"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.

Thursday, April 13, 2017

Schoolchildren in New York (and all other people), tremble, #AttorneyAlisonCoan is coming for you. How New York criminalized everyday activities to prevent a suspended criminal defense attorney from earning a living

I have written on this blog about how an experienced criminal defense attorney Gaspar Castillo was first wrongly banned from criminal cases in federal court, then suspended in state court, and then asked the court that is regulating his license (New York State Supreme Court Appellate Division Third Judicial Department) to modify his order of suspension in order to allow him to do what individuals never licensed to practice law are routinely doing in New York.

I understand that attorney Castillo may have tried to save money (the filing fee for a motion in the 3rd Department is $45, as compared to the filing fee of $400, nearly 10 times more in federal court) and effort on litigation, and do it "amicably" with the regulators of his license instead of suing them in federal court for constitutionality of attorney regulation system.

Nevertheless, the court rejected his motion, and, while doing it, claimed, following the previous claim of the 2nd Department, supported by the Court of Appeals, that when a disbarred (and now a suspended) attorney does the same things as never-licensed paralegals or legal secretaries, or "law experts" like unlicensed law professors, do - that constitutes the crime of unauthorized practice of law.

I also described my interaction, let's put it this way, with the 3rd Department Grievance Committee that claimed that it is a court for purposes of FOIL requests, contrary to FOIL jurisprudence that allows to obtain from a prosecutor, through FOIL, documents that were filed or about to be filed in court - and that the New York State Court Administration supported the hat-switching of the Attorney Grievance Committee now pretending it is a court, now - a prosecutor.   

Of course, what such hat-switching does is it creates an unconstitutional situation where attorney grievance committees that claim they are part of regulating courts, acts as both a prosecutor and an adjudicator in the same matter, which is specifically prohibited by due process, and a recent U.S. Supreme Court case, Williams v Pennsylvania, which stated:  "A constitutionally intolerable probability of bias exists when the same person serves as both accuser and adjudicator in a case."

But, anyway, I decided to cut through the chase, pay the money they claimed that I owe under the Judiciary Law 255 to the court (while I never made a Judiciary Law 255 request to the court) instead of receive documents for free under FOIL, as I was entitled to - just to see what is in those documents, because the decision in Gaspar Castillo's case mentioned a long list of activities that Gaspar Castillo asked the court to allow him to do, but did not specify that list, only claiming that he wanted to perform the tasks of a paralegl and to practice law.

Here is the list of activities that suspended attorney Gaspar Castillo asked the 3rd Department to allow him to perform and that the 3rd Department refused to allow him to perform claiming that performing ALL of those activities would be, for suspended attorney Gaspar Castillo, unauthorized practice of law in violation of his order of suspension.

Of course, all of the above activities are routinely done in New York by unlicensed individuals without any problem, as attorney Castillo pointed out to the court.

The court faced a formidable task in determining whether activities on the list are, or are not, the practice of law - because, guess what, what constitutes the practice of law, is not defined in New York by any statute (which is a definition of vague laws subject to arbitrary enforcement in violation of due process).

Yet, instead of striking New York attorney regulation long time ago, the U.S. Supreme Court, despite many challenges to that regulation, "exercises discretion" not to touch that messy area and to leave the unconstitutional regulation in place, allowing courts to be creative and to decide on a case-by-case basis what the heck the practice of law and unauthorized practice of law is.

And they do decide, and make definitions simply to suit their whim and desire not to allow a suspended or disbarred attorney to earn money in any way, including in ways that are perfectly permissible to never-licensed individuals.

And, of course, a criminal statute is unconstitutional ON ITS FACE (not to mention "as applied") if it does not say what the heck it prohibits, and says it clearly.

