"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, September 14, 2015

Preliminary remarks on review of the transcripts of New York State Statewide Commission on Attorney Discipline

I am reviewing the transcripts of the three "public" hearings that the Statewide Commission for Attorney Discipline that were posted on the Commission's website.

Before I go into details - and there will be a lot of details, because transcripts of the hearings are fairly long,  I would like to make some preliminary remarks. 


First, not all members of the Commission cared to even come to the public hearings, and I wonder if the findings of the Commission are valid where 

Out of 41 members of the Commission:

  • 8 members  (19.5%) were present at the Albany public hearing; the names of Commission members present at that hearing (according to the transcript) are:
    • Peter James Johnson, Esq.;
    • Prof. W. Bradley Wendel;
    • Monica Duffy, Esq.;
    • Devika Kewalramani, Esq.;
    • Robert Guido, Esq.;
    • Mark Zauderer, Esq.;
    • Sean Morton, Esq.;
    • E.J. Thorsen, Esq.
  • 6 members (14.6%) were present at the Buffalo public hearing; names of Commission members present at that hearing (according to the transcript) are:
    •  Barry Cozier, Esq. (former appellate judge);
    • Stephen Lindley (appellate judge);
    • Mark Zauderer, Esq.;
    • Robert Guido, Esq.;
    • Prof. W. Bradley Wendel;
    • Vincent Doyle, III, Esq.
  • 6 members (14.6%) were present at the New York City "public" hearing where reporter Gary Jacobs was ousted from the building, and an attempt was made to oust him off the sidewalk to prevent his reporting - in violation of Open Meetings Law; the names of Commission members who were present that day (according to the transcript) and are responsible for ousting Mr. Jacobs are:  
    • Barry Cozier, Esq. (former appellate judge);
    • Peter Skelos, Esq. (former appellate judge);
    • Mark Zauderer, Esq.;
    • Robert Guido, Esq.;
    • Devika Kewalramani, Esq.;
    • Sean Morton, Esq. (Deputy Clerk, Appellate Division, 3rd Department)

I highlighted in green names of Commission members who appeared in all three public hearings.

There are only 2 out of 41 (4.8%) of Commission members who considered it necessary for themselves to appear at public hearings.

Their names are:

  1. Mark Zauderer, Esq.;
  2. Robert Guido, Esq.

I highlighted in yellow names of Commission members who appeared in two out of three public hearings.

 There are 4 out of 41 (9.7%) of Commission members who appeared in only two out of three public hearings.

Their names are:

  1. Prof. W. Bradley Wendel;
  2. Devika Kewalramani, Esq.;
  3. Sean Morton, Esq.;
  4. Barry Cozier, Esq.
 I did not highlight names of Commission members who appeared in only one out of three public hearings.

There are 6 out of 41 (14.6%) of Commission members who appeared in only on out of three public hearings.

Their names are:

  1. Peter James Johnson, Esq.;
  2. Monica Duffy, Esq.;
  3. E.J. Thorsen, Esq.;
  4. Stephen Lindley (appellate judge);
  5. Vincent Doyle, III, Esq.;
  6. Peter Skelos, Esq.
All in all, 12 out of 41 members of the Commission (29.2%) appeared at the public hearings that the Commission held, and the absolute super-majority of the Commission did not appear at all, including 100% of the lay members of the Commission.

If the majority of members of the Commission were too busy to attend all three two-hour meetings, and thus shirked their duty, I wonder why they agreed to participated in the Commission in the first place - to have a point on their resumes?


I am reading now the Albany transcript, and I already noted the outstanding amount of time wasted by members of the Commission in making unnecessary curtsies to each other, the judicial system and glorifying how good the judicial system is, the judges who allowed the use of their building are, how good the existing attorney disciplinary system is, how a Commission member was presenting oral arguments in the court where the Commission was sitting etc. etc. etc.

The brown-nosing by Commission members is truly nauseating - and a tremendous waste of time since time for the hearings was very limited, hearings were held during summer vacation period, and at lunch time, for 2 hours, only a limited number of witnesses was pre-screened and invited to testify, each witness was given only 10 minutes to testify - and against that background of time limitations, the waste of time by the Commission members on glorifying each other and the judicial system is even more frustrating.


Conflict of interest of Commission members was readily apparent where witnesses criticized the state of events for which one or more Commission members present at the hearing was responsible, and the criticized Commission member immediately launched arguments with the witness, badgering the witness and forcing the witness, for the sake of having any changes in the system, to appease the criticized member of the Commission and to back down on the criticism.

That was truly disgusting to read.

Such bickering - or witness badgering - or the need for witnesses to practically apologize and back out of their testimony or criticism of what was the problem CREATED by the Commission members that the Commission members were supposed to somehow resolve - would not have happened, had the Commission consisted of neutral individuals and not of people who created the problems that the Commission is supposed to find solutions for.

Nothing like observing a bunch of foxes come together to preside over invitation-by-testimony by chickens.

                            *              *               *

I will run detailed blogs on the language used by the members of the Commission, the choice of witnesses who testified by invitation, the points that each witness made, whether such points were (in my opinion, of course), meritorious or not, and why certain points were made - and, especially, why certain points were omitted by certain witnesses.

Stay tuned.

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