"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 15, 2015

Statewide Commission for Attorney Discipline, "public" hearing in Buffalo - drumming up business even there

The Statewide Commission was presented to the public at the hearing as the "brainchild" of the pre-eminent Chief Judge of the State of New York.

Well, if you can call the panic attack of Judge Lippman to do something after the North Carolina Board of Dental Examiners case according to which members of disciplinary committees and those who set them into action and allow them to proceed the way they proceed, are committing federal antitrust felonies.

Of course, Judge Lippman never announced to the public that the real purpose of the Commission is to do something to preserve the current status quo for those who have long made attorney disciplinary process their business, because installing super-majorities of - the horror! - consumers of legal services in the place of attorneys, which is the current situation, will upset financial well-beings of too many attorneys.

I am currently reviewing the transcripts of the "public" hearings of the Commission recently posted on the Commission's website.

So far I have read two transcripts - the Albany transcript (over 60 pages) and the Buffalo transcript (71 pages).  It will take me a while to read the next one, NYC transcript (161 pages), but I wanted to share some of the impressions from reading the Buffalo transcript while they are still fresh in my mind.

As to the two transcripts of the Commission's public hearings I've read so far - Albany and Buffalo, one more aspect was added through the Buffalo transcript that was not present in the Albany transcript, and that is relentless business-drumming by two attorneys with a business interest to preserve the status quo in the disciplinary proceedings, one of whom was the Chair of the disciplinary committee in that same department and now represents attorneys in disciplinary proceedings. 

His colleague who is in the same business of representing attorneys in disciplinary proceedings was there, too.

I will omit names at this point, I will present scans of testimony with detailed comments later.

What I want to say now is - even with the North Carolina Board of Dental Examiners' case looming over their heads, even with the Commission called as an emergency to make efforts to preserve the status quo so that the disciplinary process in New York is not dissolved as unlawful antitrust activity by the feds, members of the Commission were still at it - drumming up business and absolving themselves from any wrongdoing.

TWICE was one of the Commission members, an appellate judge Lindley, confronted with the claim that specifically criticized his activity as a judge.

A brave female attorney, Stephanie Sanders, representing the Minority bar association, expressed her personal opinion that disciplinary committees are engaged in racial profiling.

Judge Lindley attempted to rebut that by quoting, without naming names, only two African American attorneys who were allegedly disciplined by the courts. 

First, for Judge Lindley, apparently, only African Americans are minorities in this great country. 

Second, to Ms. Sanders credit to her courage, she did not back down and continued to confront Judge Lindley (I will follow her fate - if she will be later retaliated against) by stating that she asked for the statistics on race of attorneys who were disciplined and was told that such statistics was unavailable.

So, it clearly looked like Judge Lindley was caught in a lie, because he was pretending to know statistics of race of disciplined attorneys (when most often disciplinary proceedings are conducted on paper without even seeing the disciplined attorney and without the attorney's race ever appearing in the record of the proceedings) - the statistics that the committees intentionally did not collect.

The second time when Judge Lindley was caught in a lie was by a lay legal consumer, a victim of a wrongful criminal prosecution and the founder and co-chair of the organization dealing with wrongful convictions called "It Could Happen To You", Bill Bastuk. 

Judge Lindley previously claimed that disciplinary committee do not engage in selective non-enforcement of attorney discipline against prosecutors involved in wrongful convictions.  Judge Lindley claimed that he knows of four prosecutors who were allegedly disciplined (without giving names, name of the appellate department where such an extraordinary event allegedly occurred, or time period over which the whopping 4 prosecutors were allegedly disciplined).

That number was against close to 4,000 wrongful convictions involving prosecutorial misconduct, as confirmed by studies conducted by the Innocence Project, It Can Happen To You organization and a Michigan Law School study - all quoted later in the Buffalo hearing. 

4 out of 4000 is a great number to begin with.  It is what - 0.1%?  Great.

Well, Judge Lindley was caught in a lie on that one, too.

Bill Bastuk testified that he was and still is an unremedied victim of wrongful criminal prosecution where two named prosecutors, until the bitter end, insisted on withholding exculpatory evidence from him while prosecuting him for rape that never happened (luckily, he was acquitted - but after spending $150,000 on his defense) - relayed to the Commission this story.

He sued the two prosecutors who withheld exculpatory evidence in his case, the case got dismissed on prosecutorial immunity grounds - and Bill Bastuk raised the issue that I keep raising in this blog for an eternity:  why his dismissed lawsuit was not used to commence disciplinary proceedings against the two prosecutors?  And I will add that absolute prosecutorial immunity was even invented on the rationale that alternative ways - through attorney discipline - are available to bring accountability to the prosecutors.  Well, such ways are unavailable in New York, so prosecutorial immunity should not be given.