Judiciary Law 478 says only the following (I broke this unintelligible paragraph down into smaller sections with bullet lists, to make it more digestible):

"It shall be unlawful for any natural person to
  • practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself or herself in a court of record in this state, or
  • to furnish attorneys or counsel or an attorney and counsel to render legal services, or
  • to hold himself or herself out to the public as being entitled to practice law as aforesaid, or in any other manner,
  • or to assume to be an attorney or counselor-at-law, or
  • to assume, use, or advertise the title of lawyer, or attorney and counselor-at-law, or attorney-at-law or counselor-at-law, or attorney, or counselor, or attorney and counselor, or equivalent terms in any language, in such manner as to convey the impression that he or she is a legal practitioner of law or in any manner to advertise that he or she either alone or together with any other persons or person has, owns, conducts or maintains a law office or law and collection office, or office of any kind for the practice of law, without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath.  
Provided, however, that nothing in this section shall be held to apply

(1) to officers of societies for the prevention of cruelty to animals, duly appointed, when exercising the special powers conferred upon such corporations under section fourteen hundred three of the not-for-profit corporation law;  or

(2) to law students who have completed at least two semesters of law school or persons who have graduated from a law school, who have taken the examination for admittance to practice law in the courts of record in the state immediately available after graduation from law school, or the examination immediately available after being notified by the board of law examiners that they failed to pass said exam, and who have not been notified by the board of law examiners that they have failed to pass two such examinations, acting under the supervision of a legal aid organization when such students and persons are acting under a program approved by the appellate division of the supreme court of the department in which the principal office of such organization is located and specifying the extent to which such students and persons may engage in activities otherwise prohibited by this statute;  or

(3) to law students who have completed at least two semesters of law school, or to persons who have graduated from a law school approved pursuant to the rules of the court of appeals for the admission of attorneys and counselors-at-law and who have taken the examination for admission to practice as an attorney and counselor-at-law immediately available after graduation from law school or the examination immediately available after being notified by the board of law examiners that they failed to pass said exam, and who have not been notified by the board of law examiners that they have failed to pass two such examinations, when such students or persons are acting under the supervision of the state or a subdivision thereof or of any officer or agency of the state or a subdivision thereof, pursuant to a program approved by the appellate division of the supreme court of the department within which such activities are taking place and specifying the extent to which they may engage in activities otherwise prohibited by this statute and those powers of the supervising governmental entity or officer in connection with which they may engage in such activities;  or

(4) an attorney and counselor-at-law or the equivalent who is admitted to the bar in another state, territory, district or foreign country and who has been admitted to practice pro hac vice in the state of New York within the limitations prescribed in the rules of the court of appeals;  or

(5) an attorney licensed as a legal consultant under rules adopted by the court of appeals pursuant to subdivision six of section fifty-three of this chapter and rendering legal services in the state within limitations prescribed in such rules."

Note that Judiciary Law 478 does not define what constitutes
  • "legal services", or
  • "practice of law".
Note that Judiciary Law 478 only prohibits appearance on behalf of other persons "in a court of record", which is not ALL courts operating in the State of New York.

I wrote last summer about New York Court of Appeals' disgraceful decision regarding appeals from convictions in courts "not of record", justice courts.

So, "courts not of record" apparently have downsides and upsides.

The downside is that it has judges who do not have ANY educational requirements at all and can be elementary school dropouts - but they will be deciding your fate if you get into that court.

And, the downside, according to People v Smith, is that "affidavit of errors" of what happened in court trumps the actual audio record - according to New York Court of Appeals, I described how fair and constitutional that is.

The upside is that, apparently, a litigant in that court can be represented by anybody, not necessarily by a licensed attorney - because prohibition for the practice of law and appearing in court on behalf of others is applicable, through Judiciary Law 478, only to "courts of record", and, according to the highest court in the state of New York, justice courts are not "courts of record".

So, by law, suspended and disbarred attorneys, and never-licensed individuals, according to New York State statutory law, may represent clients in justice courts.

Of course, Judiciary Law 90 contradicts Judiciary Law 478 because, where Judiciary Law 478 does not require a law license to practice in front of courts "not of record", and courts "of record" are designated by New York State Constitution Article VI paragraph 1(a):

  1. b. The court of appeals,
  2. the supreme court including
  3. the appellate divisions thereof, the court of claims,
  4. the county court,
  5. the surrogate's court,
  6. the family court,
  7. the courts or court of civil and criminal jurisdiction of the city of New York, and
  8. such other courts as the legislature may determine
shall be courts of record", and by Judiciary Law 2:

"Courts of record. Each of the following courts of the state is a court of record: 1. The court for the trial of impeachments.
2. A court on the judiciary.
3. The court of appeals.
4. The appellate division of the supreme court in each department.
5. The supreme court.
6. The court of claims.
7. A county court in each county, except the counties of New York, Bronx, Kings, Queens and Richmond.
8. The family court.
9. A surrogate's court in each county.
10. Each city court outside the city of New York.
11. The district court in each county or portion thereof in which such court shall be established.
12. The civil court of the city of New York and the criminal court of the city of New York.
All courts other than those specified in this section are courts not of record."

