Two cases decided on the same day, November 13, 2015 that I would like to discuss here are:
- Matter of Tatiana Neroni (suspended for 2 years for truthful criticism of a judge in motions to recuse) and
- Matter of Barry Dolgoff (suspended for 1 year for grand theft of client funds from the trust account - $149,000 of client funds, to be exact).
Theft of more than $50,000 qualifies in New York as grand larceny in the 2nd degree, Penal Law 155.40(1) , a C felony, punishable by up to 15 years in state prison, by a fine of $5,000 or twice the amount stolen (whichever is greater) and by an automatic disbarment on conviction, Judiciary Law 90(4)(a):
"Any person being an attorney and counsellor-at-law who shall be
convicted of a felony as defined in paragraph e of this subdivision, shall upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such."
convicted of a felony as defined in paragraph e of this subdivision, shall upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such."
Return of some of the funds into the trust account does not negate commission of the crime.
Apparently, attorney Dolgoff was not criminally charged - even though he reportedly admitted to the theft in court.
Was attorney Dolgoff disbarred, even without conviction - because he admitted to what constituted grand theft of client funds?
No.
Was attorney Dolgoff denied a hearing (like I was) - because he had courts reportedly ruled about his theft of client funds before the disciplinary court did?
No.
Attorney Dolgoff was allowed to have a hearing, and to call witnesses who vouched that he is a good person (even though a thief).
Let's compare attorney Dolgoff's offense (a felony) with my "offense" (criticism of a judge in a motion to recuse).
While committing fraud and a crime is specifically mentioned as attorney misconduct in the Rules of Professional Conduct for Attorneys in New York, criticizing a judge is not included into the same Rules as attorney misconduct, and understandably so.
After all, litigants' right to impartial judicial review is a fundamental federal constitutional right, and attorneys are guarantors of securing that right for their clients.
Moreover, New York, unlike other states, allows its attorneys only ONE tool to secure that fundamental federal constitutional right for their clients - a confrontational motion to recuse, made in front of the challenged judge.
Additionally, New York courts deems it improper when attorneys do NOT make a motion to recuse, force attorneys to make such motions in front of the judge they are challenging with the motion to recuse, and teach the judge who sanctioned the attorney in retaliation incorrectly, how to do it correctly on remand - and then take attorney's law licenses, without a hearing, after such retaliatory sanctions are imposed.
When sanctioning attorneys for criticizing judges, New York courts do not care whether the criticism was truthful or not, or whether the judge did or did not engage in the "appearance of impropriety" (22 NYCRR 100.2) - the threshold allowing to make a motion to recuse in New York.
Raising "appearance" of impropriety does not require "conclusive proof", as the disciplinary court affirmed in my case, affirming in full (and without a hearing) the language of Charge III Specification 3 in the disciplinary petition filed against me:
Specification 3
Raising appearances of impropriety requires only to raise a reasonable inference of impropriety - an issue of fact subject to determination by a reasonable and impartial observer. Certainly not by the judge who is the target of the motion to recuse. Certainly, a judge who was caught with his hand in the cookie jar, will claim that circumstantial evidence of his misconduct (which is perfectly admissible in trials and has sent thousands of people in New York behind bars) is somehow inadmissible and constitutes "isolated" and "unrelated" events.
Of course, anything would be "isolated" and "unrelated" when a judge wants to absolve himself - but that is why many states do not allow the judge targeted with a motion to recuse to preside over such a motion, much less to impose sanctions for making such a motion.
Of course, anything would be "isolated" and "unrelated" when a judge wants to absolve himself - but that is why many states do not allow the judge targeted with a motion to recuse to preside over such a motion, much less to impose sanctions for making such a motion.
Now.
No court has so far explained to me what are the existing "principles" that Charge III Specification 3 is talking about - of how an attorney must make inferences from evidence of impropriety the attorney sees in the record and is otherwise aware of through the attorney's factual investigation into the judge's background, connections and conduct.
There are no guidelines for attorneys as to how to make inferences whether the record in front of them does or does not raise an inference that the judge was bribed or influenced, or committed misconduct. It is just common sense.
There are no guidelines for attorneys as to how to make inferences whether the record in front of them does or does not raise an inference that the judge was bribed or influenced, or committed misconduct. It is just common sense.
No court has ever explained to any attorney in New York or otherwise, which principles "serve as the basis of our judicial system" that I so grossly violated that I needed to be stripped of my license and livelihood for 2 years.
Moreover, Charge III Specification 3 does not mention whether my allegations of misconduct were or were not truthful - and, did not mention that sanctions were imposed upon me by the so-called "accuser-adjudicator", the judge to whom I pointed out that his conduct in the criminal case raise a reasonable inference that he acted under the influence of a powerful political figure.
So, in my case, the 4th Department expressed its clear policy that it considers criticism of a judge, by mere subject matter, especially the mentioning of a potential bribery of a judge, such a taboo that, whether it is truthful or not, it must be punished with suspension of a law license.
* * *
So, when an attorney is court with his pudgy paw in his clients' cookie jar, BIG TIME - that's not such a big problem for the disciplinary court.
Criticism of a judge is a MUCH bigger "attorney misconduct", in the opinion of the New York disciplinary courts - as the 4th Department demonstrated in my case and in attorney Dolgoff's case, where the two cases were decided by the same court on the same day.
Let's remember.
In New York, if your attorney steals $149,000 in your funds from the trust account, is caught, but then "expresses remorse" for commission of a crime - he will be suspended for just 1 year.
If your attorney makes for you a motion to recuse (without pay!) raising appearance of impropriety, bias and misconduct of a judge, based on documentary evidence - in order to secure your fundamental federal constitutional right to impartial judicial review, in the only way permitted by New York law, by a confrontational motion to recuse in front of the judge that is the subject of the motion - then, your attorney will be suspended for 2 years, and then made to retake the bar examination in order to be reinstated.
Guess, how many attorneys will now steal from you after Matter of Dolgoff (given that they will be forgiven if they "express remorse", and if their friends vouch for the thief's "honor"), and how many attorneys will make a motion to recuse on your behalf after Matter of Tatiana Neroni.
Amazing. Not one comment. It's as if it all falls on deaf ears. I will say this. As a client of Dolgoff, I am well aware of his ways. The man should be serving time not only for this crime but crimes that go unreported due in part to clients unawareness.
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