Transcript of NYC public hearing before the Commission for Statewide attorney discipline shows that the Commission is not interested in hearing about public concerns or making any changes in the system

I read yesterday, in utter disgust, the 161-page transcript of the not-so-public hearing before the Statewide Commission for Attorney discipline that was held this past August in New York City.

If you remember, that was the hearing where a reporter with a video crew came, and was not allowed not into the public hearing - in violation of Open Meetings Law - but in the building where the hearing was taking place, and there was a demand made that he leave even the public sidewalk in front of the building, which Gary Jacobs refused to do and instead asked the demanding representative of the Commission to call the police.  They did not do.  They are cowards and did not want THAT kind of publicity.  They "only" wanted to conceal the outrageous way how the "public" hearing was going to be handled - and how it was, eventually, handled.

Well, first of all, the disparity in treatment.

There were, if I counted correctly, 13 witnesses testifying that day.  The Commission "allowed" an "extra hour" for the testimony.  So, it was supposedly 16 witnesses in 3 hours, minus two because two pairs of witnesses was given 10 minutes per pair.  So, 14 witnesses for time limit purposes.  10 minutes each.  10 minutes each times 14 witnesses is 140 minutes, or 2 hours 20 minutes.  I wonder if 40 minutes were needed for the politically correct self-congratulations by members of the Commission, and by attorney witnesses, of how good the Commission is, how good Chief Judge Lippman is for creating the Commission, how good retired administrative judge Prudenti is for initially handling the Commission etc.

By the way, at the end of the day, when lay witnesses were finally allowed to testify (and were handled rudely by the same Chair of the Commission who exuded sweetness to attorneys and heads of bar associations testifying prior to the lay witnesses), Elena Sassower, Director of the Center of Judicial Accountability, took the stand, and actually stated that, before she started to actively inquire into the actions of the Commission, the Commission (guided by the allegedly "wonderful stewardship" of Gail Prudenti) did not have a telephone number, a website, or any schedule of public hearings, or any plan or strategy how to proceed.

Yet, time was wasted by the presiding member of the Commission to bow to Gail Prudenti's "wonderful stewardship".

I guess, no matter what is happening, brown-nosing comes first.  After all, the super-majority of the Commission were licensed attorneys and, thus, market players who were not interested in changing the status quo.

The identity, sequence of witnesses, issues they raised, proposals they made and how the proposals were handled by the Commission, depending on whether the proposal touched upon vested financial interests of the Commission's members, is a separate story.

And, some testimony in NYC echoed with testimony in the prior two "public" hearings in Albany and in Buffalo (of which I still did not receive responses to my FOIL request, even though I made those FOIL requests more than 5 days ago), and undermined credibility of certain witnesses testifying in the prior hearings - and of some members of the Commission who attempted to rebut, or rather, to shut up, the scant public criticism that was allowed through testimony before the Commission.

Here is the list of witnesses who testified before the Commission in NYC, with a summary of their respective list of issues and solutions.  After this list of witnesses, I will publish lists of witnesses and issues in the Albany and the Buffalo hearings.  Since the NYC hearing was the most explosive and most closely came to raise the actual issues that are boggling attorney disciplinary system in the State of New York, I will start with the NYC hearing and will go back to the Albany and Buffalo hearing, to show how the issues were raised and handled there.

I will remind the readers before I publish the list of issues that the Commission was created when the U.S. Supreme Court stripped members of disciplinary boards dominated by super-majorities of market players of their antitrust immunity, exposing them to criminal liability to felony antitrust violations and to civil liability in lawsuits under the Sherman Act, presupposing treble (three times) money damages.

THAT was the real reason for creating the Commission, yet, from hearing to hearing to hearing, the Commission members claimed that it was created to "explore" these issues:

1. whether attorney discipline administered by four appellate divisions based on their own departmental rules should be made more uniform and converted into a statewide attorney disciplinary system;
2. whether rules should be change to provide attorneys with some discovery, such as in other civil court proceedings;
3. whether, and at what point, confidentiality of attorney disciplinary proceedings should be lifted before the final imposition of discipline;
4. how to make attorney disciplinary system "more fair, uniform and efficient" to balance fairness to attorneys while protecting the public.