According to Mr. Bastuk, when a proposal was made by his organization It Can Happen To You to the New York State Legislature, in view of the fact that prosecutorial misconduct is consistently not addressed by the attorney grievance committees, to establish a separate independent Commission for prosecutorial misconduct, representatives of the District Attorneys Association "descended upon the Capitol like paratroopers" (his words), in order to lobby the Legislature and persuade Senators DeFrancisco and Bonacic who were handling the Bill S24 not to promote that Bill - because everything is good the way it is (wrongful convictions and all).

The DA's Association claimed (same as Judge Lindley at the Buffalo hearing) that they have a list of disciplined prosecutors.

The Senators are still waiting for that list - and it has been a long time.

The inconvenient truth is - there is no such list, or, if a prosecutor was ever disciplined in the glorious state of New York (and then - censured, not suspended or disbarred as the "mere mortal" attorneys are), that was the Albany County DA, and he was prosecuted not for withholding exculpatory evidence, but for criticizing a judge - something he had a 1st Amendment right to do and SHOULD NOT have been disciplined for.

But, the most hilarious performance was given by two attorneys who were invited to testify by members of the Commission, who were also members of disciplinary committees that were at the core of existing problems - unfairness, lack of uniformity, racial profiling, selective enforcement or non-enforcement of attorney discipline, quashing competition to private businesses of members of the Committees through attorney disciplinary process.

The testimony of the two attorneys was most revealing.

They claimed that everything in the Appellate Division 4th Department is good, fair and even model for the entire State of New York, and not only nothing should be changed, but the practices of the 4th Department should be spread out and modeled for the rest of the State.

I've never seen such an unashamed business-drumming in my life. 

The two "paratroopers" that descended upon the Commission's public hearing (by invitation no less, and by invitations at the last minute, by their own admission) were:

  1. attorney Richard T. Sullivan, of Harris Beach LLC and "former chair of the Eigth Judicial District Attorney Disciplinary Committee", and
  2. Joel Daniels, "an attorney in Buffalo who also handles attorney disciplinary matters"
These "paratroopers" make their business and charge money for representing attorneys in disciplinary matters before the disciplinary committee in the 4th Department.

Richard T. Sullivan comes from a pre-eminent law firm that became even more pre-eminent since last year, when it accepted as partner the former judge of the New York State Court of Appeals Victoria Graffeo, so when Mr. Sullivan drummed up business at the Commission's public hearing, he was doing it not only for himself, but for the retired Judge Graffeo, too.

Richard T. Sullivan and Joel Daniels stated the following:

  • that nothing should be changed;
  • that they would agree to any changes that the Commission would suggest and any FURTHER restrictions on proceedings (while right now there is nothing OTHER than restrictions on attorney's rights in such proceedings - no right of discovery, no subpoena power and no appeal as of right);
  • that everybody in the 4th Department Court (the court where they argue their paid cases) is wonderful;
  • that everybody, from attorneys to investigators, in the 4th Department committees, are wonderful;
  • that discovery, basically, is not needed for attorneys when attorneys in the attorney disciplinary committees are so wonderful and when all that the disciplined attorneys should do is simply "talk" to the disciplinary committee and politely ask them to open their files while they "usually" open their files to be reviewed by the attorneys subject to discipline

Well, I've been writing on this blog for several months about the opposite:

  • refusal of attorneys from that same disciplinary committee - Mary Gasparini and Gregory Huether - to open their files for my review, after Mary Gasparini claimed they have an "open file policy" on the phone, but then withdrew that policy as soon as I made a motion for sanctions against Mary Gasparini for proceeding (without reading, she admitted that) with fraudulent charges transferred to her from another Department - charging me for attorney misconduct for not appearing on behalf of a client at a deposition at the time when, as documented in court records, I was NOT an attorney, not admitted to the bar and was not and could not represent anybody at that time in that proceeding;
  • fabricating transcripts and presenting fabricated transcripts to the court where it was claimed that the court-ordered hearing that was never provided to me was provided;
  • launching a criminal prosecution against me for exposing fabrication of transcript in a blog;
  • continuing disciplinary prosecution (Mary Gasparini) after appearing against me in the criminal proceedings as a sole witness, which disqualified the disciplinary attorney ABSOLUTELY from proceeding - as well as her entire office;
  • making multiple fraudulent claims to the court after her disqualification, and up to the very last appearance in front of the court. 

I am going to publish the transcript of the last appearance in front of the disciplinary court on May 26, 2015 (where I did not appear, for fear that Mary Gasparini will invent some other basis to have me locked up, as she already asked the court to do, in retaliation of exposure in my blog of her misconduct and incompetence - and while the court refused to give me a public hearing and condoned fabrication of transcripts, I could reasonably fear not only for my liberty, but for my life, I could simply maimed or killed in that jail, and nobody would be the wiser).  So, I did not appear.

