"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 the NYS Statewide Commission on Attorney Discipline: No Luxury of Time, Round 2

I have posted here today an analysis of the claim of the Cozier Commission (for shortness' sake) that time was a luxury and it did not have time to implement recommendations that it was making.

Let's review whether that was true.

Here are some of the recommendations of the Commission, with comments:

Note that the Commission carefully avoids the sticky issue that what constitutes the PRACTICE OF LAW that is regulated by attorney licensing, IS NOT DEFINED BY NEW YORK LAW.  When the subject of regulation is not defined (and that continues to be the subject of Neroni v Zayas lawsuit, appeal pending in the 2nd Circuit), how can one define "professional misconduct" in practicing nobody-knows-what?

A noble task, but representatives of 4 departments were members of the Commission, what prevented them, over 6 months time, to come to a consensus on rules that they themselves can issue without asking permission of Chief Judge Lippman or anybody else and without public hearings or reports?

And, seems hypocritical to me to claim that there is no such system at this time, but to continue to enforce it and not stay it until such uniform rules are in place

There are already in place court procedures for conservatorships.  No additional proceedings are necessary, so here the Commission is using its "time which is luxury" on something that already exists.

Not to mention the awkward working/typo, this is a good point, because at this time the only way to accept resignation is through admission of wrongdoing, and many people would not like to do that, continuing litigation.  Yet, once again, representatives of 4 Appellate Divisions were already members of the Commission and could just DO that, pursuant to their rule-making power, at any time, without any reports and recommendations.

This is rich, coming from this particular Commission, with this particular membership.

There was testimony before the Commission that complaints of legal consumers are rejected without explanation and complainants are not given any explanation (Ms. Alves' testimony in the New York City hearing):

But, look at the testimony of Timothy O'Sullivan, the chief attorney of the Lawyers' Fund for Client Protection who was called as the very first witness at the very first hearing, and was, thus, considered by the Commission to be the most important witness at the hearings.
Timothy O'Sullivan admits that the fund's goal is to protect legal consumers specifically from DISHONEST behavior of attorneys.

That restricts Timothy O'Sullivan's authority to receiving sanctions specifically for DISHONEST behavior of attorneys.
Yet, in my practice, Timothy O'Sullivan runs disciplinary committee as a cheap collection agency for his trust fund to shake out civil rights attorneys of sanctions imposed for making motions to recuse judges raising constitutional issues of public concern.
Those retaliatory sanctions, imposed for motions to recuse that clients wanted, needed and asked for, have nothing to do with DISHONEST behavior of attorneys toward clients.
Yet, Timothy O'Sullivan continues to relentlessly work as a shakeout and continues to use the disciplinary committees as collection agencies, even though collection on judgments is NOT their function, and Timothy O'Sullivan acknowledges that he simultaneously refers unpaid sanctions to the disciplinary committee AND to the New York State Attorney General "for collection", but collection through harassment by the disciplinary committee is obviously faster and cheaper.

I already sued Timothy O'Sullivan and his fund for exactly that in Neroni v Peebles, but the lawsuit was dismissed because of various court-created restrictions to jurisdiction, without reaching the merits of the case.
Look how Timothy O'Sullivan proudly admits to using disciplinary committees as cheap collection agencies:
Wait, didn't Ms. Alves testify that 98% of complaints get dismissed without an explanation to the complainants?

So, there are complainants and complainants?

Some whose complaints are dismissed without an explanation, and some, like Timothy O'Sullivan, whose shakeout efforts receive "invaluable assistance and unfailing support" that they "receive daily from HIS COLLEAGUES in the attorney disciplinary system".

Wait, wait, wait.

So, Timothy O'Sullivan, unbeknownst to legal consumers or attorneys, is now deems himself a COLLEAGUE of the disciplinary committee, a PART of it?

And, as PART of it, has access to information that is not shown to other complainants?


Timothy O'Sullivan kept going on.  He states, with iron fervor, that those attorneys who steal must be disbarred.

Who would argue?

Yet, Cornelia Cahill, wife of Chief Judge of New York State Court of Claim Richard Sise, was not disbarred by Timothy O'Sullivan's colleagues, when she, and 100 more attorneys, were caught stealing from state benefits and pension system, pretending they are employees of the school system when they were not, doing it for YEARS AND DECADES, and Timothy O'Sullivan does not seem to raise any riots.

Cornelia Cahill, instead of being disbarred, was accepted AS A LAW PARTNER in the law firm of one of members of the disciplinary committees who was charged with a duty to investigate and prosecute her!  That's one way to give a judge a favor and promote one's business, isn't it - to save his wife from disbarment?

