New York unconstitutionally strips inmate of unlicensed representation of their choice - by unconsitutionally prosecuting a "fake attorney" for unauthorized practice of law while not even having a definition of what the practice of law is

When I came to intern (clinical practice is a graduation requirements in Albany Law School) to Prisoners Legal Services of New York, I was put on intake of prisoners' letters.

And, as part of training, teaching me how to respond to various types of claims made by prisoners, I was told about policy and budgetary constraints of Prisoners Legal Services - a training which shaped my future law practice.

Because in my training I was told that, by policy or budgetary constraints, or both, PLS does not handle the following claims for prisoners:

• unlawful solitary confinement for less than a year and a half;
• criminal appeals;
• civil rights actions;
• parole hearings;
• violation of parole or probation hearings;
• appeals of denial of paroles;
• habeas corpus relief.

What we did handle was:

• administrative appeals for denial of medical or mental health help, and
• unlawful solitary confinement for more than a year and a half;
• abuse of prisoners by guards - through letters or Article 78 petitions (which happened extremely rarely, to the point of having that as a special event in the office when such a case was to be filed), but not through civil rights actions.

Having worked in an office of an attorney who handled the same case on all sides - Family Court (child abuse), the parallel criminal case, the parallel administrative "indicated report" proceedings, the parallel child support proceedings against parents, and other related legal matters for the same client - I saw the flaw of such an approach.

It does not really help an unlawfully confined petition to have only his medical issues addressed when what he needs is a criminal appeal, a habeas corpus petition and a civil rights action - to free him and get him proper compensation for a wrongful conviction.

But, PLS had policy and budget constraints, and nobody else represented such prisoners.

Their letters, many of them barely - if at all - literate, begged PLS, as a hope of last resort, to help them, because no other attorney is interested.

And I wrote rejection letters - as I was ordered to do.

When I was leaving, attorneys in PLS expressed a wish that, when I get admitted to practice law, I would undertake some of representation of the cases that they cannot take - because of the sea of unmet need.

But, PLS lawyers told me, if you do not do that - you will not be unique, because nobody does.

When nobody does, and when the only organization in the State of New York - by policy, or budgetary constraints, or both - refuses to take certain types of cases, like post-conviction relief, including parole appeals, what kicks in is the constitutional prohibition to regulate the practice of law in this area.

Existing since 1969.

The case was Johnson v Avery, out of Tennessee, where the U.S. Supreme Court held the following:

"Held: In the absence of some provision by the State of Tennessee for a reasonable alternative to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners."

The case was right on point as to lack of reasonable alternatives to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, even though the case dealt with other inmates "practicing law without a license", and not unlicensed members of the public outside of the prison system.

But, the rationale of the ruling still applies:

the state may not regulate the practice of law in the area of post-conviction relief when such regulation leads to stripping people of any possibility of getting help with that type of relief.

Did New York adhere to that?

Of course, not.

As a dog in a manger, New York State Attorney General hopped on a case where, by ruling of the U.S. Supreme Court, state could not regulate the "practice of law" (an activity which, by the way, The State of New York did not care to even clearly define before starting to regulate it, and regulating it for more than a century, undefined).

The big brave NYS Attorney General Eric Schneiderman, "protector" of human rights (see my blog from a couple of  years ago listing all court cases where he acted as - no, not as a protector - as an opponent against victims of civil rights on behalf of perpetrators of civil rights violations ), the kind of "protector" who strongly opposes recovery of damages for victims of wrongful convictions, jumped right into the fray.

To protect the public, of course.

Because - for your information - "protecting the public", a la Eric Schneiderman, is stripping poor and illiterate inmates of an ability to receive any help with their post-conviction relief.

The very conduct that the U.S. Supreme Court prohibited 48 years ago as being against the U.S. Constitution, the U.S. Constitution that Schneiderman pledged to oppose.

The New York State Attorney General boldly claimed the supposed "fake attorney" Antonia Barrone, a/k/a Mario Vrendenburg (fake only because s/he does not have a license, not because of quality of services s/he provided to the public), defrauded the public - you know by what?

By practicing without a license, by the so-called "unauthorized practice of law.

So, now we have unauthorized practice of law as a type of fraud.

In other words, in criminal proceedings against a PROVIDER of legal services harm to the CONSUMERS of such services is presumed in New York.

Well, the same is happening in other states across the United States.

