"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 28, 2015

The Report of New York State Statewide Commission for Attorney Discipline: No Luxury of Time. Why?

At the beginning of this year I ran a blog post called "TL;DR" ("Too Long; Did not Read") describing how courts usually skip over issues in review of cases claiming they are too busy to do their jobs thoroughly.

I recently encountered an anonymous critic on this blog who called himself "Coyote Waits", acted from the bushes, without revealing his identity, in insulting and patronizing manner, made conclusory allegations of incompetence to me, displayed an extremely sensitive male ego that could not withstand being called a sexist bully while he was acting as a sexist bully and who made his conclusions based on "review of my litigation history" - an instant review.

Since review of only one civil rights case may often require several days, and my anonymous critic (a male attorney, as he finally confessed) made his conclusions after allegedly reviewing ALL of my multi-year multi-court multi-case litigation history, I could make conclusions that either he is simply lying, or he is applying the TL;DR method, or both.

Unfortunately, I found the same TL;DR argument in the Report of the NYS Statewide Commission for Attorney Discipline.

Yet, since high-ranking attorneys and judges who commit misconduct usually camouflage that misconduct in top-lofty language and are professionals of such camouflage, they expressed it this way: that the Commission allegedly "did not have the luxury of time" to do its job thoroughly.

It intrigued me, because creation of the Commission was announced in February of 2015, Commission formed in March of 2015, as of June 2015, according to a judicial accountability advocate Elena Sassower, the Commission had no website, no telephone assigned and, likely, did nothing, there were no apparent rules restricting the Commission in the number of hearings it can hold or the number of witnesses it can hear, it was the Commission's decision to hear 8 to 16 witnesses a day instead of more than that, and fuller than 10 minutes a witness.

But, let's go to the report, and a very interesting situation with the so-called "luxury of time" emerges.

Here is what the Commission said in its Report and Recommendations of September 24, 2015:

Well, well, well.

As of February 25, 2015 the U.S. Supreme Court has ruled that the COMPOSITION of the disciplinary committees is a big problem, in fact, a problem so big that operating disciplinary committees the way it is done now - by super-majorities of licensed professionals who are regulating other licensed professionals - is running afoul federal antitrust laws, which are, by the way, both civil and criminal.

So, the main concern of courts and committees since February 25, 2015 should have been, first of all, changing THAT problem, so that the committees are not run as criminal cartels.

That issue was not even touched upon by the Commission.

Instead, the Commission was discussing how to mend what is already broken to the point of criminality, as the U.S. Supreme Court said back in February 25, 2015.

That little omission is just one of the untruths about the "luxury of time".

The Commission made a point of analyzing the "history" of discussions - among attorneys and legal scholars only - of problems with uniformity, efficiency and fairness in New York disciplinary proceedings.

The Commission touched NONE of the multiple lawsuits, many of them successful, where various aspects of attorney disciplinary system in New York was found by various courts simply unconstitutional.

Yet, even when Commission analyzed reports by attorneys' associations, it appeared that the problem was not the lack of the "luxury of time", but the lack of desire to change the status quo in attorneys-regulating-attorneys, for their own benefit, obviously.

Look at the dates when issues that the Commission is currently reviewing were raised - and, once again, we are not even talking about the multiple pleadings where such issues were raised, but which the Chair of the Commission, with a stern and hostile face, refused to admit, refused to review, and fled as soon as the witness who was offering those pleadings, Elena Sassower, was shut up by himself and by the big armed court officer looming over her during the "public" hearing in New York City.

I myself know of four lawsuits that only I or my husband brought, where issues that the Commission was discussing, were raised:

  • Neroni v Coccoma (my husband Pro Se), filed in 2013;
  • Neroni v Peebles (myself, Pro Se), filed in 2014
  • Neroni v Zayas (me as an attorney on behalf of my husband as a client), filed in 2013;
  • Peters v Neroni (my removed and then remanded disciplinary case, 2013)
Those same issues appeared in the Report, without attribution to Mr. Neroni or myself (that is called "plagiarism") by members of the Commission who had to read those lawsuits because they were addressed to them and served upon them.

I don't mind so much this little theft of ideas, as I mind dishonesty in the claims that time was a "luxury" and there was no time to thoroughly decide issues raised before the Commission and individual members of the Commission.

Here are the dates from the "history" of attorney discipline in New York, as provided in the Report of the Commission:

Ok, so

  • in 1970 the American Bar Association issued a report, "the Clark Report" that was 45 YEARS AGO, raising the issues of lack of "uniformity in disciplinary enforcement throughout the state"

In 1972 (2 years after the "Clark report") New York State Committee on Disciplinary Enforcement (predecessor of this Commission), a "Christ Committee", "submitted a comprehensive report to the Judicial Conference calling for standardized and uniform procedural rules and regulations etc....", the "Christ Report".

Let us note that the "Christ Report" was issued only in response to the ABA report and not in response to any lawsuits filed by attorneys raising issues of lack of uniformity of discipline, and certainly not on New York State's own initiative.  An outside authority must prod New York State government into action to start thinking of how to improve the system - and even then...

Then in 1981, 11 years after the "Clark report" and 9 years after the "Christ Report", Appellate Division 1st Department invited the ABA's Standing Committee on Professional Discipline to conduct a comparative review of all four disciplinary systems in the state.

In 1982, ABA issued two reports in which it recommended total dismantling of the current system, to be replaced by a statewide court of discipline, a statewide ADMINISTRATIVE BODY, hearing committees and staff.

That was, ladies and gentlemen, 33 years ago!!!

