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;

Judiciary Law 479 - criminal prohibition on solicitation of business for a lawyer; what constitutes that business and what constitutes legal services or the practice of law, is not defined

Judiciary Law 484 - prohibition for natural persons to practice law other than on their own behalf;  practice of law or legal services are not defined either;

Judiciary Law 486 - prohibition of "acts forbidden by this article" without defining what the practice of law, legal services, or doing business as a lawyer is

 

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.