"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.

Tuesday, January 3, 2017

Appellate Division 3rd Department Attorney Grievance Committee claims that fraud upon the court is not attorney misconduct - for those attorneys who work for the government

In 2011, Appellate Division, 3rd Judicial Department, on application of its Attorney Grievance Committee, disbarred an attorney.

The disbarment was based upon the Petition that stated as its basis to request disbarment, among other things, the contents of the attorney's disciplinary file, which the Attorney Grievance Committee did not make part of the record.

The attorney made several applications for access to contents of the record based on which he was disbarred.

The Attorney Grievance Committee refused to provide such records.

So, the attorney sued.

During litigation, the Attorney Grievance Committee's (AGC's) counsel, Assistant New York State Attorney General Bruce Boivin, told me (I represented the Plaintiff) that the ACG does not have the file I am trying to get.

Well, if they do not have the file, the order of disbarment must be voided, since it was based on claims under oath, of the Committee, made upon existence of the file.

Federal U.S. District Judge (Senior Status) Lawrence E. Kahn whose own law license and livelihood is in the hands of defendant ACG who appeared in front of him (because without that license he cannot be a judge)

dismissed the case stating that:

  • an attorney does not have a constitutional right of access to his own disciplinary file upon which he was denied his law license and livelihood, that
  • the order of disbarment is final (even if fraudulent - which he did not mention) and, thus, the U.S. District Court lacks jurisdiction, under the judicially created Rooker-Feldman doctrine, to review the case, and
  • ACG, and its now former attorney Steven Zayas, is absolutely immune from lawsuit for denying access to the file.
Right after the dismissal, while the appeal was pending, Monica Duffy was made by the then-Chief Judge of New York Court System Jonathan Lippman a member of the State Commission for Attorney Discipline.

As a member of the Commission, Monica Duffy authorized three public hearings to be held by the Commission, and made impassioned personal statements in one of the hearings that there is NO selective non-prosecution of prosecutors and that all attorneys, notwithstanding their "area of practice" are equally prosecuted by the ACG:

 Of course, when making those impassioned statements, Duffy knew she was lying, and did it with audacity, in full knowledge that, in the absence of mechanisms in the ACG to investigate and prosecute their own attorneys for misconduct, nobody will ever discipline her for that lie.

After all, she engaged in professional misconduct in several disciplinary cases I know of, to the point of fraud upon the court, and stalled complaints against herself.  Moreover, when given a chance as a member of the Commission on attorney discipline to put in a mechanism of disqualification of ACG members and attorneys for conflict of interest, she did not do that - protecting herself from discipline.

Duffy's Commission also issued a report recommending to allow appeals of dismissals by ACG, and, based on the report, new rules of attorney discipline were issued by the New York State 4 Appellate Departments, now "allowing" a very limited appeal of dismissals of complaints against attorneys.

At that point, I criticized the measure as not a measure at all, because of the absolute discretion not to investigate, which will be used by ACG to continue to do what it is doing - whitewashing government-employed attorneys and attorneys with connections to the rich and powerful, and using attorney discipline as a tool to target and strip of ability to earn a living critics of the government, especially civil rights attorneys and critics of the judiciary.

And, back in Neroni v Zayas, since 2013, I was arguing that the lack of indication on ACG's "form letters" refusing to investigate or prosecute an attorney of any archive numbers or any identification numbers indicates that ACG, coupled with ACG refusal to give access to their archives after claiming to the court, and obtaining orders of discipline based on their "records" - which obviously do not exist - indicates that ACG shreds all complaints against attorneys ACG is supposed to protect and pursues claims only against attorneys ACG is supposed to target.

When complaints against "protected" attorneys are shredded, ACG thus destroys, for the future, the opportunity to do what it does to "unprotected" attorneys - claiming that it had complaints against such attorneys in the past.

As a comparison, New York State Commission for Judicial Conduct, which also operates as a shredder of complaints against judges, at least assigns numbers to its form letters refusing to investigate a complaint, thus allowing to, at least for Commission's own purposes, track how many complaints were lodged against a particular judge.