Naturally, in 1983 New York State Bar Association rejected those recommendations.

In 1985 New York State Bar Association issued its own report.

The Commission says nothing about the contents of the 1985 NYSBA report other than that it was inspired by the 1970 Clark Report which it ignored for 15 years before being "inspired", as it also rejected the two subsequent ABA reports.

So, beside scholarly studies also mentioned in the Commission's report, we have the following chronology of reports addressing issues of uniformity and fairness of attorney discipline in New York:

  1. 1970 - ABA "Clark Report"
  2. 1972 - NYS Judicial Conference "Christ Report"
  3. 1982 - ABA Standing Committee's TWO reports
  4. 1983 rejection of 1982 ABA report by NYSBA
  5. 1985 NYSBA report "inspired" by 1970 ABA "Clark's Report"
  6. 2015 Statewide Commission (Cozier's) Report.

So we have a span of 45 years during which time reports were mad by the ABA on the same issue in 1970 (45 years ago), then 12 years later (33 years ago) - and here we are in the year of 2015 with a brand spanking new report, which, very possibly, will be treated the same way the previous reports were - used in the toilet.

Now, with this attitude to the "luxury of time", let's look how the Commission approached its duties.

It called 3 hearings:

  • in Albany;
  • in Buffalo and
  • in NYC

Nobody knows why this magic number.

Why 3? Why not 10, why not as many as needed?

Ok, let's look at how many witnesses testified and how many of those who wanted to orally testify the Commission was "unable to accommodate".

First of all, the Commission reports about its system of notification of the pending public hearings:

Let's note that invitations were NOT e-mailed to legal consumers, and the Commission is deliberately obscure as to who were the "individuals" who were personally invited by e-mail to testify at the public hearings.

There were no publications in newspapers addressing readers in the Buffalo region, New York City region where public hearings were held, and I doubt that Albany Times Union is read by many beyond Albany.

The Commission omits the fact that notices were very short, and that public hearings were held for 2 hours at lunch time during vacation period.

The Commission mentions that it had "time constraints" in conducting the hearings, but does not explain what was the reason for those time constraints.  

If members of the Commission were too busy doing their jobs, there was an easy solution - leave the Commission and let legal consumers sit instead of you, there would have been plenty of volunteers to conduct public hearings for as long as needed and let anybody who wanted to speak, to speak without any time restrictions.

Look at the numbers, ladies and gentlemen!

A total of 31 people appeared, and 50 people who wanted to testify were not allowed to do so.

The Commission could not accommodate JUST 50 WITNESSES!  In public hearings on matters of serious public concerns that were not properly addressed since the Clark report of 1970, 45 years ago!

If 31 witnesses were heard in 3 days (with time restrictions), all 81 people could be heard in, let's say, 10 days without any time restrictions.

The Commission was announced in February, formed in March and submitted the report in September.

They did not have 10 days to accommodate just 50 extra witnesses?

While the witnesses that they invited were, in their absolute majority, attorneys?

Those are called PUBLIC hearings?

And wait, the Commission patted itself on the head as to how good it was in inviting reporters to the hearings:

So, the Report claims that a "videographer" was allegedly present to record the "entire proceeding".  But, I was not given that recording pursuant to my FOIL request.

Also, the Commission modestly claimed that "an investigative reporter and photographer" from Long Island Backstory was present at the proceeding, with an inactive link leading to the general page of Long Island Backstory on YouTube (while there was an active link to publication in the New York Law Journal), yet the Commission report fails to mention that the "VIDEOGRAPHER" from the same Long Island Backstory, together with Gary Jacobs, the investigative reporter, was thrown out of the building when they attempted video recording, and a demand was made by a representative of the Commission that Gary Jacobs must leave the sidewalk before the building where the hearing was held, too, and that a video report of that incident was also available on YouTube, exposing the Commission for the sham that it is.

The Commission did not mention in its report that investigative journalist Gary Jacobs, from Long Island Backstory, simply suggested for the Commission to call the police to get him and his videographer off the sidewalk, which was, obviously bad for publicity for the Commission and was not done.

I ran a blog about this video report here.

And, the Commission does not mention the post-hearing video report of Elena Sassower describing how the Commission refused to see records material and relevant to the issues that were in front of the Commission, which Elena Sassower painstakingly put together and brought to the Commission - only to be rejected by Cozier.  

Or Elena Sassower's statement post-hearing that courts are responsible for having the attorney disciplinary law in disarray by refusing to address attorneys' pleadings without an explanation.  Elena Sassower mentioned that she had a lot more to say and was not allowed to cover her topics.  

Or how members of the Commission fled after it closed the hearing, obviously afraid of any questions or comments from the public.  

Or that the system is dysfunctional and corrupt, and those who were sitting in the presiding panel were responsible for that state of events.

There was simply NO GOOD REASON why witnesses who wanted to present any critical arguments or evidence, were harassed by the Commission, cut off, refused extra time, refused opportunity to present to the Commission important issues.

Omissions by the Commission in its Report as to what REALLY happened in the proceedings shows that the Commission was AFRAID that a proper record of the proceedings would be made by a professional crew of investigative journalists, capturing at the right angles, focuses and zooms, facial expressions and actions of participants and the presiding panel.

There is not one mention in the Commission's Report of criticism in the press and social media of its work, only references to laudatory reports.

Such self-praising presentation also does not promise that any real reforms will be made by this Commission.

So - too much time to save face, not enough time to do its job, so we are looking at another 45 years before any changes will be made in the old boys' club?

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