"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, October 19, 2015

The Mokay saga continues as a black comedy - after 8 years of litigation, Plaintiffs got a $156,290 judgment against themselves

I've been writing about the Mokay saga extensively here, you can run the work "Mokay" in the keyword search window on the right in this blog to see all the blog posts about it.

The latest interesting news are that - after 8 years of litigation of a completely meritless case, the six plaintiffs got a $156,290 judgment against themselves.

The case started in Delaware County Supreme Court in June of 2007.

A partial summary judgment on liability was made in 2008.

In 2009, the New York State Court of Appeals allowed to charge attorney fees as damages in litigation.

In the Mokay case, the ONLY items charged as damages at the ex parte trial in April of 2015 were attorney fees of two  law firms:  Harlem & Harlem and Harlem & Jervis.

There was no retainer agreement in the record for Harlem & Jervis.

There was no consent to change counsel in the record for the change of counsel from Harlem & Harlem to Harlem & Jervis, notarized by each one of the six plaintiffs in the action.

Judge Kevin Dowd did not care about such pesky issues as retainer agreements and consent to change counsel.

He was irate because of the length of litigation - against Mr. Neroni, of course, not against Harlem & Jervis.

And, in order to "make Plaintiffs whole", Judge Kevin Dowd has awarded $156,290 in actual damages based on attorney fees of these two law firms chargeable by Harlem & Jervis and Harlem & Harlem against their clients. 

Yes, of course, Judge Dowd made the judgment against defendant Frederick Neroni.  Yet, by saying that Plaintiffs claimed that those attorney fees are their damages against Mr. Neroni, Judge Dowd also acknowledged that Plaintiffs agreed to those attorney fees by Harlem & Harlem and Harlem & Jervis.

Which made Plaintiffs liable to Harlem & Harlem and Harlem & Jervis for those legal fees, jointly and severally.  In other words, the money judgement acknowledging attorney fees of $156,290 as "actual damages" of the Plaintiffs, is a money judgment by Plaintiffs' alleged attorneys against the Plaintiffs.  Against each and every one of them.

So, as of June 12, 2015, the date of the decision of Judge Kevin Dowd, 

1) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Daniel Mokay individually, and against his property;

2) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Andrew Mokay individually, and against his property;

3) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff David Mokay individually, and against his property;

4) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Patricia Knapp individually, and against her property;

5) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Christine Reed individually, and against her property;

6) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Estate of Andrew Mokay Sr, and against its property (and the property of all of its beneficiaries) - and that is in addition to attorney and Executor fees of Harlem & Jervis and the Executor Daniel Mokay charged against the Estate in the probate proceedings.

But the beauty of it all is that Judge Dowd created this money judgment of $156,290 against the Plaintiffs without any testimony from the Plaintiffs!

That's right, none of the Plaintiffs testified in the ex parte Mokay trial (where the public was also not allowed, I have an affidavit from a witness who was duped by the court personnel into believing that the trial was adjourned and not happening, when it was happening at the very same time as the witness asked to go observe it).

None of the Plaintiffs came forward at the trial to say:

1) yes, I hired Harlem & Harlem to represent me in this litigation;
2) yes, I hired Harlem & Jervis to represent me in this litigation;
3) yes, I am aware of every billing item that Harlem & Harlem and Harlem & Jervis presented to this court today;
4) yes, I approved of these billing items as MY legitimate costs of litigation;
5) yes, I am aware that the money judgment that I am seeking against Defendant Mr. Neroni is also collectable by Harlem & Harlem and Harlem & Jervis against me, as attorney fees against a client;
6) yes, Harlem & Harlem and Harlem & Jervis advised me of the potential conflict of interest in obtaining such a money judgment in this trial against Mr. Neroni, which will also be enforceable against each one of the plaintiffs;
7) yes, I agreed in writing for Harlem & Harlem and Harlem & Jervis to proceed to trial and obtain a money judgment against Mr. Neroni that will also be collectable against me by Harlem & Harlem and Harlem & Jervis.

None of the Plaintiffs testified.

And Judge Dowd rubber-stamped boxes of evidence supplied to him during and after (!) trial by Harlem & Jervis, simply because they were submitted against the much hated Mr. Neroni who sued Judge Dowd and whose wife sued Judge Dowd on behalf of client (not Mr. Neroni) - without any verification of the above issues by any of the Plaintiffs through testimony.