Somehow, only attorney members of the Commission were present in all three "public" hearings, testimony was by invitation only, and the overwhelming number of witnesses invited to testify in front of the all-attorney panels were attorneys, not consumers of legal services.

The U.S. Supreme Court case was never mentioned throughout the three hearings, I diligently went through all three of them.

Critics of the system were attacked by questions by attorney members of the Commission according to the following pattern:

• if the critic was basing his or her criticism not on his own experience, but on studies, their evidence was attacked as "anecdotal" and unreliable - even when they said that the reason why it is anecdotal is because either statistics is not kept by the disciplinary committees, or the records are not available from the disciplinary committees;
• if the critic was basing his or her criticism on his own experience, that was rejected as too personal, the "sour grapes" kind of thing.

So, the committees block access to information, create no statistics, keep no archives, allow no public audits of what they are doing - and then rebut criticism of their work based on the lack of information that the committees arranged.

Also, I wrote on this blog and on the new blog "Disbarred But Not Beheaded" about the pending appeal in a civil rights case Neroni v Zayas, where I described that the very same members of the Commission who are supposedly convened to hear all issues "from top to bottom" and provide recommendations to the New York court system as to how to reform the system of attorney discipline, are opposing the very same issues that are raised in front of them in the Commission in the lawsuit in Neroni v Zayas - which makes their opposition to the appeal in Neroni v Zayas frivolous and fraudulent, and their claims of goals in the Commission hypocritical.

So, here is a table with the preliminary (and short) overview of issues raised at the NYC public hearing before the Statewide Commission for attorney discipline.

