"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.

Wednesday, December 30, 2015

Lippman's clumsy attempts to address fundamental unconstitutionality of New York UPL statutes and attorney licensing in his "new" attorney disciplinary rules

As I stated in my previous blogs yesterday and today, New York State Chief Judge Jonathan Lippman, on the eve of his mandatory retirement that will happen tomorrow, continues to fight several civil rights lawsuits, one of them is an appeal and a motion to vacate in Neroni v Zayas, a civil rights lawsuit that I started on behalf of my husband and that is challenging several issues of constitutionality of attorney disciplinary system in New York.

As part of the lawsuit, Lippman fights, among other issues, these two:

1) an equal protection challenge requesting to declare that attorney disciplinary proceedings in New York are administrative and not judicial in nature and that New York violates attorneys' equal protection of laws by not providing to them ANY right of judicial review of those administrative proceedings, such as the State of New York provides to holders of other occupational licenses;

2) a challenge to New York criminal unauthorized practice of law (UPL) statutes and attorney regulation scheme as a whole on the basis of the state's failure to provide a clear definition as to what the practice of law is - essentially, the claim is that, if the State of New York does not know what the heck the practice of law is, it cannot regulate the practice of law or impose criminal liability for unauthorized practice of law.  

In fact, not only New York, but other states, too, struggle with definition of what the practice of law is, and decide what it is on an "ad hoc" (case-by-case) basis, with notice to criminal defendants provided backwards by the court instead of forwards by the legislature through a statute.  

It is obvious that such UPL statutes and attorney regulation of what is not defined are a violation of ex post facto laws prohibited by the U.S. Constitution that every judge and every lawyer is sworn to uphold.

You can read an interesting piece on the manipulation of UPL laws in different states here.

Lippman reflected his strife in Neroni v Zayas in his new attorney disciplinary rules as to these two issues in the following way:

1) he claimed (without authority, since such authority belongs to the Legislature and not to the Chief Judge) that attorney disciplinary proceedings are "special proceedings" (meaning special COURT proceedings) within the meaning of Article 4 of the CPLR - but then did not allow CPLR to apply to disclosure in such proceedings, as it applies to all other "special court proceedings", and introduced a new pleading for the goverment, a "reply";

Note Lippman's creativity in inventing a "reply".

For example, a Family Court case is a "special proceeding" within the meaning of CPLR Article 4.  

No "replies" are allowed in such proceedings to be filed by the government, nor in any other "special court proceedings" filed against the government.

A "reply" is allowed under the CPLR in MOTION practice, not in initiating pleadings for a case.

Lippman should not have paraded his incompetence as part of new attorney disciplinary rules, although he, of course, can claim incompetence as of his legacy, that would be true.

The usual three sets of initiating pleadings in court proceedings in New York (and not in special proceedings!) are:

  1.  Plaintiff's complaint;
  2. Defendant's answer AND COUNTERCLAIM if the Defendant so desires;
  3. the Plaintiff's reply to Defendant's counterclaim
In attorney disciplinary proceedings that are commenced by the arm of a licensing agency (even if the licensing agency is a court, it still discharges executive functions of a licensing agency, and therefore, attorney disciplinary proceedings are administrative and not judicial in nature) against an attorney, there is no right of a counterclaim, and thus, there should be no right for a reply.

Yet, Lippman invented such a right for disciplinary prosecutors, while all the way claiming that such proceedings are somehow under Article 4 of the CPLR.  You cannot find anything like that in Article 4 of the CPLR.

2)  As to UPL prohibitions, Lippman included into the new rules this fantastic text:

Yes, the practice of law is regulated in New York not by one statute, but by four criminal statutes, none of which provides a definition of what the practice of law, legal services or business of a lawyer is.

Here they are:

Judiciary Law 478 - prohibition of the practice of law without registraton and licensing; registration and licensing procedure are defined in the statute, practice of law or what constitutes "legal services" are not defined;

So, the new rules prohibit to disbarred and suspended attorneys this quadruple legislative blunder giving people absolutely no notice of prohibited conduct.

The practice of law in New York, as well as unauthorized practice of law is like obscenity - "you know it when you see it".

That is not how criminal statutes, and regulatory scheme based on such statutes, are supposed to operate, that much must be known even to 1st year law students.

So, Lippman leaves a lasting evidence of incompetence, self-service and corruption.   People of the State of New York could expect nothing else from Lippman. 

Yet, the two elephants in the room, issues of fundamental unconstitutionality of New York UPL statutes and attorney licensing system, that Lippman tried to so clumsily address in the "new" attorney disciplinary rules, remain open.

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