The survival of the armadillo #MonicaDuffy

Recently I ran a blog about a case where the attorney disciplinary committee of the New York State Supreme Court, Appellate Division Third Judicial Department opposed, and the 3rd Department court denied, a motion by a suspended attorney Gaspar Castillo who asked the court, through a motion, whether 21 certain activities, most of them not appearing in the court decision, which were not unauthorized practice of law (UPL) to individuals who never had a law license, will be UPL to him, Gaspar Castillo, a suspended attorney.

I promised my readers to file a FOIL request to verify which activities were secretly recognized by the 3rd Department as UPL - for some people, but not for others.

Of course, the 3rd Department does not have the legislative power in regards to what constitutes a criminal offense in New York.

Of course, what constitute the practice of law in New York, is not defined by statute, which means, no notice is given to individuals as to a regulated activity, and, thus, such activity may not be regulated as a constitutional due process point - to prevent arbitrary enforcement on a case-by-case ad hoc, bill-of-attainder basis.

Of course, what constitutes UPL is also not defined by statute other than a prohibition to "practice" whatever it is the practice of law is in New York without a license to do that.

I did file that FOIL request.

First, I have read advisory opinions of the Committee on Open Government and found there an advisory opinion stating that:

• if there was a case prosecuted by a public prosecutor in a public court case - (and a motion by an already disciplined attorney is public record, Judiciary Law 90(10));
• court pleadings in such case that the prosecutor's office has in custody, are subject to Freedom of Information Law.

With that in mind I filed a FOIL request with the prosecuting office in Gaspar Castillo's case - the 3rd Department Grievance Committee.

My further interaction with various officials regarding the FOIL request reminded me of a fairy tale by Rudyard Kipling called "The Beginning of the Armadillos".

In that story, a Mother Jaguar teaches her son the Painted Jaguar how to hunt, specifically how to hunt tortoises and hedgehogs, and how to distinguish between the two.

"She said to him ever so many times, graciously waving her tail, 'My son, when you find a Hedgehog you must drop him into the water and then he will uncoil, and when you catch a Tortoise you must scoop him out of his shell with your paw.' And so that was all right, Best Beloved."

Of course, those to be hunted, overheard the teachings and decide to confuse the baby jaguar and escape with their lives.

And confuse they did.  After a thorough confusing session, like that:

"'Now attend to me,' said Painted Jaguar, 'because this is very important. My mother said that when I meet a Hedgehog I am to drop him into the water and then he will uncoil, and when I meet a Tortoise I am to scoop him out of his shell with my paw. Now which of you is Hedgehog and which is Tortoise? because, to save my spots, I can't tell.'

'Are you sure of what your Mummy told you?' said Stickly-Prickly Hedgehog. 'Are you quite sure? Perhaps she said that when you uncoil a Tortoise you must shell him out of the water with a scoop, and when you paw a Hedgehog you must drop him on the shell.'

'Are you sure of what your Mummy told you?' said Slow-and-Solid Tortoise. 'Are you quite sure? Perhaps she said that when you water a Hedgehog you must drop him into your paw, and when you meet a Tortoise you must shell him till he uncoils.'

'I don't think it was at all like that,' said Painted Jaguar, but he felt a little puzzled; 'but, please, say it again more distinctly.'

'When you scoop water with your paw you uncoil it with a Hedgehog,' said Stickly-Prickly. 'Remember that, because it's important.'

'But,' said the Tortoise, 'when you paw your meat you drop it into a Tortoise with a scoop. Why can't you understand?'"

the baby Painted Jaguar finally said:

'You are making my spots ache'.

That's exactly the state of confusion that a person gets in trying to figure out the mess attorney disciplinary authorities created in designation who is who in the disciplinary process.

Here is the response I've got from Monica Duffy, Chief Attorney of the Attorney Grievance Committee of the 3rd Department (in addition to being a prosecutor and, as she claimed, part of the judiciary, she was also part of a legislative committee on attorney discipline in 2015 - that would make anybody's spots ache), which was attached to her e-mail to me:

Imagine that you are FOILing a District Attorney's office, and the response the District Attorney gives you comes from the court on the District Attorney's behalf.

That's an immediate ground to move to disqualify BOTH the District Attorney AND the court - under the court-advocate rule.

Courts and prosecutors (advocates) MAY NOT, by the latest constitutional precedent, Williams v Pennsylvania, act as one.

Yet, in attorney disciplinary proceedings in New York that happens all the time.

The disciplinary prosecutors:

1) oppose motions to dismiss disciplinary proceedings as commenced and handled by prosecutors who are part of the court, but

2) prosecutors claim they are part of the court for purposes of access to records

I filed an administrative appeal where I said, specifically, this:

Duffy cannot deny she acted as a prosecutor in Gaspar Castillo's case - she is listed as "Petitioner" (party to the disciplinary proceeding) on the court's decision in that case.