But, when CONSUMERS sue - in New York - for their RIGHT to choose an unlicensed provider, because they only trust a provider unregulated by the government when the government is an opponent in litigation, the consumer is denied that right of choice - and ordered into a mental health evaluation for even asking.  The case about it was filed in federal court in 2014, Townsend v New York, 1:14-cv-06079, (EDNY 2014), and decided against he consumer.

Moreover, in three states - California, Michigan and Texas - when a consumer was represented in a criminal proceeding by an unlicensed provider of legal services, courts refused to reverse the conviction, refusing to agree with the consumer that harm to consumer from representation by an unlicensed provider should be presumed.

So, states, without having a clear definition as to what the heck they are regulating as "practice of law", 

PRESUME HARM - to consumer - from "unauthorized practice of law", when prosecuting the PROVIDER; 

but

REFUSE TO PRESUME HARM - to the same consumer - from the same "unauthorized practice of law" - when suing the consumer, and when the consumer is represented by an unlicensed provider.

And, in New York, after announcing a victory for consumers, protecting them from the "presumed fraud" of unauthorized practice of law, you know what the "winner" of the case and "protector" of the public Eric Schneiderman started to do?

You will never guess.

On behalf of PRISON AUTHORITIES - that is, opponent's of the "fake attorney's" clients in litigation - attorney Schneiderman now started to review of all appeals handled by the "fake attorney".

Meaning - if the "fake attorney" WON such appeals, Schneiderman, on behalf of prison authorities, will contest the decision because representation was not by a licensed attorney.

So, who the state protects in prosecuting for UPL a provider of services to inmates for post-conviction relief, where licensed attorneys are not interested in such a representation, and where such representation is allowed for 48 years by the U.S. Supreme Court?

In one other recent case, decided in February of 2017, a New York prison inmate, Raszell Reeder, sued New York prison authorities for guard brutality and deliberate failure to record that brutality and provide copy of records to him.   A judge from Franklin County Supreme Court, S. Peter Feldstein, dismissed the case from a pro se litigant before "protector of human rights" Eric Schneiderman - representing prison authorities in that case, naturally - even had a chance to answer that lawsuit.

Because, in Judge Feldstein's opinion, the case was so badly drafted that it was an injustice to subject attorney Schneiderman to necessity to read it.  So Judge Feldstein obliged - and dismissed the complaint.  And told the likely illiterate complainant that, since it is the 16th of his complaint, he was supposed to know the law better by that time.  

So, see, LEGAL KNOWLEDGE in New York is presumed since February of this years, courtesy of Judge Feldstein - even in an illiterate person - simply because he had a lot of practice of filing.

The "fake attorney" had an even more practice in law, he was accused of not doing enough in 23 cases out of 400 that he handled, and even those accusations could come as "buyers' remorse" - because some consumers cannot resist an offer of a freebie, and obviously, the New York AG made such an offer - you "expose" a "fake attorney" - we return, through restitution in criminal proceedings, what you paid, even if you received great value in services for your money.

So, here is the deal.

If you are a poor inmate, here is what the government does to you:

• It can subject you to all kinds of violations of your rights, including beating up (like in the case of Raszell Reeder); or sexual assaults (including forcing you to dance naked on the table to jeering of correction officers and inmates), or religious discrimination;
• it creates tricks like having the guards beat you up off the reach of security cameras - and then putting you in solitary confinement as if you beat the guards instead, I've read many, many such cases during my internship and then volunteering for Prisoners Legal Services of New York;
• it blocks you, through attorney regulation, from choosing a representative in court or before administrative authorities who are not a licensed attorney - like the "fake attorney" Schneiderman proudly "caught" and had convicted in New York, and as it was done in the Townsend case - where Schneiderman was also representing the OPPONENTS of the consumer, not the consumer;
• it makes, through regulation requiring super-expensive education, attorney representation so expensive that attorneys are not interested in representing the inmate;
• it ignores constitutional prohibition on regulation of nonlawyer representation for poor inmates - established through Johnson v Avery 48 years ago;
• it establishes through federal law, Prisoner Reform Litigation Act, 28 USC 1915, the right of the government to dismiss lawsuits if inmates did not "exhaust administrative remedies" before suing;
• it allowed states to invent super-short statutes of limitation for such exhaustion - under 15 days in general and from 2 to 5 days in 9 states to file the first grievance - and, while filing it, to choose between your right for access to court and your personal safety (see footnote 14 in Justice Stevens' dissenting opinion);
• it disregards inmate's rights to the point of executing inmates despite evidence of their potential innocence that the courts do not want o explore - claiming that inmates "failed to raise" that question earlier, even when inmates were illiterate or lacked legal education;

and, if you find a person who - even though he does not have a law license - represents you where nobody else does - 