Steven Baum whose law firm was behind the "robosigning" scandal in judicial foreclosures, against whom the feds were making probes as to his "faulty filings" in foreclosure cases, who, thus, was responsible for helping steal thousands of homes from New Yorkers, was not disbarred or publicly disciplined, and I did not see any statements by Timothy O'Sullivan concerned about that state of events, of Steven Baum's dishonesty as an attorney.

The list goes on and on.

Timothy O'Sullivan doesn't stir.

Timothy O'Sullivan boldly claims that attorneys who steal must be referred for prosecution to criminal prosecutors, as part of a uniform policy.  

Great!  Cornelia Cahill and Steven Baum, too?  Or just solo and small firm independent criminal defense and civil rights attorneys?

One of the witnesses who testified before the Commission in New York City, was not at all confident that any new rules or policies will be followed though:

No mentioning of this "elephant in the room" in Timothy O'Sullivan's speech and none in the Commission's report.

You know what Timothy O'Sullivan REALLY concerned about? 

To make "dispositions" in attorney disciplinary proceedings FASTER.  That means, to afford an attorney even less time than he/she currently has to answer the complaint - now it is even less than allowed for a civil lawsuit, which is already an equal protection problem.

And what speedy dispositions Timothy O'Sullivan may be seeking from courts and attorney disciplinary committees?  Of course, the GUILTY dispositions, because he will not get any money out of not guilty dispositions.

So, Timothy O'Sullivan is one complainant who attempts to influence speed - and fairness - of attorney disciplinary proceedings to do his shakeout job faster.  Great for uniformity, great for efficiency, not great for fairness.

So, to sum up on the issue of dismissing complaints, the following rule emerges:

  • when a lay consumer files a complaint, it is usually dismissed without an explanation;
  • if a judge imposes a sanction, often arbitrary, and often because the judge is pissed off because the judge's own misconduct is challenged on a motion to recuse, that complaint, made by Timothy O'Sullivan, is given a priority and is ALWAYS investigated and prosecuted - even when sanctions are imposed NOT for dishonest behavior of an attorney, which is the ONLY basis of sanctions for which Timothy O'Sullivan can collect, because the goals for which his Fund was created was to protect legal consumes from DISHONEST behavior of attorneys
Maintaining any kind of appearances of any kind of governmental agency in public eye ("public confidence in the integrity of the system"), or PR, cannot be enforced through sanctions on attorneys, and is NOT a legitimate governmental interest.

Nor can it be maintained by the system where Cornelia Cahill, Steven Baum and similarly influential attorneys who were involved in egregious misconduct continue to practice while civil rights attorneys get disbarred for raising constitutional issues in court on behalf of clients addressing judicial misconduct.

But, let's go further as to the Commission's Report.

Here are further recommendations by the Commission.

Once again the Commission delves where laws are already established.

Same as the committees have discretion to prosecute or not prosecute, district attorneys have discretion to prosecute or not prosecute crimes, and may not be influenced by disciplinary committees.  And, the Committee does not have a "role" at the beginning stages of criminal adjudication.  Moreover, what happened with presumption of innocence?  

Such an accusatory tone of the Commission and the committees where a person is only ACCUSED of committing a crime, which in any court may not be considered as any kind of EVIDENCE against that person, already says volumes about "fairness" afforded to attorneys by such "knowledgeable" and "unbiased" committees.

This rule is already part of Judiciary Law 90, and the only collateral estoppel that the statute permits (not that courts or committees are following the statutory restrictions) are on two occasions:

  • conviction for a felony;
  • contempt of court order of child support

So, disciplinary committees are not really concerned about fairness, they are concerned about prosecuting attorneys faster, so that Timothy O'Sullivan can do his shakeout job faster, and so that committee members can get rid of competition faster, in violation of federal antitrust laws.  But, that has nothing to do with fairness.

The Commission does not mention that the Committees should be prohibited to bring up civil rights litigation AGAINST THEMSELVES for violating attorneys' constitutional rights during disbarment proceedings, as a preclusion for reinstatement, even though they regularly claim that trying to get a remedy from federal court because of their own misconduct or, God forbid, testifying before a public agency about corruption in the government, characterizes an attorney as unfit for reinstatement.

Yes, yes, yes!  That's exactly what I said in Neroni v Zayas lawsuit, Ms. Duffy, Ms. Peters, the Third Department Court! Are you withdrawing your opposition in that lawsuit on those same issues?  I guess, not.  So, how come you maintain those diametrically opposite positions?  Isn't that frivolous?

