While writing that blog, I wondered, what exactly was omitted in this aggressive persecution of a criminal defense attorney, what exactly did he do to the powers that be so that they were so viciously after him, and specifically were seeking to ban him from earning money and being employed by clients, even though he was never disciplined.
The powers that be immediately remedied that situation by suspending Gaspar Castillo - not once, not twice, but three times within the period from June 9, 2016 to December 1, 2016.
According to the final order of suspension of attorney Gaspar Castillo, the suspension happened after the Attorney Grievance Committee first called attorney Castillo to testify in the investigation against himself (while attorney Castillo was not given by the new disciplinary rules 22 NYCRR 1240 a matching procedural permission to call the Grievance Committee to testify in that same "civil" proceeding, and then used the contents of his testimony against him.
All orders of suspension are available here:
1) the interim order of suspension of June 9, 2016;
2) the interim order of suspension of August 18, 2016, on allegations of misconduct (neglect of two appeals) allegedly admitted by attorney Castillo;
3) the final order of suspension, of December 1, 2016.
Since I know, from personal involvement in several cases where I represented the attorney sought to be disciplined (including myself) that this particular grievance committee is prone to lie in pleadings and hide records that would show their misconduct and fraud, to the point of either blocking access to them, even from party opponents in litigation - I will not believe anything in the order of the 3rd Department regarding anything bad that attorney Castillo allegedly did wrong, until I see evidence submitted to that effect in his disciplinary proceedings, and I will seek access to those records and will report whether such access will be given to me.
Under Judiciary Law 90(10), all pleadings in the disciplinary case that led to suspension or disbarment, are open public records.
But, the most interesting part came after attorney Castillo's suspension.
After he received his suspension, he made an interesting motion - which was even more interesting that attorney Castillo is a criminal defense attorney and should have known better than to make such motions.
Attorney Castillo asked the Appellate Division 3rd Department for an advance notice whether certain conduct, like working as a paralegal (unregulated occupation that does not require a law license) and another 25 occupations that do not constitute practice of law in New York, would constitute unauthorized practice of law for him, attorney Castillo, in violation of his order of suspension.
Why that was not reasonable?
Here is why (and that is, of course, my personal opinion).
Unauthorized practice of law (and criminal contempt of court, too) are criminal statutes.
In order to be convicted under those statutes, a member of the public must have clear notice through the text of those statutes, that certain conduct constitutes UPL or criminal contempt of court.
The court order of suspension prohibited attorney Castillo to "practice law".
What constitutes "practice of law" in New York is not defined by statute, thus giving attorney Castillo no notice as to what conduct was prohibited.
Thus, the order of suspension, for purposes of criminal contempt of court, was not legal and enforceable through a criminal contempt of court conviction, or through a UPL conviction.
If there is no notice of prohibited conduct in a statute, a person does not go to the government to ask the government to GIVE him that notice, so that the government then have a better chance of convicting him, claiming that the notice of what the government decides - for this person only - as criminal conduct (while the same government does not consider that same conduct as "practice of law" for thousands upon thousands of unlicensed individuals in New York working as paralegals).
But - attorney Castillo did ask.
Of course, criminal proceedings against Castillo for UPL or criminal contempt of court were not brought yet.
And, if they would be brought, the correct court to bring them in would not be the Appellate Division 3rd Department, but the lower criminal trial court.
And, a court to decide a separate action for a declaratory judgment as to the meaning and scope of a statute, CPLR 3001, would be the lower trial court of general jurisdiction - the Supreme Court of New York State (not the Appellate Division 3rd Department).
And, NO COURT would be able to decide whether a certain conduct is or is not unauthorized practice of law, because - the "practice of law" in New York is not defined by statute, and without such definition, not conviction for UPL or for related crimes, for "practicing law", is possible on due process grounds.
Remember the recent Judge Aaron Persky's case?
Despite all petitions to take him off the bench and/of to discipline him, he was not disciplined - because, at the time he gave a rapist a slap on the wrist for having sex with an unconscious woman out in the street, the blessed State of California did not have on the books a criminal statute that would call such conduct "rape" and that would presume lack of consent from the victim's being unconscious during such sex.
The same principle - based on the ancient Roman principle "nulla poena sine lege" (no crime without the law), which was embedded, as a "notice" due process requirement, into our constitutional jurisprudence, would bar criminal prosecutions for "unauthorized" practice of law where:
1) what is "authorized" or not "authorized" is decided on a case-by-case basis by courts and constitute unconstitutional ex post facto laws and bills of attainder, and
2) when what constitutes "practice of law" is not defined by statute.
In view of all of the above jurisdictional problems, what the Appellate Division 3rd Department answered to attorney Gaspar Castillo, in its decision on motion, is especially interesting.
Here is that interesting decision.
In it, the 3rd Department:
1) first, acknowledged that it has no jurisdiction to hear the issues raised in the motion on the merits - because it was (a) premature, and (b) would constitute an improper "advisory opinion";since the court acknowledged that it had no jurisdiction to consider the issues, it should have stopped right then and there.
Not a chance.
2) second, the 3rd Department, still decided the case on the merits - even after its acknowledgement that it has no authority to do so.