• the government either blocks that person from representing you - as the government did in the case of Cory Townsend, before that representation began, or
• convicts him of a crime of HELP to you - while immediately utilizing the conviction to help ITSELF in undoing the results of your provider's successful appeals, like Schneiderman is doing now.

By the way - do you know what the State of New York, represented by the New York State Attorney General Eric Schneiderman, answered the American Bar Association in 2015, in answer to the question if New York has a definitions of the practice of law and unauthorized practice of law?

No - and no.

But, if New York does not have a definition for the MAIN ELEMENT OF THE CRIME of unauthorized practice of law, it may not enforce that crime - because:

not only such a definition is constitutionally required to exist at the time of conduct that the government seeks to prosecute,  so criminal charges are JURISDICTIONALLY DEFECTIVE where the main element of the charge is - admittedly by the government - not defined,

such charges certainly cannot be proven at all, and especially beyond the reasonable doubt, as it is required in criminal cases.

So, New York, under pretenses of "helping the public", and unlawfully fabricating a criminal proceeding in the situation where the conduct was:

1. constitutionally protected - Johnson v Avery; and
2. where New York did not have a right to prosecute because it admitted that there is no definition of the main element of the crime of "unauthorized practice of law";

removed from the reach of consumers the person who was actually helping them, put him in jail, created a criminal record against him, and ordered him to return money for services he already provided.

After that, the state of New York proceeded "reviewing appeals" of the now-convicted "phony" attorney, while claiming, of course, that no cases that he appealed were approved for parole. 

First, I do not believe one word coming out of the mouth of New York prison authorities - who install security cameras in such ways that guards can beat inmates inside their cells or while putting them into their cells - and then claim that never happened, like the government did in Raszell Reeder's and multiple other cases. 

Second, if one judges whether a legal provider of appeals, and especially, administrative appeals (where the appeal goes to the same people who denied relief initially in the first place) is a good one or a bad one by his success rate, then all appellate attorneys are bad - because all appellate attorneys lose appeals, where, by policy of courts, majority of cases, and especially of criminal cases, are affirmed on appeal, and the same is true for administrative agencies who would not overturn their own decisions.

Moreover, an appeal - whether won or lost - constitutes an important procedural step, entitling the inmate to further legal relief, and the "fake attorney" was securing that step for his clients.

When will the public finally see the fraud against itself - all right - BY THE GOVERNMENT - in instituting and maintaining regulation and criminal prosecution of providers of services of consumers' choice, especially when such providers oppose that same government in litigation and provide good-quality services?

Your opponent in litigation knows better than you who YOU must choose a provider to fight that government - or else you can proceed pro se?

Like Raszell Reeder.

And have your case dismissed.

And have yourself branded as a "vexatious frivolous litigant".

And have ALL access to court blocked for you, as federal courts do under 28 USC 1915 for inmates complaining of guard brutality, sexual assault, lack of medical care and other human rights violations.

After all, when the government hurts you by stripping you of your right of choice of legal representation - and through the licensing restriction when you cannot afford a licensed attorney - of your right to be represented at all - the government actually helps you.

Schneierman said that, he is a known fighter for human rights - you saw above links about him OPPOSING civil rights lawsuits on behalf of civil rights perpetrators.

One might start believing in such "help". 

After a lobotomy, of course.

But not before.

On lifelong supervision, harassment and privacy exposure of critics of judicial corruption, as compared to attorneys-pedophiles - dear State of New York, my addresses are none of your business, especially since you give away private attorney information to pedophiles, stalkers and kidnappers of children

As I mentioned in my previous blog, November 13, 2017 marked an anniversary, 2 years since I was suspended from the practice of law for failure to express remorse for not committing a crime and for doing my duty for my clients.

The time of the 2-year suspension should be up, shouldn't it?

No, don't be so fast.

First, the order of suspension does not included an automatic reinstatement.