Here is proof that Monica Duffy, when preparing the "report" for "new fair and effective rules" of attorney discipline, was mocking the public and wasting taxpayer money while never intending to change her corrupt ways.

I also filed a complaint against Follender with the New York Judicial Conduct Commission (because Follender is also a part-time town justice) and with criminal authorities, asking to prosecute him for several crimes, including felonies.

The felony investigation still proceeds.

The proof that I provided to ACG is documentary and IRREFUTABLE.

It is IRREFUTABLE that Follender committed a crime of fraud upon the court.

The ACG does not have to wait until the criminal investigation is complete and until the criminal court pronounces its decision - violation of rules of professional conduct is complete on the face of the record.

So, what did ACG do?

Did it start a sua sponte disciplinary proceedings against Jonathan Follender?

Oh, no.

It did exactly what the public criticized it for in public hearings in 2015 - selective non-prosecution of Jonathan Follender  as a private attorney because he is also a judge.

Monica Duffy sent me a form letter claiming that, as a matter of discretion (her own choice) she refuses to even INVESTIGATE my complaint.

She also used very interesting - and diametrically opposite - statements:

  1. Duffy relied on the new rules that Duffy helped create, 22 NYCRR 1240, specifically on 22 NYCRR 1240.7(d)(1)(I), which allows, according to Duffy, to "decline to investigate".  Declining to investigate is declining to review or analyze.
Yet, in the next phrase, Duffy states that there was a review on the merits:

2. "After a careful review, it was determined that your complaint does not involve behavior constituting professional misconduct".

So, according to Duffy, when an attorney, for purposes of personal financial benefit, files with the court a fraudulent judgement for over $10,000 not authorized by court, that behavior does not constitute professional misconduct.

In other words, fraud upon the court does not constitute, to Duffy and ACG, professional misconduct. 

Which is diametrically opposite to what Duffy's Committee stated to the court in pursuing sua sponte proceedings against my husband, for actions that did not constitute fraud upon the court, because the agreement in the judgment of divorce that he supposedly violated was not in writing, as was required by the Statute of Frauds, and was unenforceable, and because there is no cause of action in New York for interfering with prospective rights of inheritance of third parties - not that the law mattered in any way for the committee that had an order to take my husband's license no matter what the law said.

Here is some more evidence of the conceptual mess that reigns in Duffy's head:

1) fraud upon the court IS attorney misconduct - for purposes of bringing a sua sponte disciplinary proceedings against my husband, who filed a complaint against Robert Harlem (a retired judge) and Richard Harlem to the same ACG, and ACG's member John Casey made a choice - to accept subjects of Robert Harlem and Richard Harlem as his law firms' paying clients in litigation against my husband, and to prosecute and take the license of my husband, a complainant against Case's clients and an opponent suing them - for fraud upon the court;  John Casey's law firms (two, in succession) have been the Harlems' private attorneys for 6 years so far;

2) to claim that an attorney is liable for fraud upon the court for making fraudulent claims in litigation is punishable by frivolous conduct sanctions and loss of a law license - that is what Duffy claimed in a motion for a summary judgment in my disciplinary proceedings, including an order of sanctions imposed upon me by corrupt Judge Tormey whom Follender requested to sanction me for suing Follender because I sued Tormey in federal court (a lot of logic involved) - and Tormey obliged.

Tormey also ruled that Follender, a private attorney in the action, has ABSOLUTE JUDICIAL IMMUNITY for any untrue statements he made to the court - thus voiding Judiciary Law 487 by creating a jurisdictional bar for civil actions to prosecute private attorneys for fraud upon the court.

3) When I immediately moved in my husband's proceedings to dismiss for lack of jurisdiction because now the same court (a different judge) claimed that fraud upon the court is non-prosecutable, barred by absolute JUDICIAL immunity - I was laughed at by Judge Dowd, who claimed I should have realized that what Judge Tormey said by granting Follender absolute judicial immunity against Judiciary Law 487 was "mere dicta".

