THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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.
Saturday, April 23, 2016
The Northern District of New York sets a new precedent chilling civil rights lawsuits against social services - bring such a case to trial, and your attorney will be suspended and screwed out of her fees, so nobody from now on will take such cases
Cody Fletcher Bess - of Oxford, New York.
They contacted me because I was the only civil rights attorney in the entire State of New York who they contacted (after contacting about 60 other attorneys) who was not afraid to sue Social Services.
They complained to me that Social Services of the Chenango County regularly ransacked their house, see the 2nd Amended complaint here.
I sued on their behalf in the U.S. District Court for the Northern District of New York in 2012. The agreement between us was that my award of attorney fees will come at the end of the action if we prevail (the likelihood of prevailing was strong, with a strong promise of punitive damages).
That was my first mistake. I couldn't predict in 2012 that disciplinary proceedings will be used against me in order to strip me of my ENTIRE fee in that case, of my 3.5 years of work.
The docket report of the case is included herein in its entirety, as of today.
The case survived (with my help) 3 motions to dismiss and 1 motion for a summary judgment and was scheduled for trial in the summer of 2015.
At that time it became known that one of the Defendants died, and her death was not disclosed to the Plaintiffs.
I requested an adjournment of the trial to get the Estate of the deceased Defendant done, so that my client would receive a better award at trial.
Apparently, feeling for your clients and trying to do what's best for them may be ruinous for a civil rights attorney.
It was for me in this case.
After I obtained an adjournment, on their authorization, my clients first claimed that they had other, more important things, than to pursue forming the Estate of the deceased individual.
Then, a new trial date was scheduled, on November 13, 2015, see the docket report, Docket entry No. 83.
On the same date, the State of New York suspended my law license.
Previously, the disciplinary prosecutor in the state case Mary Gasparini admitted under oath that she acted as a collecting agency for the initial complainant in the case, the Lawyers Fund for Client Protection (the charge brought in favor of the Lawyers Fund was dismissed by the disciplinary court, by the way, saying that it has nothing to do with attorney discipline).
So, if Mary Gasparini could act as a collecting agency for Lawyers Fund in a disciplinary proceeding, why wouldn't she act for Chenango County Department of Social Services (whose attorney is on the judge-picking committee in the 3rd Department, and thus part of the "brotherhood/sisterhood").
There were two major civil rights cases (Neroni v Zayas and Argro v Osborne) that the State of New York and the Chenango County Department of Social Services filibustered by my suspension.
Get your pick who asked to suspend me on that particular date.
On November 18, 2015 the Northern District of New York allegedly suspended my federal law license, too.
Why I say "allegedly"?
Because normally orders of suspension or disbarment are at least pretended to be a court orders, and court orders imposing public discipline must also be public.
You do not have a criminal conviction that is secret, right?
Same with orders of suspension.
Yet, in my case, you can see from the "attorney lookup" on the NDNY website that I am suspended, but you cannot see on Pacer.gov any indication of any records of any disciplinary proceedings or any order of suspension for my name.
So, I am "kind of" suspended - by a secret order of the court.
Which is, of course, illegal.
But - what happened next is even more so.
We had a written agreement with my clients.
After my alleged suspension (which was reported to me first in a letter of Judge Norman Mordue who obviously knew about a secret order that never appeared anywhere), my clients hired an attorney "on recommendation of the bar association".
That attorney had them sign a quick retainer agreement asking for $500/hr (!) - from indigent clients!
Of course that attorney, Woodruff Carroll, had to use my 3.5 years of work that brought a difficult and acrimonious case to trial, through, once again, 3 motions to dismiss, a motion for a summary judgment, discovery and a deposition.
I had to travel, I invested time and money, my clients could call me at any time of day or night, I sifted through myriad documents that they have been sending me, they told me I am their Godsend. Ok.
I described Mr. Carroll's "first efforts" on the case in this blog.
He later explained to the court that he took the case because he only saw a potential for a quick settlement.
He settled a multi-million dollar case for $30,000, pushing that my attorney fees should be either part of the settlement, or "not at all".
I refused to participate in Carroll's illegal "motion to fix" my fees.
First, such a motion should be made by me - and there was no fee dispute with my clients. They told me they will honor our written agreement with an hourly rate.
Second, there is no procedure to fix such fees in federal court, and state court rules and laws do not necessarily apply.
Third, I was trying to not have my indigent clients pay me ANYTHING, instead waiting until the resolution of the case to apply for fees under 42 U.S.C. 1988, as allowed in civil rights cases for prevailing plaintiffs.
Since my (now former) clients insisted they wanted an order of protection from social services as part of the agreement, that qualified as a material change for position, prevailing in the action, and I could apply for attorney fees under 42 U.S.C. 1988. All that I needed is time to wait and see how the case resolves.
Yet, that was not good enough for Woodruff Carroll, who, as I understand, had a behind-the-scenes agreement with the defendant, possibly for a kickback, to kill my attorney fees, even though his clients had a distinct interest to have my fees paid not by them, but by the defendants.