No.	Name	Organization	Attorney Or Lay Witness/ Issue	Questions by the Commission	Rude treatment, attempts to cut off
1.	Andrea Bonina	NYS Academy of Trial Lawyers	Attorney Change nothing in the current disciplinary process	Yes	No
2	Pery Krinsky	NYS Academy of Trial Lawyers	Attorney, Same as Bonina	Yes	No
3	Karen Winner	No affiliation, a New York attorney	Attorney, Secrecy in disciplinary proceedings hurts consumers	Yes, aggressive	Yes.  Attempts to discredit through aggressive questioning, putting her down (“you are sort of an academic”), witness was testifying about improper dismissals of meritorious disciplinary complaints, public was applauding, advice to “participants today to try and maintain some control”
4	Deborah Scalise	Scalise, Hamilton & Sheridan, in Scarsdale, former Deputy Counsel at the Disciplinry Committee, “now my career is on the other side”.	Attorney, necessity for diversion programs for attorneys in disciplinary process	Yes	No
5	Bennett Gershman	Professor of law at Pace Law School	Attorney, non-prosecution of prosecutorial misconduct	Yes, extensive questions	Commission members made statements indicating that disciplinary committees lack power to compel the prosecutor to produce files necessary for investigation
6	Daniel Marotta	President, Richmond County Bar Association	Attorney, there should be measures in place to weed out early on unfounded complaints – notarization of complaints, filing fee of $100 with a waiver for poor persons,	Yes, added time for testimony through questions Several members of the Commission asked questions	No, very polite
7	Allyn Crawford	Vice- President, Richmond County Bar Association	Attorney
8	Robert Tembeckjian	Administrator and Counsel, NYS Commission on Judicial Conduct	Attorney,  praised himself and his Commission for effectively handling theft by judges of public funds, vouched for uniform system of attorney discipline, continue discipline in 4 departments, but provide uniformity through rules from the Chief Judge	Yes	No
9	Andrea Composto	NYS Women’s Bar Association	Attorney, suggests a comprehensive review of 10 years worth of disciplinary cases in all 4 departments, then make suggestions - but what if dismissals are not reflected in the record?   Harmonize rules between Departments, provide means for an attorney to enter into a settlement early on, opposes making the proceedings public before imposition of discipline	Yes, a Commission member stated that it is troubling IF meritorious complaints are dismissed and MAYBE the Commission should look into it (how – if records are not kept?)
10	Carol Sigmond	President, NY County Lawyers Bar Association	Attorney, the move for procedural uniformity “should be guided by the geographic and population differences in the departments”.  So, still no uniformity. Opposes statewide attorney disciplinary system.  Give disciplinary committee more financial resources and introduce plea bargaining to allow quicker resolutions. Supports discovery for attorneys. Prefers referee (retired judges) to panels (possibly including lay legal consumers).  Opposes opening up the disciplinary process to the public.
11	J. Richard Supple Jr	New York City Bar Association, Committee of Professional Discipline	Attorney, supports uniformity of rules, supports disclosure to the attorney during proceedings, subpoena power to the attorney, access to the disciplinary file of the committee, ability to take depositions of committee’s witnesses and the accuser.  Supports greater screening of unfounded complaints.  Urges more use of mediation.   Supports plea bargaining.  Claims that complaints from judges are not revealed to the attorney by the committees.  Opposes hearing panels claiming they are “hard to convene”.	Yes. Skelos asks what empirical evidence witness has to suggest that cases are tossed between committees with no action taken, witness answers that the system is closed, information is private, he can judge only from personal observations and his own practice.	Yes. Skelos  was aggressive, claimed that he sat on the Appellate Division for 11 years and did not see any problematic cases that the witness (who practices in the field of attorney discipline for years) was talking about
12	Prof. Caprice Alves	No affiliation	Non-attorney, consumer perspective.  Supports publicizing complaints where probable cause is found.  Asks if she should name lawyers committing misconduct, Commission says “no”.  Describes a situation where 3 weeks after her disciplinary complaints were dismissed, the lawyer was arrested by the FBI.  Topic of her dissertation is “An Analysis of the Perception of the Legal Profession Through the Eyes of Dissatisfied Consumers of Legal Services in Manhattan, New York”.  Three complaints were dismissed without an explanation, she published information about misconduct online, got sued by lawyer for defamation. Opposes confidentiality of proceedings, says it hurts consumers, consumers choose attorneys they wouldn’t have chosen had they known of disciplinary proceedings.	Yes	No
13	Janice Schacter Lintz	No affiliation	Retired attorney, testified about the same issues before Congress and the Moreland Commission.  Supports uniformity of proceedings, greater transparency of disciplinary proceedings to protect the public.  States that centralized discipline system will help eliminate the local collusion of attorneys with judges, including through out-of-court connections through bar associations.  Urges to “codify” billing practices and introduce strict censure if attorneys fail to bill timely.  Urges to post online all book deals where attorneys curry favors from judges and other attorneys through “contributing quotes to books”, receiving speaking engagements and/or free passes to conferences.  Urges to have attorneys and judges disclose such income on a state controlled form listing who provided the benefit.  Urges to prohibit law clerks to be employed by law firms appearing before judges for whom the law clerks worked. Urges to require lawyers to sign statements disclosing all conflicts of interest, with censure for failure to do that, and license revocation for a second violation.  Asks to investigate the New York City Bar Association because “committee appointments are made at the unfettered discretion of the NYC bar president”.  Claims that a sitting judge, Evans, meets with “invited” attorneys on select committees, and that the bar gives certain attorneys preferential access to sitting judges. Claims she was rejected from sitting on the Committee when she applied, while she observed the judge in a room communicating with “key matrimonial lawyers”.  Claimed that “Ethics Committees are packed with ‘besties” overseeing their friends.  Urged that Ethics Committees need to be transparent and that sessions need to be public to avoid any appearance of helping out a friend, same as the public is subject to open courtroom and the media. Claims that empirical evidence that the Commission is seeking will appear when proceedings are made open to the public.	Yes. Question about Judge Drager who ordered witness to be in handcuffs and threatened to put her into Rikers for 20 days – whether the judge did put her in jail or not No other questions Witness claimed she is denied equal treatment with previous witnesses who were asked a lot of questions The public urges the Commission to ask witness questions Cozier explains that the witness’s testimony was different from testimony of previous witnesses because she allegedly “didn’t address the issues”, “you did mention the uniformed rules, a couple of things, but we understand the testimony, so if we don’t have any further questions”… Witness claims that she is sitting on state and federal committees for public policy, that she has made multiple disciplinary complaints and they were all dismissed without an explanation.  Explains that, had the dismissals been public record, it would have revealed that complaints are being made repeatedly, by different people, against the same attorneys and on the same issues, which would have facilitated attorney discipline.	Yes, when the public indicated they could not hear the witness and asked her to adjust the microphone, Cozier told the public not to “comment”. Witness asked for an extra minute because she had a problem dealing with microphone, Cozier denied her the extra minute Threatened to take out of the room a member of the public who commented on Cozier’s handling of the witness