The only testimony upon which this money judgment was entered against Mr. Neroni and against the Plaintiffs was testimony of a non-party with interest in the money judgment, attorney Richard Harlem, son of a judge.

Of course, Judge Dowd's "brain", his law clerk Claudette Newman (who is also a local town justice, a judge in her own right), could not sit with him on that bench and could not advise him how to rule while he was dreaming of urinals built by law schools in his honor -  that's what he has put on record in a custody proceedings several years ago, and I do not think his mental capacity has improved since then.

Yet, the decision of June 12, 2015 was made two months after the trial ended.  Judge Dowd's "brain" had enough time to function and not to make a money judgment enforceable against the Plaintiffs where Plaintiffs did not testify, and THE ONLY witness who did testify was a non-party with interest in the money judgment, whether against Mr. Neroni or against the Plaintiffs - attorney Richard Harlem.

Good job, Judge Dowd.

Good job, Claudette Newman.

Good job, Richard Harlem.

Good job, James Harmann, the "trial counsel" for the Plaintiffs.

Good job, Michael Getman, another son of a judge, who stated before the trial began that his client Connie Mokay's interests 

         (Connie Mokay was a co-defendant in the action 
         and a beneficiary of the Plaintiff Estate of Andrew Mokay 
         as a widow with a right to an elective share of 1/3 of 
         the Estate, reduced in half by agreement with 
         Mr. Getman without any consideration) 

are "aligned with the Plaintiffs" and then left the trial - thus allowing Judge Dowd to create, without any objections, to enter a money judgment of $156,290 enforceable by Harlem & Jervis against the Estate in which Michael Getman's client Connie Mokay has interest as a widow with an elective share.

As I said above, the Mokay saga is quickly becoming a black comedy - or a vaudeville. 

Yet, serious researchers of Judiciary Law 487 and Amalfitano v Rosenberg, the New York State Court of Appeals case that allowed attorney fees as damages in Judiciary Law 487 claims, need to at least take note that, if attorney fees incurred by plaintiffs and chargeable against plaintiffs by their attorneys are advanced as damages at trial on behalf of plaintiffs, 

  • a conflict of interest is present where attorneys have interest in obtaining a money judgment not only against the defendant in the action, but against their own clients;
  • such a conflict of interest must be discussed with the client;
  • a written consent for the attorneys to proceed must be signed by each plaintiff;
  • plaintiffs - at the very minimum - must testify at trial to confirm that they DID hire these attorneys who have an interest in a money judgment against their own clients, and that they DID approve legal fees of these attorneys claimed as damages.

Because - otherwise we get what we got in the Mokay saga.

A $156,290 money judgment against each and every one of the Plaintiffs, enforceable against them by allegedly their attorneys Harlem & Jervis and obtained against them while their presence is not mentioned in the trial transcript (in their absence) and without their testimony.

Just think about the potential of abuse - an attorney walks into the courtroom, gets on the witness stand and testifies that A, B, C, D, E and F owes him hundreds of thousands of dollars, and the court approves a money judgment that goes both against the A, B, C, D, E and F's alleged opponent and against them, too.

And, the court, without hearing out the testimony of A, B, C, D, E and F, grants the hundreds of thousands of dollars against the defendant, but also by the attorney against A, B, C, D, E and F - without their testimony or even presence.

Here, "to make Plaintiffs whole" (or rather, to make a hole in Plaintiffs' pocketbooks), Judge Dowd created a money judgment of $156,290 against each one of them, enforceable against them by son-of-a-judge Richard Harlem, in their absence and without their testimony.

That decision, by far, beats the decision about the urinals built by law schools in Dowd's honor - as part of a custody proceeding.

All in all, it was really well worth the 8 years of litigation in Mokay v Mokay - for Richard Harlem, not for the Plaintiffs.

I wonder when Richard Harlem will start collecting his hard-earned judgment of $156,290 against Daniel Mokay, David Mokay, Andrew Mokay, Christine Reed and Patricia Knapp.

But, that will be part of the black comedy genre.

I will report further on this case as information becomes available.

Stay tuned.

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