With the mind to kill my fees, Woodruff Carroll, according to Dara Argro, his own client, asked her for a written retainer agreement that we had between us.
She has sent to him THE ORIGINAL of the agreement (I have another).
Woodruff Carroll then turned around and claimed to the court, on the motion that the three plaintiffs did not initially authorize, that there was NO written agreement between us - while having the original of the written agreement sent to him by Dara Argro.
After I talked to my former three clients and ascertained that Woodruff Carroll coerced them to sign a retainer agreement with $500/hr hourly rate, but assured them that they would not have to pay, because he will be paid "by the state", Woodruff Carroll turned around and will be collecting from the settlement (or from the clients, of course).
After I indicated to the court, in a written JURISDICTIONAL objection sent by mail that:
1) Woodruff Carroll did not have authority to make the motion to "fix" my fees;
2) I have no dispute with the plaintiffs as to my fees, and do not want to make the motion to fix them at this time, and only I can make such a motion;
3) my fees have nothing to do with the settlement, we have a written retainer agreement, I provided services for 3.5 years of litigation when I was perfectly licensed, and my fee award does not depend on the amount of settlement my now former clients are negotiating;
4) 42 U.S.C. 1988 provides for award of attorney fees if the plaintiffs prevail - and there is no conclusion of the case yet, so it is premature to even talk about fees under 42 U.S.C. 1988 - and I will wait until the conclusion of the case to apply for fees directly from defendants, so that my indigent former clients would not have to pay a penny.
Fair to the plaintiffs?
I think it was.
Turned out to be not fair to me.
But, this particular court would know a jurisdictional objection when it is screaming in its face.
So, the court proceeded on the merits without deciding the issue of jurisdiction to review such a motion - not from me.
First, Judge David Peebles (who hates me with a passion for criticism in pleadings and on this blog, I pointed out his misconduct), hate and all, makes a recommendation to the judge to pay me $15,000, the decision can be found here.
In that award he reduces the amount that he could discern from the docket report of the case listing what I filed and what I did, because I was "admonished" - by him - for not appearing at a telephone conference because I was sick and on a 3-MONTH documented medical leave.
Of course, such admonishment for being sick was illegal under the Americans with Disabilities Act, but when did that stop judges from disciplining an attorney who criticizes them.
Then, Peebles talks a lot about my standing to apply under 42 U.S.C. 1988 which, in his view, is "unlikely" - even though the case was at this time not finally resolved and scheduled for trial.
Then, Peebles applies New York State law about charging liens, admitting that under the same New York State Law the standing to bring a motion to fix MY fees belong - who would guess? - to me only, and certainly not to my clients.
Once again - we have a retainer agreement.
I did work for 3.5 years of litigation.
I brought a difficult civil rights case to the point of trial.
My former clients told me that they were trying to replace Carroll, but couldn't because, even with the case scheduled for trial, attorneys in New York (they called around 50 firms this time) are deathly afraid to be even associated with suing social services.
So, they told me, Carroll is better than nothing, and they needed the money. I can't blame them - as to that point (they later signed an affidavit, while telling me they didn't, allowing Carroll to do whatever he wants with my fees, while continuing to tell me that they will be fair to me).
Carroll visited their house (to have them sign a $500/hr retainer agreement, to be paid "by the state"), and saw their financial situation.
Carroll, in his electronic submissions to the court that were not properly served to me and that I was able to recently read through downloading them, at my own expense, from Pacer.gov, tried to diminish what I did claiming that I did not do "much of discovery".
That is - while his ENTIRE fee was based on what I did, and he wouldn't have gotten a penny without me first bringing the case to the point of trial, threats from social services and all.
Now, here is the kicker.
Peebles still recommended the judge to "fix" my attorney fees - based on motion brought not by me that I objected to as made without standing - at $15,000.
Judge Norman Mordue rejected that recommendation and awarded me, for 3.5 years of litigation, exactly ZERO.
Because, in his view, on a motion that only I could bring and that I did not authorize Carroll to bring on my behalf, Carroll was still allowed to bring the motion - on whose behalf, I do not even know, because it was for Defendant's benefits and against me who wanted to be paid not by my clients but by Defendants, so Carroll was acting as an attorney for the Defendants and not for his clients, which the court, of course, swallowed - anything against Tatiana Neroni is good.
Judge Mordue claimed that, given all opportunity, I failed to answer the motion.
In the same breath as saying that I was supposed to make that motion, not oppose it - and I didn't yet.
And, did I mention that Woodruff Carroll, on behalf of plaintiffs, who told me that he told them that he will "let the judge decide", opposed ON BEHALF OF PLAINTIFFS my opportunity to collect legal fees FROM DEFENDANTS, so that his indigent clients would not have to pay me anything.
Think about the kickback he must have gotten for that one.
The court swallowed that, too.
So, as of now, a precedent has been created in the U.S. District Court for the Northern District of New York, that runs like this.
Civil rights attorneys, beware.
If you take a case of an indigent plaintiff to sue under 42 U.S.C. 1983, here is what may happen.