And - can't you, members of Commission who are also members of the 4 Appellate Division just DO it without "reports or recommendations", through promulgating rules that you otherwise promulgate without asking anyone?

Yes, yes, yes!  That's what I said in Neroni v Zayas, but didn't you ask the court to dismiss that lawsuit because the complainant does not have a "justiciable interest" in the complaint?  And obtained a dismissal? And are opposing NOW appeal of that dismissal?  How come, once again, such irreconcilable and frivolous positions in the Commission and in court?

And - can't you, members of Commission who are also members of the 4 Appellate Division just DO it without "reports or recommendations", through promulgating rules that you otherwise promulgate without asking anyone?

Yes, yes, yes!  It is the same argument you rejected and continue to reject in Neroni v Zayas! and that you can correct yourself, without reports or recommendations, and without wasting public time or money.

Yes, yes, yes!  How about withdrawing that "no justiciable interest" defense in Neroni v Zayas?  And how about just MAKING such a rule without reports or recommendations?

Now, this one is extremely interesting.  While the U.S. Supreme Court encouraged, by its decision in North Carolina Board of Dental Examiners v. FTC, decided in February 25, 2015, to CREATE panels without super-majorities of attorneys, and instead with supermajorities of legal consumers, our brave Commission wants to do the opposite - to extinguish the only sparkle of radical thought in the First Department that actually allows hearing panels, and not decisions over attorneys by attorneys.

Yes, yes, yes!  Now, will you guys withdraw your opposition to the Mr. Neroni's attempts to get access to his own disciplinary file, to the records showing voting for investigation and prosecution in his case?  Because you think such decisions should not be made unilaterally?

This is a further assault on the revolutionary First Department, instigator of ABA reports, holder of hearing panels in disciplinary proceedings. 

What about out-of-state attorneys?  Who do not have a registered office address and who reside outside of the State?  Recently, a federal court ruled that requiring a physical office from an out-of-state attorney is unconstitutional.  The Commission does not care what federal courts say about unconstitutionality of their proceedings?

This one contradicts the previous one, but oh well.

Mamma mia, this one is EXACTLY to answer the challenge in Neroni v Zayas and directly contrary to testimony and requests of lay witnesses at public hearings.  

While we were arguing in Neroni v Zayas that disciplinary committees MUST keep records of discipline for ALL attorneys, with proper indexing and archiving, for further review as to selective enforcement issues and verification of whether certain discipline was, in fact, imposed, committees are lobbying elimination of ANY records for their private discipline.

This rule was adopted, very likely, because of public pressure to disclose dismissals of complaints and analyze possible selective enforcement.

You cannot analyze oral discipline, or lack thereof, can you.

On the other hand, committees can always argue against attorneys they want to disbar, as a point of "aggravating circumstance" that these attorneys were previously disciplined through an "oral admonishment".  How can you prove or disprove that there was an oral admonishment?  If it will be proven on affidavits by members or attorneys of the committees prepared for litigation, those affidavits will be freely given, perjured and all.  No problem.  I am seeing it all the time.

So, will we next have oral money judgments?

Oral criminal convictions?

And all of those oral things made upon oral submissions by attorneys and oral acceptance by courts and agencies?

Will eliminate the necessity to create any records completely.

A lovely idea, I wonder who was the author.

When these guys are engaged in a lobbying frenzy, they seem to switch off their brains and do not even think how they actually look.

So, the Commission, claiming that "time is a luxury", 

  • proposed to invent laws that already exist:
    • for incompetents and
    • for criminal prosecutions of theft;
  • proposed rules that did not have to be proposed because
    • courts already have authority of rule-making and can do it without reports or recommendations, and because
    • the same courts and committees are opposing the same issues at the very same time in multiple lawsuits in federal court - appears frivolous to me
  • engaged in relentless efforts to further defy antitrust law and to allow further selective enforcement of attorney discipline:
    • by trying to quash the "revolutionary" undertakings in the First Department, and
    • by trying to introduce "oral" discipline against attorneys, thus avoiding public scrutiny of selective enforcement and further selective enforcement by being able to claim aggravating circumstances against targeted attorneys backed up by perjured affidavits only, no records of admonishment proceedings
In other words, they WASTED OUR TIME AND MONEY.

What can you expect from crooks who are responsible for the current mess to begin with?  That they will suddenly get honest and correct it?

On this harmonious note let me finish today's analysis of the Report.  I will continue, there are other outstanding issues remaining.

Stay tuned.

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