Here is what the court said:
The 3rd Department specifically characterizes the work as a paralegal (and in 25 other jobs - without providing a list of those positions, which is totally in the tradition of the 3rd Department).
The only 3 positions that the 3rd Department branded as "practice of law" for attorney Castillo that the 3rd Department condescended upon the public to list are:
- a paralegal;
- a legal assistant; and
- a law clerk.
Courts require a law license for positions of a law clerk - which is what attorney Castillo challenges as improper - because doing legal research for a judge is a paralegal job and is not "the practice of law". Judges in New York of the level employing law clerks (County court and higher) are prohibited, by the New York State Constitution, to practice law. Their research assistants, law lerks, full-time court employee, are not permitted to practice law either.
Judges McCarthy, Garry, Rose, Clark and Mulvey now are saying that law clerks ARE practicing law? Who are their clients? Judges? But, judges are represented, by statute, Public Officers Law 17, by the New York State Attorney General and not by law clerks. Judge Mulvey certainly knows that - NYS Attorney General already represented him in civil rights lawsuits that I brought against him, on behalf of myself and my clients.
Which brings me to the civil rights lawsuit Neroni v Zayas that I have filed on behalf of my husband, Frederick J. Neroni, in January of 2013, 4 years ago.
The same blessed 3rd Department and is Grievance Committee obtained a dismissal of that civil rights lawsuit, charging specifically that interpreting the criminal Unauthorized Practice of Law statute, in the absence of a statutory definition of what the "practice of law" is, as prohibiting employment as a paralegal or legal assistant, positions that do not require a law license or even college education from anybody else, would be considered by courts unauthorized practice of law for a suspended or disbarred attorney.
In their pleadings in Neroni v Zayas, on their motion to dismiss, they claimed that, if a suspended or disbarred attorney is employed as a paralegal or legal assistant, his prosecution for UPL is unlikely to the point that it was frivolous to even raise that issue.
Well, now the 3rd Department and its Grievance Committee backtracked on their own statements in their own pleadings in that civil rights lawsuit and revived Neroni v Zayas, re-defining, in arrears, the meaning of hundreds of orders of suspension and disbarment in New York, in violation of an ex post facto clause.
There is no cure for being stupid, and judges who are political appointees to appellate benches are no exception.
It is apparent that, through cases like attorney Castillo's and through decisions as stupid as the decision prohibiting to attorney Castillo to work as a paralegal or legal assistant as "practice of law" requiring a law license - while allowing anybody else, with or without a high school diploma or law license, to work in the same positions without any government regulation or control - courts demonstrate not only their own incompetence and dishonesty, but also the desperate struggle of the legal profession to grab onto the remnants of control in a situation where the illegality of "attorney regulation", where the government cannot even define through as statute, as the law requires, what the heck it is regulating - to hang onto its lucrative monopoly for the "practice of law", whatever that is.
Note the 3rd Department's reference as to what constitutes UPL not to the statute, but to court cases, while courts are not allowed in New York to legislate and amend criminal UPL statutes by writing into them what is not contained in their plain text.
The 3rd Department refers in its support to: Matter of Brandes, of 2015 (I wrote about this case here), and Matter of Dudley, of 2002.
Matter of Dudley, by the way, was removed from the Internet - and even from the searchable database of the Appellate Division 3rd Department - but I was able to obtain a "cached" version of it, here it is:
MEMORANDUM AND ORDER
The attorney's name is RICHARD ALBERT Dudley. You can see his history by putting both first and last name into the attorney registration database.
Not only New York continues to regulate as "practice of law" and "unauthorized practice of law" what it did not even define by statute - which is a violation of due process of all people so regulated.
But, New York is doing it also by stealth, and by fraudulently using inapplicable cases, while erasing the track to those cases on the Internet, to defy verification.
So, I wonder what the 3rd Department will say now in Neroni v Zayas case - where I, on behalf of my husband, 4 years ago, put in the equal protection claim about their conduct that they claimed to the judge (falsely) they will never do?
They did, didn't they?
And, they now proclaimed 25 jobs as "unauthorized practice of law" for suspended and disbarred attorneys, but not for anybody else, while making 22 out of 25 prohibited jobs secret - which is not how notice in criminal proceedings works.
I filed a FOIL request with Attorney Grievance Committee of the 3d Department today, the "Petitioner" in the Castillo case, asking for copies of the motion and opposition that led to this interesting decision about "practice of law" by working as a paralegal, legal assistant, law clerk, and in other 22 positions that the court did not care to disclose. I will post their reply when I receive it.
I wonder whether attorney Castillo, and all other suspended or disbarred attorneys in New York whose orders of suspension or disbarment were redefined backwards in this decision will file a class action on equal protections, due process and ex post facto grounds.
If they don't, the only reason why is - because a suspended attorney cannot file a pro se class action, there should be a licensed attorney doing it, and licensed attorneys, seeing how courts are doing whatever they want in breaking the law under the guise of enforcing it, would be afraid to do that.
Anyway, I will continue to monitor the interesting developments with regulation of "we do not know what it is, but we regulate it anyway" by New York courts, and courts in other American jurisdictions, and will report those developments here.