But Mary Gasparini appeared and made further fraudulent claims to the court, even though she was disqualified from her appearance since January of 2015 as a witness in a CRIMINAL prosecution against me, for speaking out about her misconduct in my case.

Yet, the Buffalo transcript taught me what I did wrong in handling my proceedings.

It, apparently, does not matter what I allegedly committed or was charged with.

What matters is that I did not hire a local insider - like Mr. Sullivan of Harris Beach - and did not pay him money to do his insider job with the Committee (and, possibly, with sharing the money I paid him with the Committee, I will not be surprised).

It is apparent that, to some people, my own files that are locked to me, are open to Mr. Sullivan for the asking - by the same "wonderful" people from the same Committee who defraud the court in my case, make frivolous arguments in my case and fabricate court transcripts in my case.

So, not only the Committee, consisting, in violation of federal antitrust law, as the U.S. Supreme Court already ruled, quashes competition under the guise of disciplinary activity - it drums up business for itself and for its former members like Mr. Sullivan.

For people like Mr. Sullivan (and his partners, of course, including the retired Judge Graffeo) lack of transparency, lack of elementary discovery rights for attorneys subject to discipline are necessary for their financial and business well-being, because they appear as the ultimate saviors who "know ways" behind the process, through those back doors, to those "wonderful people" who are wonderful only to insiders and who make their own rules for insiders - and their own rules against those who actually dare to take their misconduct head-on, like I did, and demand that disciplinary proceedings are handled openly, honestly, and with observation of the same rights as in any other civil proceedings with any litigants.

It is my opinion that the insider Mr. Sullivan and his disciplinary business can only survive in the murky waters where no rights exist - so that he can "arrange" that his clients are treated leniently by the "wonderful people" that open the back doors to Mr. Sullivan (which are locked to non-insiders).

Imagine for a second what will happen if the State of New York does what the U.S. Supreme Court required it to do in February of 2015 through its decision in North Carolina Board of Dental Examiners v. Federal Trade Commission:

  • replace super-majorities of attorneys on the disciplinary committees with super-majorities of no-nonsense legal consumers like Bill Bastuk; or
  • create oversight by the State over such committees, with a veto and modifying power, also by neutral overseers like Bill Bastuk
All the connections carefully forged over the years, all the back-door arrangements will disappear into the thin air where all that works is the rule of law - that is currently non-existing in the attorney disciplinary proceedings.

It is interesting to mention that Mr. Sullivan and his colleague in the disciplinary business attorney Joel Daniels did not spend much breath on protection of legal consumers.

Well, their interest was lying in the different direction:

  • how to brown-nose appellate judges on the Commission and members of attorney disciplinary committees on the commission;
  • how to ensure that their carefully made arrangements, for presently pending cases and for future business, will remain intact, and even, more ambitiously,
  • how to spread the Star Chamber policies that exist in the 4th Department to the entire State of New York
I will note that the Commission announced ahead of time that there will be only limited time to testify, only 2 hours during lunch time, during vacation period, with a very short notice to the public, and that the testimony will be pre-screened by written submissions and by invitations only.

Somehow, TWO attorneys who work and, possibly, have business relationships with the "wonderful people" on the disciplinary committee of the local appellate division, were invited to testify about how everything is fine and should be preserved and even spread over the rest of the State of New York, while an unknown number of legal consumers with proposed no-nonsense testimony were rejected.

So, the goals of the Commission are clear:

  • preserve the status quo;
  • create smoke screens to try to regain the dwindling public trust in the integrity of attorneys and judges in the State where prosecutorial misconduct and misconduct of high-ranking attorneys and judges is rampant and unaddressed, and no smoke screens will help hide it;
  • drum up more business

By the way, Mr. Sullivan and Mr. Daniels' "advocacy" was exclusively self-serving and was not helping the rights of either their clients or the public - and business rights of attorneys representing attorneys in the disciplinary process was not part of the proceedings, so inviting these two people wasted time (deliberately) that could have been taken by legal consumers' testimony.

If processes in attorney disciplinary proceedings are changed to at least the same processes that exist in civil proceedings in New York, Mr. Sullivan and Mr. Daniels will lose business, because their "backroom dealings" will not be as necessary as before.

And - think what will happen to Mr. Sullivan's and Mr. Daniels' businesses if - the horror, again! - attorney licensing is eliminated, because it DOES NOT WORK, let's face it - and attorney misconduct, fraud etc. is going to be addressed through open civil proceedings in court, based on the already existing causes of action for breach of contract, breach of privacy and confidentiality, breach of fiduciary duty, negligence/malpractice, with full discovery and an appeal as of right.

Attorneys will then simply not need Mr. Sullivan's and Mr. Daniels' services.

That's why Mr. Sullivan and Mr. Daniels were invited by Commission members who were not interested in changing the status quo, while sitting on the Commission and pretending that that's their purpose.

In the noble profession, hypocrisy and greed reign.

No surprises there.

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