Second, a month after I was suspended, New York quickly changed its rules on me and now requires me, to be reinstated, to retake the bar, ethical courses, ethical exam, in addition to the necessity to prove my rehabilitation from misconduct of not committing a crime and doing my duty by my clients - by clear and convincing evidence.

Why suspension, why not disbarment?

First, New York can still proceed to extort money from me, $375 every two years in licensing fees.

Second, New York wants to monitor where I live for as long as I live - by its "rules" for suspended attorneys.

Well, since I am not practicing law, and New York effectively took my license, I do not believe I owe New York - or the public - any "right" to know any of my addresses, mailing or home.

With that in mind, I went to my attorney registration information, online, and changed it - from what it was, to "none of your business".

I was patiently waiting for the system to change the previous information to the updated one.

It did not happen.

Today, New York attorney registration website still shows this:

Well, I am not proud, I can do it again.

And I did.

Here is the information on my side of the New York State Attorney Registration website after I put it in, but before I submitted it today:

And here it how it looks after I clicked the "Submit" button:

And here is the receipt that the State of New York generated for me for submission of that information:

The listing is "out of USA" because that was the only way allowing me, on the form, to erase all information.

Where I am in reality is - see above - none of the State of New York's business.

By the way, New York does not insist on following its own registration rules as to other attorneys.

I wrote on my blog, regularly, that various attorneys failed to update their registration information (see, for example, one of them), or

to post either their mailing, or their home address, as required by New York rules - and nothing is happening to them.

Several shining examples:

Shining example # 1.  Bryan Hedges, taken off the bench in 2012, 5 years ago, for sexual abuse of his then-5 year old deaf-mute niece.

Note that no mailing or home address is listed.

Note that there is "no record of public discipline", even though Hedges was taken off the bench for sexual molestation of a minor.

Note that Hedges was not disbarred or suspended - not for his misconduct for which he was taken off the bench, not for failure to comply with registration rules.

By the way, compare attorney disciplinary history (or, rather, lack thereof), of

• Bryan Hedges - none; of
• Sol Wachtler, former New York Chief Justice, disbarred in 1993 for sex-related stalking and extortion where evidence of sexual misconduct against a child was submitted to the court (, but not charged with sex crimes (in federal or state courts), served time in federal prison, but reinstated in 2007 and teaches law at Touro School of Law who acknowledged to a journalist who wrote a book about him the following:

"“You expected me to give you everything I’ve collected and learned for $ 20,000?” he wrote. “Are you stupid or do you think I’m stupid? I may be a shitkicker but I’m not a dumb shitkicker.”

"It took me a year and over 1,000 miles in a rented car going between the Big Apple and New Jersey. I spent days in flea bag motels, and a hundred hours parked in New York City watching your comings and goings. I made over 100 phone calls to track you and make a record of your habits. I got into Val’s house on Rosewood Lane, and spent over three days parked in front of the Sutter house waiting for the two of you to be there alone during the day because you didn’t leave on enough lights at night when you were screwing. And then I had to rig up a remote camera in the house because I couldn’t take pictures from the outside because you kept the fucking blinds drawn. And I had to wait until you came back without the kids."

"I had to buy expensive recording equipment. And climb through backyards to tape you at your house (When I was at Rosewood a jogger questioned me— when I was in your backyard one of your gardeners spoke to me— I had to con my way out of both situations). I spent over ten days on Long Island living like a hobo. I think that’s what got my diabetes kicked up (I was out of commission for most of June and July. I guess you thought I was out of business.) I had to buy expensive bug transmitters and bribe my way into your boyfriend’s apartment. I was there twice (once the cleaning lady Maria caught me coming out but I conned her too). I got great audio. Your boyfriend has a good sense of humor but he also has a lot of gas. (You saw me once when you were waiting in the lobby, but you were too busy looking in the mirror). I went to your hotel twice (I couldn’t get into your room but one of your doormans [sic] brought me into your lobby and was going to let me talk to your young lady— as he called her). I left notes for you on both my visits and tipped your doormans [sic] pretty good. I told Ramon that I was going to be walking Jessica home from school afternoons when she got back and when he noticed I had no teeth and a big gut (water from the diabetes), I promised I’d have false teeth and would lose the gut so as not to embarrass her. Do you think I went through all of this for a shitty $ 20,000? I saw how and where you shopped. $ 20,000 is loose change to you. When I need more, I’ll be back, if I don’t croak. At least your $ 20,000 bought you some quiet. If I hadn’t got it, everyone you know and everyone your husband knows and every member of every board you belong to would have received wonderful material like this. And I would be going back on some future date with $ 200,000 or Jessica. You were smart to pay the $ 20,000."

