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";
- Plaintiff's complaint;
- Defendant's answer AND COUNTERCLAIM if the Defendant so desires;
- the Plaintiff's reply to Defendant's counterclaim
2) As to UPL prohibitions, Lippman included into the new rules this fantastic text:
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.
Post a Comment