The case may either be dismissed, under the myriad court-created (illegal under Article III) abstentions, deferences, enhanced pleading standards, comities, and other "doctrines" - and then you will be sanctioned for bringing a frivolous civil rights lawsuit and made to pay multi-thousand dollar attorney fees. Happens all the time to civil rights attorneys, and at an increasing rate, so taking such a case is a considerable risk from the very beginning.
Yet, if you are successful in jumping through all hurdles - which means that the case is EXCESSIVELY BAD, as one attorney told me "it's a puke standard - the case will survive if it's so bad you want to puke by hearing it".
If you read the 2nd Amended Complaint, you will see that the puke standard was pre-eminently satisfied in the Argro case.
And it was not much reduced after the partial summary judgment either, see it here, a decision so bad that it apparently cost the initial defendants' attorney Maria Lisi-Murray her position Levine, Gouldin and Thompson.
She was immediately picked up though and now toils at the New York State Attorney General's office where, as I learnt over the years as a civil rights attorney, the hiring requirements are (1) complete lack of integrity; (2) incompetence, (3) ability to brown-nose the judge.
On the 3rd one Maria Lisi-Murray failed in Argro, but she immediately got assigned to another civil rights case of mine, where I am a party, and started to ask for sanctions against me from the time she was first assigned. I guess, being booted from a law partnership was hard to take. And because of some civil rights attorney, too.
Carroll pounded into his clients who are (1) unsophisticated in law and (2) had hopes for at least some monetary award (naturally) that the only thing they can get is what defendants' insurance would or would not pay.
Of course, when the case started, Dara Argro told me that they do not care about the money - they cared that they would bring about some change regarding social services.
Dara Argro told me also that Carroll never even touched upon the issue of punitive damages, available in such circumstances and requested in the action - that is why defendants were so frantic to settle in the first place, instead of going to trial, to prevent exposure of issues at trial.
Dara Argro also told me that Carroll adamantly refused to proceed to trial, even though the plaintiffs wanted it, thus coercing the settlement - that may be illegal because of that coercion.
It was insanity anyway and attorney malpractice (in my opinion) to settle a multi-million dollar case with a promise of punitive damages for $30K, that's why it was necessary to remove me first, so that my clients would be stranded and have to hire some clutz who would not want to try the case, would sell his clients out to the defendants and would quickly settle for a quick buck (for himself) and a pittance for them.
So, once again, the rule for the civil rights attorneys here is as follows:
If your case miraculously survived a motion to dismiss and a motion for a summary judgment and is scheduled for trial (and that happens only to a minuscule minority of civil rights cases nowadays) - if you are an attorney for the plaintiffs who secured that victory by endless work, be prepared to lose your license for a contrived reason
(the reason for my suspension is not clearly stated in my state order of suspension beyond the fact that I was sanctioned by a judge for frivolous conduct, which, in view of a recent declaration of unconstitutionality of a criminal statute with the same language as the rule of frivolous conduct, without more, does not constitute a basis for discipline at all).
Then, be prepared that the clutz who replaces you at the helm of the case, will cut you out of your entire fee, by fraud if necessary (Carroll stated to the court under oath that I do not have a written retainer agreement while having it in his hands).
OF COURSE I will make a motion to vacate this abomination.
But, of course, I realize that making a motion to a court whose attitude is that I have no rights no matter how you look at it, may be futile.
I wonder who, after the decision in the Argro case, would want to represent civil rights plaintiffs against social services at all.
And THAT is the main message meant by what was done to my legal fees.
Social Services are protected by the Northern District of New York, no matter what they do.
That court will bend over backwards, to the point of illegally suspending the plaintiffs' counsel in order to prevent the case from going to trial, with the concurrent exposure of issues involved, and to prevent the award of legal fees against the defendant.
Social Services can do anything to you.
And, with what happened to me as a civil rights attorney suing them, the message of the court is clear - DO NOT TOUCH. The social services, I mean, not constitutional rights of people violated by social services.
NDNY is the advocate of social services instead of an enforcer of federal laws, as it is sworn to do under Article III of the U.S. Constitution.
What else is new.
But - as to my suspension, I did not have my last laugh yet, and, if it is vacated, many things can happen...
At this time I simply warned Carroll that a case for fraud and fraud upon the court has accrued against him because of his sworn statement to the court that I did not have a retainer agreement while he had the original of that agreement in his hands, sent to him by Dara Argro.
And there is 6 years' statute of limitations to sue Carroll for that.
And there are actual and punitive damages for that.
And Carroll "accomplished" cutting me out of much more than $15,000 in legal fees as reasonable value of my services at the time they were provided.
So, since Carroll did not want me to be paid by defendants, I understand he will be happy to pay me himself, with punitive damages and treble damages allowed under Judiciary Law 487 (fraud upon the court).
And, attorneys and parties dealing with attorney Woodruff Carroll, know that he is dishonest - at least based on his tactic to first take from an uneducated client an original retainer agreement and then turn around and tell the court, under oath, that there is none.
If he can lie under oath about that (as he lied before that he was authorized to bring the motion to "fix" my fees), he can lie about anything else.