"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.

Sunday, September 27, 2015

The Report of NYS Statewide Commission for Attorney Discipline: fraud upon the court by 3rd Department on the 3rd Department? Oh, well

I am continuing to publish my analysis of the Report of the New York State Statewide Commission on Attorney Discipline.

2 officials from NYS Appellate Division 3rd Department (a deputy clerk and counsel for the chief judge Karen Peters) and 2 officials from that court's Committee for professional discipline (Monica Duffy, Samantha Holbrook) were members of the Commission, and thus, authored the Report and knew about its contents.

Parallel to the work of the commission I had two ongoing cases:

  • Neroni v Zayas in the U.S. District Court in the Northern District of New York and
  • my own disciplinary case which was
    • started in the 3rd Department, 
    • removed to NDNY, 
    • remanded to the 3rd Department and 
    • transferred to the 4th Department, where it sits now
On page 9 of the Report published on September 24, 2015 I read that the Third Department has a standard of proof in its disciplinary proceedings by clear and convincing evidence.

If that was true, disbarment of my husband would not have been possible, because he was disbarred WITHOUT A HEARING, based on application of the so-called collateral estoppel to a decision made to a lower evidentiary standard, by preponderance of the evidence.

My claims to the 3rd Department that my husband's case needs to be decided to the standard "by clear and convincing evidence" were rejected.

On pages 40-42 of the Amended Complaint in Neroni v Zayas, on February 9, 2015, I put in the following claims on behalf of my husband Frederick J. Neroni, specifically claiming that the roller-coaster of standards of proof in the 3rd Department, with:

  • clear and convincing evidence standard in disciplinary proceedings leading to private discipline (letter of education, caution, admonition);
  • lower preponderance of the evidence standard for public discipline such as censure, suspension and disbarment (applied to my husband); and
  • the back-to-clear and convincing evidence standard in license reinstatement proceedings 
is arbitrary and a violation of attorneys' due process and equal protection of laws.

Defendants in that case were the same Duffy and Peters.

They had ample opportunity to say - hey, you are wrong, our standard of proof (established by Peters as a legislator and then applied by Peters as an adjudicator) is clear and convincing evidence throughout!

No, they did not say that, because had they said that, I would have immediately moved to vacate the order of disbarment of my husband.

And, they fought tooth and claw in my husband's disciplinary case arguing to the court that the proper standard of proof is by preponderance of the evidence.

So, in Neroni v Zayas, Duffy and Peters perpetuated their misconduct by obtaining a dismissal of my claims as to this roller-coaster of evidentiary standards on Rooker-Feldman grounds which were not applicable (that was on March of 2014 and June of 2015), and then, on September 24, 2015, they stated with straight faces in the Report on FAIRNESS to attorneys during discipline that their standard of proof is actually by clear and convincing evidence.


I cannot sue them for fraud - they will cover up with immunity.

I cannot have them disciplined - because people sitting on the Judicial Conduct Commission are attorneys whose own licenses are in the hands of judges they are investigating, and Duffy already refused to refer the case against herself to a special investigator and prosecutor, instead dismissing it.

I doubt I can bring criminal proceedings against them, because Albany County District Attorney is a licensed attorney, was already censured for criticism of judges and will tiptoe a thin line wherever judicial misconduct is concerned.

So - what is the remedy for this fraud?

Any suggestions?

What remains is - for any pending disciplinary cases in the 3rd Department, DEMAND application of their declared standard of proof - by clear and convincing evidence, and quote page 9 of the Commission's report.

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