And, of course, a person whose license is taken, should return to his pre-licensing status and be allowed to do what the law allowed him to do before he obtained a law license.

That is the law.


Not so fast, because when did such a trifle as the law deter a determined disciplinary prosecutor and the court bent on rubber-stamping anything a disciplinary prosecutor (appointed by the court) asks for - especially to quash the livelihood of an independent criminal defense attorney that the same court suspended?

Disciplinary prosecutor from the 3rd Department Attorney Grievance Committee #AlisonCoan

fought tooth and claw against allowing suspended attorney Gaspar Castillo to do what is usually done by staff of law firms, insurance firms, by language editors, transcribers, business owners, and by ordinary people, including schoolchildren in their everyday lives (like prepare and write reports, summarize texts, do factual investigations about different things, proofread and edit texts for spelling and grammar errors).

The luminary of the 3rd Department Attorney Grievance Committee Alison Coan claimed that all of the activities in the list constitute unauthorized practice of law.

Moreover, Alison Coan display an interesting level of disbelief in the honor of ANY licensed attorneys, claiming that, first, Gaspar Castillo will likely be BETTER QUALIFIED - as an attorney - than ANY of his potential employer who would employ him as a paralegal or legal secretary.

That is an interesting recognition.

So, the 3rd Department prosecutor acknowledged in a public pleading that it has deprived the public of THE MOST qualified criminal defense attorney in the state of New York?

But that's not all.

Alison Coan further asserted in her pleadings that ANY licensed attorney who would employ Gaspar Castillo as a paralegal, legal secretary, fact-checker, proof-reader, editor or investigator, will necessarily succumb to the temptation to commit A CRIME of solicitation, aiding and abetting unauthorized practice of law for the licensed attorney's personal gain.

And, that it will be impossible to catch that little criminal teamwork, so it is better to prohibit Gaspar Castillo to engage in activities that FOR HIM ALONE and for members of his class will be unauthorized practice of law.

By claiming that otherwise lawful activities will be UPL for Gaspar Castillo because he is
  1. a knowledgeable suspended attorney; and
  2. a suspended attorney.

By the way, Alison Coan claimed that Gaspar Castillo is a "non-attorney", and no different than a disbarred attorney, and the 3rd Department agreed - while I wonder how, if I am, as a suspended attorney, a "non-attorney", why New York State Court Administration then solicits me to pay a licensing fee, as it did this year, which is only an obligation of licensed attorneys? - see my registration status showing "next registration" in March of 2017,

Attorney Castillo also has a "next registration" date - somehow, in the past:

Compare with the record of a disbarred attorney Sheldon Silver who does not have a "next registration" date because he is disbarred:

So, Gaspar Castillo was correct stating that New York State was treating him as an attorney.

Yet, the 3rd Department court agreed with the 3rd Department prosecutor that Gaspar Castillo is a "non-attorney" - even though the State of New York continues to list his "next registration" date and, no doubt, continues to solicit from him licensing fees, which the State of New York does not do with disbarred attorneys.

There is also one interesting discrepancy - a difference between Judiciary Law 478 which does not prohibit unlicensed representation in courts "not of record" and Judiciary Law 90(2) which requires appellate divisions to insert into each order of suspension or disbarment the following prohibitions:

"a. The appearance as an attorney or counsellor-at-law before any court, judge, justice, board, commission or other public authority.

b. The giving to another of an opinion as to the law or its application, or of any advice in relation thereto."

Note that Judiciary Law 478

  1. does not define what the practice of law is, or what constitute provision of "legal services"; and
  2. that Judiciary Law 90(2) prohibits only appearance as "an attorney or counsellor-at-law", but not as a representative "before any court, judge, justice, board, commission or other public authority", while Judiciary Law 478 prohibits representing others without a law license only before "courts of record", leaving out:
    1. courts not of record;
    2. boards;
    3. commissions, and "other public authorities".
Note also that neither Judiciary Law 478 nor Judiciary Law 90(2) prohibits appearing for another in front of any PRIVATE authority - like in private mediation or arbitration.