I then pointed out that the records are not sealed, it is an open court case (since the clerk readily offered me the records under Judiciary Law 255 for the higher rates set under that statute, Judiciary Law 255, while I was asking for records under a different statute (FOIL), from a different agency (executive, prosecutorial branch), and was asking for scanned copies for free).

Three days ago, I received a letter from an attorney representing New York State Court Administration, while I specifically addressed my administrative appeal under FOIL to the Chairman of the 3rd Department Attorney Grievance Committee, as the law requires me to do, and only that individual was authorized to author decisions on that administrative appeal.

I have sent a reply to Shawn Kerby pointing out to her that she has no authority whatsoever to author decisions on administrative appeals of denials of FOIL requests, and that I consider the administrative appeal sent to the Chairman of AGC pending until I receive a decision from him.

Let's remember what the 9th Circuit recently said in its decision about Donald Trump's executive order when Donald Trump's attorneys argued that the matter is moot because Donald Trump's attorneys already announced that the order does not apply to lawful permanent residents - the 9th Circuit said that attorneys do not have authority to make such decisions and to change the President's executive order.

Same here, Shawn Kerby does not have authority to issue decisions on administrative appeals.

I will notify the Committee on Open Government about my standoff with the 3rd Department Attorney Grievance Committee, sought to be protected by the 3rd Department court and by the New York State Court Administration and claimed to be "part of the court".

Because, if the 3rd Department Committee is "part of the court", so that FOIL requests to the Committee as a prosecutor must be treated as Judiciary Law 255 requests to the court, all attorney disciplinary proceedings in New York are void under Williams v Pennsylvania, under the accuser-adjudicator rule.

It is also very interesting how the 4th Department contributed to the mess.

The 4th Department already tried to pull the same kind of trick back in 2014 when I filed a FOIL request for the time-sheets of disciplinary prosecutor Mary Gasparini when she asked for an adjournment of a certain date in a disciplinary case because she was "teaching a CLE course" - during taxpayer-paid work hours.

At that time, in a letter marked CONFIDENTIAL - in answer to my PUBLIC FOIL request - the 4th Department attorney disciplinary committee claimed that it is part of the judiciary, and thus not subject to FOIL requests.


Yet, at the very same time, the very same disciplinary committee was opposing my cross-motion to dismiss disciplinary proceedings on constitutional grounds because the court and the prosecutor was ONE.

Of course, after I was suspended in November of 2015, in June of 2016, the U.S. Supreme Court ruled that a court cannot act at the same time as an accuser and adjudicator, and that decisions produced by such courts are void - meaning, that ALL attorney disciplinary decisions by New York courts where disciplinary prosecutors are part of the court, were rendered void by that decision.

Of course, the U.S. Supreme Court would not apply its own just-created precedent, and several others - as a matter of "discretion" (see, enforcement of the U.S. Constitution that all judges in this country are sworn to uphold, is nowadays "discretionary").

The 4th Department, by the way, finally relented and DID give me the time-sheets of prosecutor Mary Gasparini.

The 3rd Department did not relent, and, after I have filed an administrative appeal for constructive denial of my FOIL request by:

1) transferring it from the executive branch (prosecutor's office) to
2) court (judiciary branch);
3) "deeming" that I have filed a Judiciary Law 255 to the court (judicial branch) instead of what I actually did, a FOIL request to the prosecutor's office, an executive branch; and
4) applying higher fees, meant for Judiciary Law 255 and not for FOIL - where records are supposed to be provided for free to my e-mail address since the Grievance Committee, I am sure, has or has access to high-speed scanners which would scan as fast as they would copy (the standard of providing copies of scanned records for free), and
5) by having an attorney representing the New York State Court Administration acting as counsel for the Chairman of the Attorney Disciplinary Committee who has the exclusive, non-delegable authority to decide administrative appeals for denial of FOIL requests.

What the "honorable" legal and judicial profession does not seem to get through their honorable heads though is that by pretending they have institutional split personality disorder and playing a game of "I am a prosecutor to prosecute, but I am a judge for FOIL and immunity purposes, if sued in federal court" (judicial immunity derived from being "an arm of the court" is consistently used by New York attorney disciplinary committees to have civil rights lawsuits dismissed without review) - playing such games with the public does not increase respect to the game-players.

The Tortoise and the Hedgehog further confused the baby Painted Jaguar by blending into the Armadillos - so that they cannot be scooped out of their shell and would not need to uncurl when thrown into the water.

I know one other substance that does not sink when thrown into the water - and that's what the "blended" regulation of the legal profession by prosecutors who are also judges has turned into.