4) When I sued ACG's attorney Steven Zayas for fraud upon the court - claiming that I neglected two clients in 2008 when I was not an attorney and could not have any clients as an attorney - the case was dismissed based on "absolute quasi-judicial immunity", claiming that Judiciary Law 487 is inapplicable to government attorneys.

5) When I sued on behalf of my husband in federal court challenging constitutionality of Judiciary Law 487 that absolves from accountability under that law a large group of attorneys working for the government, the same Duffy asked to dismiss the action, and it was dismissed, "for failure to state a claim" - by the same Judge Kahn, whose own law license and livelihood was in the hands of 3rd Department's ACG.

6) Now, Duffy claims that she does not see fraud upon the court in anything that Follender did, even though what Follender did is a fraud upon the court - irrefutably so, based on the documents I provided: a court order saying that a money judgment must be entered for $1,756, and Follender making it a judgment of over $10,000 with 9% interest - as she did not see any fraud in her own fraud upon the court in my disciplinary case where she refusd to investigate and prosecute HERSELF.

It is interesting to mention that, while declining to investigate Follender, Duffy misrepresents the very same rules that she helped create.

First of all, Duffy has no "discretion" to decline to investigate despite 22 NYCRR 1240(d)(1)(I) she relied upon - because she herself is disqualified from review of my complaints.

Duffy, who engaged in fraud upon the court in my husband's disciplinary case and in my case, who claimed to the court that she is relying on contents of her "file" but is refusing to reveal the contents of her "file", while her attorney Bruce Boivin claims that there is no "file", and who is, at this time, the subject of an unresolved complaint by me against herself - cannot, as a matter of due process of law, review and deny investigation to me, she must seek assignment of a special prosecutor for both my complaint against her, and my complaint against Follender.

Duffy disqualified herself from review of all complaints made by me and my husband in June of 2014 as being unable to be unbiased towards us, as subject of disciplinary proceedings, or as complainants, and the only reason why I filed my complaint against Follender with ACG3 was because it was the right venue - ACG4 previously refused to review a complaint against an attorney from my husband claimed it first needed to be filed with ACG3.

Of course, she will now be claiming, if I raise this issue, that I do not have a right to appellate review of dismissals of my complaint against an attorney, based on the decision of another judge of the U.S. District Court for the Northern District of New York, Judge Mae D'Agostino, who made a decision in favor of New York judiciary while failing to disclose that at the time of presiding over the case she was member of and Chairperson of, a secret-membership organization where state judges, defendants in the action, were members of a group that she was Chairperson of, and were making decisions about cases with D'Agostino ex parte, behind closed doors.

The federal court system now fights my FOIA request for lists of members of D'Agostino's secret organization, by the way.

So, D'Agostino relied on the 2nd Circuit (while both courts are part of the case-fixing ring of state and federal judges, and are currently fighting to block my FOIA request to reveal lists of members of that criminal ring, called the New York State-Federal Judicial Council) in claiming that a victim of judicial misconduct, a public citizen, a member of a popular sovereign (We the People) lacks "a judicially cognizable interest in the prosecution or nonprosecution of another".

That was from the ruling made in 2013.

But, didn't it all change in 2015 when Duffy's Commission introduced a new rule - that a victim of attorney misconduct CAN now appeal the dismissal, and thus now DOES have "a judicially cognizable interest in the prosecution or nonprosecution of another"?

That was the illusion that the "new rules" of attorney discipline were supposed to create.

The rules provide for a right to appeal dismissal or non-investigation of complaints against attorneys - in response to a public outcry in public hearings in 2015 that attorney disciplinary committees are whitewashing and refusing to investigate and prosecute misconduct of government-employed attorneys.

The subsection (3) above is the one that Duffy relied upon at the end of her write-off letter:

In her write-off letter, Duffy claimed that my written request for review (appeal) "must be based on information and/or argument not previously presented to the Committee".

22 NYCRR 1240.7(e)(3) does not have such a restricting requirement - Duffy invented it after the fact, legislating post-factum while at the same time acting as an investigator, prosecutor and adjudicator in the matter - a conflation of all possible roles in violation of the separation of powers principle.