14	Ellen Oxman	No affiliation	Non-attorney. Claims “there is an elephant in the room”, and that elephant is that no matter what rules exist (or will be introduced), they are not followed, and nothing will get changed if the new rules are not followed, too.  Claims there is no oversight over the Commission for Judicial Conduct or of the Attorney Disciplinary Committee, and there is “overwhelming evidence of corruption”, which is “well-documented”.  Claims “they simply don’t follow the rules when they don’t want to and there is nothing to be done about it”. Claims that “it is an open secret that these offices have been run in a rogue manner to target or protect select attorneys”.  Points out to the Murphy report on corruption in the First Department back in 1989, and claims corruption nowadays is much worse. Claims that 20 years later stories of same or worse corruption were heard at Senator Sampson’s 2009 hearings, then records of hearings disappeared and Senator Sampson was convicted. Claims you can make all the laws you want against looting, “but if the police … turn the lights off and lock the precinct doors, there will be looting on the streets and that is what you’re seeing”.  Claims NYS court system is “probably the most corrupt court system in the United States” (Applause from the public), “with the most corrupt attorneys in the history of this country who go blithely unpunished and are fully protected by those who are charged with exposing them”.  Questions how Judge Gonzalez, after acknowledging misconduct and untruthful behavior with mortgages, can preside over cases of attorney ethics. Points out that the mission statement of the Commission completely sidesteps the issue of corruption. States “here we are again today, pretending there is no corruption.  That we need to improve the rules”. Claims that meritorious disciplinary complaints are dismissed because of corruption in the disciplinary committees.  Claims that the Committees and the Commission on Judicial Conduct do nothing to address the issue of corruption of attorneys and judges that is destroying the court system. “Right now, that is your terrible legacy and instead of addressing it, you mock the public”. Claims that she is a victim of domestic violence from her husband, a famous lawyer, and that he escapes accountability because of his connections.	No questions whatsoever, even though, with previous witnesses, Cozier and Skelos were active asking for “empirical evidence”.  Here, the witness gave some undisclosed statistics to the Commission, in written format, and the Commission ignored the materials completely	Zauderer was rude with the lay witness.  When the witness said “I am giving you this because I believe you asked for some statistics, Zauderer said:  “Give it to Mr. Caher in the back”.  No “please”, as he addressed attorney witnesses.
15	Alton Maddox	No affiliation	Suspended attorney, claims that he is the leading voice in the black community, that the court system is racially biased, that a black person cannot expect fairness in that biased court system and that Mr. Maddox was suspended because he was effectively representing people in court. Claims that “blacks must boycott New York courts now”.   Accuses the Commission of bias because they did not want to ask questions of the previous witness on the issues of corruption in the court system.	Yes.  Witness was asked his opinion about opening up the disciplinary process. Mr. Maddox supported opening attorney disciplinary proceedings as a matter of 14th Amendment right of the disciplined attorney.  Claims that secrecy did not help him, and claimed that he does not want “to have the privilege of being a lawyer elevating [him] above the common people”.	Was handled politely.
16	Elena Sassower	Director, Center for Judicial Accountability	Non-attorney, daughter of two whistleblower attorneys who were disbarred (father) and suspended indefinitely (mother) for exposing judicial misconduct.  Stated that because of judicial corruption that her organization fights, attorney disciplinary proceedings are used “to protect and insulate from accountability the politically connected attorneys and to retaliate against judicial whistleblowing ones”.  Claims that the current system of attorney discipline exists for 35 years, and that it survived because “no one in a position of power or influence has confronted the proof of its dysfunction, corruption and politicization”. Ms. Sassower stated that “because [she] knew and understand that the attorney disciplinary system cannot survive an evidentiary presentation”, she contacted the Office of Court Administration to inquire WHETHER hearings would be held by the Commission – and at that point, the Commission did not have a phone, a website, or any schedule of hearings, so Ms. Sassower indicates, as I understood it, that until she urged the Commission into action, “until the third week of June” the Commission was “inaccessible”. Ms. Sassower provided statistics and indicated that they are not publicly available on the Commission’s website.  Ms. Sassower calls grievance committees “sham entities” where complaints are handled by staff and members of the committees do not even get to know the contents of the complaints before they are dismissed by staff.  Ms. Sassower urged the need for more statistics, to be able to see the complaints and dismissal letters side by side, to see whether dismissals (about 70% of all complaints in all departments, without investigation) are proper.  Witness states that lack of auditing of the activities of attorney disciplinary committees is a problem, that the Judicial Conduct Commission refused an audit from the State Comptroller urging the Comptroller to issue a report “Not Accountable to the Public”.		Cozier refused to accept a written submission from Ms. Sassower, even though he allowed other witnesses to provide written submissions if they did not have enough time to testify orally. Ms. Sassower claimed she was just presenting statistics and other information “that will make the testimony”, and was cut off at that point by Cozier At the end of Ms. Sassower’s testimony, Cozier relentlessly imposes the time limit upon Ms. Sassower while she is trying to point out to the Commission where the Commission can get information and arguments about unconstitutionality of NYS Attorney disciplinary system (pleadings of disciplined attorneys that became public record when discipline was imposed). The public urged to ask Ms. Sassower questions. Ms. Sassower wanted to address the question that Zauderer asked at the Albany hearing. Zauderer consented to hear her answer. Cozier repeatedly continued to try to cut Ms. Sassower off and prevent her from answering Mr. Zauderer’s question at the Albany hearing that Mr. Zauderer allowed her to answer.  Even when the public asked him to allow her to continue. Cozier finally relented and grudgingly allowed Ms. Sassower to answer the question as to what opposition can exist to the right of an attorney to discovery in the disciplinary proceedings that the president of the State bar was unable to answer in the Albany hearing. When Ms. Sassower, answering the question “what” is the opposition, claimed that the opposition comes from the court system where courts refuse to listen or respond to constitutional arguments of attorneys in support of discovery in disciplinary proceedings, Cozier cut her off while stating “Ms. Sassower, I think you have said enough”, despite public support of her statement, and did not allow her to finish or elaborate on that answer. Because Ms. Sassower was cut off on the most important topic that the judiciary is the main bar to adjustment of attorney disciplinary proceedings and making them comply with constitutional due process and fairness requirements, Ms. Sassower tried to briefly touch upon one more topic – lack of funding of attorney disciplinary system, at the same time as judges obtained for themselves a pay raise that cost taxpayers at least 10 times more than attorney disciplinary budgets. Cozier then closed the testimony.