Yet, I am sure that if I, for example, would appear in front of a private mediator or arbitrator, or an administrative board or commission, or in front of a school on behalf of a client, I will be immediately charged for unauthorized practice of law.

So, the law was murky in the first place, before attorney Castillo asked his 25-point question.

  1. What constituted the practice of law or legal services was not clearly defined, so the government, constitutionally, had no right to regulate what it could not clearly define;
  2. Judiciary Law 478 did not prohibit any of the activities on the 25-point list;
  3. Judiciary Law 90(2) and the order of suspension based on it also did not prohibit any of the activities on the 25-point list.
  4. Courts in New York are not allowed to legislate from the bench and CHANGE a criminal statute (Judiciary Law 478) by grafting on it what conveniently came to mind in order to deprive one person or a class of persons of any reasonable possibility to earn a living.

There is no such thing as a crime "for some people, and not for others", for those the prosecutor and the court dislikes as opposed to those the prosecutor and the court favor.

Apparently, for Alison Coan that is too much to understand, especially since she has no experience in criminal law, according to her own profile in the alumni group of the Albany Law School:

So, Alison Coan does not have either criminal or constitutional law experience, while trying to plow into both, clumsily, but successfully because the 3rd Department will endorse anything, no matter how sloppy, crazy and incompetent, if it kills a livelihood of an attorney it targeted for destruction, lawfully or unlawfully, does not matter.

I posted the full text of the unauthorized practice of law statute, Judiciary Law 478, above.

That text does not include ANY of the 25 activities attorney Gaspar Castillo was asking about, as unauthorized practice of law.

Thus, a court of law may not "include" into that statute activities that are not plainly and clearly included there.

And, if even a super-qualified attorney has to ask the court what an unauthorized practice statute means and how does it correlate with his order of suspension, that means only one thing - that the statute is unconstitutionally vague, and that the only authority (and sworn duty) the 3rd Department court had was to declare that statute as unconstitutionally vague and strike attorney regulation within its territory.

But, doing so would have detracted from the 3rd Department court's own power as a regulator.  So, the 3rd Department preferred not to do its duty in order to preserve its power.  Courts are not political entities, right?

Instead of doing its duty, 3rd Department court agreed with Alison Coan, denying the motion to suspended attorney Gaspar Castillo, and including into the UPL laws within its jurisdiction the 25 above listed activities.

Of course, it did not list all of these activities in the actual decision, and of course, I had to pay money to get a copy of Gaspar Castillo's motion, but the fact remains:

  • A motion was made in the precedent-setting 3rd Department asking to define Judiciary Law 478 as to 25 activities, whether they constitute unauthorized practice of law;
  • The list of 25 activities is a public record;
  • The 3rd Department answered the question in the affirmative, that these 25 activities DO constitute unauthorized practice of law if practiced without a law license - and it does not matter whether the person practicing without a law license is a suspended or disbarred attorney (who lost his law license) or whether that person never had a law license in the first place - Judiciary Law 478 makes no such distinction, and neither can the court.

So, since criminal law - and unauthorized practice of law, Judiciary Law 478, is a criminal statute - must apply evenly to all, and since the 3rd Department is a precedent-setting court in a large jurisdiction

("There are 28 counties in the three judicial districts making up the Third Department, which stretches from the Canadian border in the north to the lower Catskills in the south and from the Vermont and Massachusetts borders in the east to the Finger Lakes in the west.  The Third Department includes just over half of New York's land area and contains about one seventh of the State's population),

people residing in the 3rd Department now need to go through a law school and law licensing to:

Let's remember what those activities, prohibited by the 3rd Department as the crime of unauthorized practice of law, actually mean - I color-coded in yellow paralegal activities (not licensed in New York) and in green any other activities which are also not licensed in New York:

  1. organizing and compiling legal documents – secretarial work;
  2. organizing and putting together trial/hearing notebooks – secretarial work;
  3. Fill out/fill in legal documents – secretarial work;
  4. Perform legal research on issues as directed – paralegal work, not regulated in New York, and regularly and routinely done in New York without a law license;
  5. Compile and organize relevant case law and statutes – paralegal work;
  6. Draft briefs on legal issues as directed – paralegal work;
  7. Compile and put together records on appeal – secretarial work (putting together documents following a provided checklist);
  8. File documents - secretarial work;
  9. Prepare and sign affidavits of filing (service) – secretarial and process server work (that a disbarred attorney was targeted for UPL for acting as a process server, which in New York does not require a law license, and only requires to be over 18 years of age, was challenged and rejected by the U.S. District Court for the Northern District of New York - where the same 3rd Department that contended for Gaspar Castillo that it is UPL, claimed to the federal court that it will never deem such activity UPL);
  10. Serve documents and prepare and sign affidavits – process server work;
  11. Review CDs of police interrogations and make notes of times and words spoken as directed – secretarial work;
  12. Proof read and edit legal documents – language editor/secretarial work, as proof-reading and editing may address only spelling, grammar and stylistics;
  13. Proof read and edit contracts – language editor work, same as above;
  14. Summarize testimony in hearing or trial transcripts –  secretarial work, a school English class assignment, summarizing contents of a text;
  15. Summarize witness statements – same as above;
  16. Prepare statements of sale and other closing documents – secretarial or paralegal work; in New York, such documents are routinely prepared by paralegals and secretaries;
  17. Draft deed, mortgage, satisfaction, and other real estate documents for review – paralegal or even secretarial work, real estate documents are routinely drafted in New York by paralegals and legal secretaries and not attorneys;
  18. Review insurance company documents for compliance with underwriting and coverage requirements – same as what a secretary in insurance broker’s office would do;
  19. Review insurance claims for underwriting and coverage requirements – the work of unlicensed personnel of an insurance company and not a lawyer;
  20. Process insurance company claim documents – work of unlicensed personnel, including secretarial personnel, of an insurance company;
  21. Perform investigative duties or work in an investigative capacity – journalistic work; private investigators are licensed in New York, but are not required to have a law degree or a law license; unlicensed individuals routinely do factual investigations for themselves or others without the necessity of being licensed as investigators, and especially as attorneysI am an investigative journalist, I guess I am committing a crime with every blog I publish;
  22. Prepare and write reports – journalistic work, anybody can and do prepare and write reports, it does not necessarily have to be about the law or legal advice;  people prepare and write reports for their supervisors in all businesses and professions, including in school, starting from elementary school, which does not constitute the practice of law;
  23. Review immigration documents – immigration law is federal and not subject to state regulation of attorneys;
  24. Prepare immigration documents including petition for legal residency, status, naturalization, applications for work authorization or other legal status in the United States – it is paralegal work and, same as mentioned above, immigration law is federal law not subject to state regulation.

It is easy to see that ALL activities that Gaspar Castillo wanted to engage in and earn money are not the practice of law.

Yet, in their zeal to prohibit Gaspar Castillo to have any income, the 3rd Department and its brainless and incompetent prosecutors made everyday activities into the crime of unauthorized practice of law.

Now if you work as:

  1. an investigative journalist;
  2. a private investigator;
  3. a fact-checker;
  4. a secretary in an insurance company, law office or anywhere else;
  5. a transcriber from a CD;;
  6. as a paralegal;
  7. a process server - you must have a law degree for your employment.
Moreover, even outside of any employment, if you "prepare for another":

  • a summary of a text;
  • a report of ANY kind - which is what people do on a regular basis for their supervisors, relatives, friends, teachers - you are engaging in the crime of unauthorized practice of law?

Yes, it is.

It is a crazy argument by disciplinary prosecutor Alison Coan - which was ACCEPTED and MADE INTO LAW by the 3rd Department Court for 28 counties in New York.

Does it craziness protect consumers?

Not really - Alison Coan acknowledged that Gaspar Castillo actually is an expert in criminal law, so if (theoretically) he gives legal advice, she does not have to worry that the advice will be bad and will hurt the consumer.

No, the point is to block an expert in criminal law, in a state where there is a dearth of good criminal defense attorneys working for the poor, from helping ANYBODY, in any way, even in providing help to other attorneys as a paralegal, secretary, investigator, fact-checker or language editor, filer or process server - what is routinely allowed in New York for anybody else without any license whatsoever.

And that is called, ladies in gentlemen, a classic Bill of Attainder, prohibited by the U.S. Constitution that both Allison Coan and the 3rd Department judges who made this brainless order, were sworn to uphold.

Do they care about the U.S. Constitution?

The answer to this question is painfully obvious.

No comments:

Post a Comment