinion as to the law or its application or any advice in relation thereto." 

"The practice of law involves the rendering of legal advice and opinions directed to particular clients" (Matter of Rowe, 80 NY2d 336, 341-342). Under the guise of being a paralegal, Mr. Brandes, a noted authority and expert on New York family law and divorce (see Brandes, Law and the Family New York [2d ed rev 1997] and cumulative supplements), for instance, would give advice to an attorney, who had a difficult case.  Mr. Brandes would speak to the attorney over the telephone or by e-mail regarding a particular aspect of the difficult case. Upon presentation of the particulars of the case or problem, Mr. Brandes would guide the attorney to the applicable statutes and precedent cases, and offer his past experience. Such rendering of legal advice or opinion constitutes the practice of law, since Mr. Brandes in so doing, exercised professional judgment directed at the legal problem of a particular client, notwithstanding the fact that Mr. Brandes had no direct contact or relationship with the client. In many other instances, Mr. Brandes contracted to draft briefs and other litigation papers for other attorneys. Given the fact that Mr. Brandes was vastly more experienced in matrimonial and domestic relations matters than the attorneys for whom he was performing services, the provision of such services can be deemed to be performing legal services for a client, namely, the attorney for whom he drafted the brief and documents. Such giving of advice and performance of legal services certainly violated the spirit, if not the letter, of Judiciary Law § 478 (see 22 NYCRR 691.10[a]).
Accordingly, we find that Mr. Brandes does not demonstrate the requisite fitness and character to practice law.



First of all, it must be noted that Peter Skelos does not rely ON THE STATUTE in deeming certain behavior in violation of a CRIMINAL STATUTE.

He relies upon a case Matter of Rowe and indicates that Mr. Brandes' behavior violated the "spirit, if not the letter" of the criminal statute.

What constitutes a crime in New York is a matter of statute, and it is a matter of statute, because what constitutes a crime requires a clear notice to the public of prohibited conduct BEFORE such conduct is prosecuted, not AFTER a judge, like Peter Skelos decides after the fact which conduct WAS criminal, according to judge's subjective opinion as to the "spirit, if not the letter" of the criminal statutory law.

When the judge rules on the basis of his own perception of the "spirit, if not the letter" of the criminal statutory law, the judge engages in unlawful amendment of a criminal statute which the judge has no authority to do, only the Legislature has authority to change criminal statutes.

Peter Skelos and his fellow judges who authored the Matter of Brandes, obviously, did not care about the law or the doctrine of separation of powers.

The way Peter Skelos decided the Matter of Brandes is not only a violation of separation of powers, but a classic ex post facto law and bill of attainder, both prohibited by the U.S. Constitution that Peter Skelos was sworn to protect as a judge and as an attorney. 

But, the beauty of Peter Skelos' behavior is that, when he made his decision in Matter of Brandes, he was not going to adhere to the law he himself unlawfully created against disbarred attorney, when he himself needed law expert testimony.

So, as of June 3, 2015, Peter Skelos MADE the law in the State of New York that provision of services as a law expert by a person who does not have a law license, constitutes the crime of unauthorized practice of law.

Then, the same Peter Skelos, as a member of the Statewide Commission on Attorney Discipline, invites a person who does not have a law license, Professor James Milles, to engage in what Peter Skelos said was unauthorized practice of law in front of the Commission.

Aiding and abetting unauthorized practice of law is a crime.

So, will Peter Skelos be prosecuted for, first, deeming a certain conduct as UPL from the judicial bench, and then inviting, prescreening and allowing expert testimony before the Commission which, according to Peter Skelos' own recent appellate ruling, was a crime of unauthorized practice of law? I doubt it, too many connections in high places.

Double standards in the honorable legal profession are simply screaming, and Peter Skelos appears to feel absolutely immune in anything inappropriate he is doing, like his recent jumping off the bench after the indictment of his brother, at that time the speaker of NY Senate, in order to be able to catch a business opportunity in a law firm favored by the new Speaker of the New York State Legislature.

I am sure that, if sued as a member of the Commission, Peter Skelos will claim some kind of immunity for malicious and corrupt, and discriminatory acts.

So, Peter Skelos as a judge said a disbarred attorney Joel R. Brandes, an expert in law, may not provide expert services, it is unathorized practice of law.

Peter Skelos as a member of Statewide Commission on Attorney Discipline established by Chief Judge of the State of New York, invited to testify a law expert James Milles, who is not an attorney, 

to testify to the Commission, thus providing to the Commission legal services as a law expert (in accordance with Peter Skelos' decision as a judge in the Matter of Brandes), and whether that law expert service to the Commission was for a fee or not, doesn't matter.  

Yet, I will make it a point to notify Joel R. Brandes and his attorney as to the interesting developments in:

  • Mokay v Mokay - a Delaware County Supreme Court case, Index No. 2007-695 - where Judge Kevin Dowd, on June 23, 2014, called it "mind-boggling" and "bizarre" and rejected my argument when I pointed out exactly what Peter Skelos said in the Matter of Brandes, that drafting of legal papers by a paralegal constitutes unauthorized practice of law; and allowed attorney Richard Harlem, son-of-a-judge, to charge legal fees for legal services of his unlicensed paralegal Patrick Orr in drafting legal papers, an affirmation and a memorandum of law;
  • Neroni v Zayas - a U.S. District Court for the Northern District of New York case, Case No. 3:13cv127 - where Judge Lawrence Kahn claimed, dismissed claims that what is not enforced as UPL against never-licensed individuals, is enforced as UPL against disbarred attorneys, pointing out specifically at paralegal and law expert services;  Judge Kahn while dismissing the pre-enforcement claims challenging UPL statutes for selective enforcement, vagueness and overbreadth on March 31, 2014 and on June 4, 2015, claimed that it is not reasonable for Mr. Neroni to think that UPL statutes will EVER be interpeted by courts as including work as a law expert;
  • Matter of Brandes - a NYS Appellate Division 2nd Department case where Judge Peter Skelos with companion judges ruled that what Judge Dowd said was not UPL for the person who never had a law license, is UPL for a person whose law license was revoked, the exact claim that Judge Kahn rejected as unreasonable;
  • Testimony as a law expert of non-attorney Professor James Milles before the Commission, including Peter Skelos, by invitation on August 4, 2015, 4 days after Peter Skelos' retirement from the bench where he made a decision in Matter of Brandes two months prior - where Professor James Milles is not an attorney, is giving expert testimony to the Commission, by Commission's invitation which qualifies as being the Commission's expert and is, according to the ruling of Commission member Peter Skelos made against Mr. Brandes, engaging in unauthorized practice, which the same Peter Skelos, as member of the Commission has actively solicited, aided and abetted

I hope Mr. Brandes can reinstate his law license using these cases, and can use them to make a successful motion to vacate the denial of reinstatement, based on new evidence.

And as to Peter Skelos and his double standards and unlawful behavior - it appears it runs in the family.  After all, denying to a disbarred attorney what Peter Skelos solicited from an unlicensed law professor is not the first appearance of impropriety that Peter Skelos, brother of the recently indicted Dean Skelos and uncle of the indicted Dean Skelos' son, has committed - knowing that his own and his family members' high status and connections will shield him from any accountability.

Runs in the family, doesn't it? 

And, the right person to sit on this particular Commission.

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