I would like to point out the following order in which witnesses were called:

• first, 11 (!) attorneys were called, mostly heads of various bar associations, and one law professor;  the attorneys were treated politely - if they did not raise sensitive issues, otherwise they were aggressively questioned by Commission members (Cozier and Skelos, more on Skelos' own appearance of ethical challenges in a separate blog post);
• then, 3 legal consumers (one of them still a retired attorney and the other an attorney's wife) were called, the first lay consumer (a professor) was treated politely, but the next two were discriminated against - one by denying her an extra minute of testimony that she lost because the Commission did not provide her with a functional microphone that glitches; and Commission member Zauderer was rude with the other lay witness
• then, a suspended attorney testified, and
• at the very end, as a witness No 16, the Commission allowed to testify the witness, Elena Sassower, daughter of two whistleblower attorneys who both lost their licenses for their exposure of judicial misconduct, after distinguished careers.  Yet, Elena Sassower is the person who has actually made possible the public hearings in the first place, by actively urging the Commission to open up to the public what it is doing, creating and publishing some contact information, creating a website and holding the public hearings.  From the very beginning to the very end the head of the Commission's panel Cozier was rude to Elena Sassower, and that was,  possibly, because and in retaliation for Elena Sassower actions, because she made sure that the Commission was prevented from conducting its affairs in secret, at the beginning of her testimony, Cozier denied Elena Sassower the right to give written submissions to the Commission, which Cozier allowed to attorney witnesses.  At the end, Cozier was repeatedly trying to cut off Ms. Sassower from answering a question that another Commission member Zauderer, asked at the Albany hearing, even though Zauderer allowed Ms. Sassower to proceed with answering that question.  Cozier tried to interfere into Ms. Sassower's answering several times, then grudgingly "allowed" her to answer, but cut her off while she just started answering - not the way Cozier wanted to hear.  I guess, had Ms. Sassower engaged in the same kind of brown-nosing some attorney witnesses were doing before her, like praising the "distinguished panel", the "distinguished Commission" ,everybody distinguished, for their good efforts, public service, wonderful stewardship - Cozier would have cut Ms. Sassower off.