And, the "review" (appeal) ends within the Committee - the investigator, prosecutor, legislator and adjudicator - the Committee that is immune for anything wrong it may be doing.

No further appeal is allowed - and, if you sue, you will bump back into what D'Agostino and the 2nd Circuit (after discussions through New York State-Federal Judicial Council, in cahoots with state judges and their secret "advisors" that they refuse to disclose) said: you have no "judicially cognizable" right to appeal the dismissal or declining to investigate.

What conclusion can we all, as citizens, draw from all of this mess?

1) There should not be situations where the authority to:

  • legislate;
  • investigate;
  • prosecute and/or
  • adjudicate - in all and any combinations of those 4 functions - be vested into the same governmental body, and especially into the body where members of the Committee are "unpaid volunteers", whose own business and livelihood depends on approval or disapproval by the judiciary
In other words - members of the Committee have a conflict of interest in whether to investigate or prosecute a private attorney (Follender) who is also a judge.  A panel of people who have nothing to do with the legal profession or the judiciary should, separately, investigate or make the decision whether to prosecute or not prosecute.

2) The so-called "prosecutorial discretion" as to whether to bring or not to bring charges where the complaint is clearly meritorious, should be eliminated - if somebody violated the law, no matter what kind of law, that person MUST be prosecuted.

Because prosecutorial discretion has long become the equivalent of prosecutorial corruption.

Had my husband, or I, been a part-time justice, Duffy would never have prosecuted us.

Yet, since we were not, and, instead, we complained about judges, our law licenses were taken, and all public officials involved play run-around as to applicability of fraud upon the court, Judiciary Law 487, to us, mere mortals, and to the sky-dwellers, attorneys connected with the government.

So that attorneys who commit fraud upon the court invariably come out without any accountability, and even win against whistleblowers, in our case - even having their cronies take the whistleblowers' law licenses in exchange (as it happened with Harlems) for bribery of the prosecutor, John Casey, by hiring him and paying his law firms tens of thousands of dollars in legal fees at the time he was supposed to prosecute the Harlems.

I did not exhaust all the arsenal of legal remedies against Follender though, and the case of his disciplinary proceedings is not yet closed.

I still have a 6-year statute of limitations to sue him for fraud upon the court, and to turn him back in after a jury verdict of fraud upon him - which I am confident I can obtain from a civil jury.

And, the criminal state case against Follender is still out.

But, that's my personal case.

Hundreds of people file criminal and disciplinary complaints in New York and around the country against well-connected attorneys, judges and other public officials.

Most of the complaints are routinely nixed as a matter of "prosecutorial discretion", and the public is denied an elementary right to appeal that conduct.

My suggestion to the public is to:

  1. demand from their legal representatives in the legislatures passing of a legislature that 
    1. would abolish the so-called "prosecutorial discretion",
    2. would put the matter of decisions whether to bring or not to bring charges outside of the "self-regulating" legal profession and judiciary, into the hands of lay and neutral public panels, with members of the panels having no connection to the legal profession or judges; and
    3. would vest the complainants with a state right to appeal dismissals.
Actually, New Yorkers can demand putting these issues, as well as the repeal of prosecutorial and judicial immunity and governmental immunities of any kind, up for vote in the 2017 constitutional referendum, to amend the New York State Constitutional.

This is NOT about me only - this is about the public who tried, without any positive result, back in 2015, to assert in public hearings that there is no proper right to appeal improper dismissals of meritorious complaints against the government.

For us, "mere mortals", the "protections" created by "disciplinary" or "ethics" commissions by the government are just pulling wool over our eyes - an illusion.

It shouldn't be an illusion.

We the People can expect true accountability for misconduct - of government attorneys, prosecutors and judges.

Government officials must be held accountable for any wrongdoing in office, and whether to prosecute or not prosecute them should not be within the hands of individuals who have financial interests in the way they use their "discretion".

Whether to be or not to be ethical, should not be a matter of Duffy's, or anybody else's, corrupt discretion.

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