All-in-all, out of 16 witnesses testifying at the New York City not-so-public hearing, only ONE witness Professor Alves was not affiliated with the court system in any way.  She was:

• not a licensed attorney (witnesses No. 1 through 11);
• not a retired attorney and wife of an attorney (Ms. Lintz);
• not a suspended attorney (Mr. Maddox);
• not an ex-wife of an attorney (Ms. Oxman), and
• not a daughter of two attorneys (Ms. Sassower)

The Commission did not care, obviously, to invite LEGAL CONSUMERS and NON-ATTORNEY LEGAL CONSUMER ORGANIZATIONS, in equal numbers as attorneys, to testify.

The Commission did not alternate testimony of attorneys and lay consumers of legal services.

The Commission made very obvious:

• by the sequence and the number disparity between attorney and non-attorney witnesses, 
• by having NO lay members of the Commission - none- preside over a single public hearing out of three (Albany, Buffalo, NYC), and 
• by cutting off and discriminating against any witness who would point out that members of the Commission, the judiciary and attorney disciplinary committees and their actions are at the core of the problems, and the clean-up of the system should start from them

that the Commission members are not interested in changing the status quo - or to honor the declaration that attorney disciplinary proceedings and attorney regulation exist not to protect attorney from accountability, but to protect the public from bad attorneys.

All the Commission wanted to hear is how to protect attorneys from the public, predominantly through secrecy.

Even when suspended civil rights attorney Alton Maddox correctly stated that secrecy actually VIOLATES the 14th Amendment rights of the disciplined attorney - and I have evidence, in the form of criminal charges filed against m by the disciplinary committee of the 4th Department, for waiving my own privacy in attorney disciplinary proceedings and letting the public and the press know what is going on behind closed doors, that secrecy is being used by disciplinary prosecutors as a sword against the disciplined attorneys and not as a privacy shield for them, as the testimony went at the hearings.

Mr. Maddox also correctly - and courageously said, and deserves a lot of respect for what he said, that he, as an attorney, does not want the privilege of privacy and confidentiality that the public at large does not have, that he does not want, as an attorney, to be above the public.

Apparently, THAT is why he is suspended and why his suspension lasts for so many years.  Mr. Maddox is too much of an example of what an attorney is - while the majority of attorneys are not.

For a conclusion, let me say that this post is only an overview of the issues raised at the public hearing in NYC before the Statewide Commission for Attorney Discipline.

Issues raised there need to be digested and discussed issue-by-issue.

The transcript, after all, was 161 pages.  It requires substantial time, on top of my other obligations, to  dissect and analyze the issues, look up the background of witnesses, and present analysis of those issues in separate blog posts.

But I will strive to do that, I only need time.

Thank you for reading and stay tuned.