Wolfe, Linda. Double Life: The Shattering Affair between Chief Judge Sol Wachtler and Socialite Joy Silverman (Kindle Locations 3390-3415). Open Road Media. Kindle Edition.

Wachtler, an attorney who was welcomed back to practice law and teach new lawyers, was involved in this behavior with a child - not only he threatened to kidnap a child, but he sent to his former girlfriend dirty postcards, like this:

"He would frighten Joy, he decided, Joy herself. He would make her think that Samson—or someone pretending to be Samson—was haunting her, sending her and her beloved Jessica dirty and scary messages through the mail. In mid-April, he began seeking out cards that would do the trick. Joy was at home when, one morning in late April, she opened her mail to find a belated birthday greeting. It was a card whose front panel bore a picture of a bear and the words “On your birthday, CUCUMBERS are better than men.” When she turned to the inside of the card, she saw a long commercially printed message, all in capital letters: THE AVERAGE CUCUMBER IS AT LEAST SIX INCHES LONG.—CUCUMBERS STAY HARD FOR A WEEK.—A CUCUMBER WON’T TELL YOU SIZE DOESN’T COUNT. —CUCUMBERS DON’T GET TOO EXCITED. —A CUCUMBER NEVER SUFFERS PERFORMANCE ANXIETY.—CUCUMBERS ARE EASY TO PICK UP.—YOU CAN EAT A CUCUMBER WHEN YOU FEEL LIKE. —A CUCUMBER DOESN’T CARE IF YOU’RE A VIRGIN.—A CUCUMBER WON’T ASK, AM I THE BEST? HOW WAS IT?—NO MATTER HOW OLD YOU ARE, YOU CAN ALWAYS GET A FRESH CUCUMBER.—A CUCUMBER WON’T POUT IF YOU HAVE A HEADACHE. —WITH A CUCUMBER YOU NEVER HAVE TO SAY YOU’RE SORRY.—A CUCUMBER WILL NEVER LEAVE YOU FOR ANOTHER WOMAN.—YOU ALWAYS KNOW WHERE YOUR CUCUMBER’S BEEN.—CUCUMBERS DON’T LEAVE YOU WONDERING FOR A MONTH.

Wolfe, Linda. Double Life: The Shattering Affair between Chief Judge Sol Wachtler and Socialite Joy Silverman (Kindle Locations 2697-2699). Open Road Media. Kindle Edition, 

and sent to the child herself a condom and the following postcard:

"This one was addressed to “Ms. Jesse Silverman”—her daughter Jessica?—and showed a buxom woman reaching into her refrigerator for a soda can. Inside were the words: 1. A DIET COLA IS SATISFYING ALL THE TIME. 2. YOU CAN DUMP A DIET COLA WHEN YOU’VE HAD ENOUGH. 3. IT GENERALLY LASTS LONGER. 4. IT’S AVAILABLE IN A VARIETY OF SIZES. 5. YOU ONLY NEED ONE. 6. DIET COLA COMES IN A CAN, NOT IN YOUR MOUTH. 7. WHEN YOU SWALLOW A DIET COLA, YOU ONLY GET 1 CALORIE. 8. A DIET COLA DOESN’T DIRTY YOUR SHEETS OR DISHES. 9. A DIET COLA WILL SILENTLY AND PATIENTLY WAIT FOR YOU. 10. YOU CAN IGNORE A DIET COLA FOR DAYS AND IT WILL STILL BE THERE WHEN YOU WANT IT. 11. A DIET COLA RESPECTS YOU AS MUCH AT NIGHT AS IT DOES IN THE MORNING. 12. WHEN YOU SWALLOW A DIET COLA, IT DOESN’T LEAVE AN AFTERTASTE IN YOUR MOUTH. 13. PEOPLE DON’T TALK IF YOU’VE HAD 3 OR 4 OF THEM. 14. NO PRIVACY IS NEEDED TO ENJOY ONE. 15. EVEN IF YOU SPILL ONE IN BED, IT WON’T MAKE YOU SLEEP IN A WET SPOT. 16. YOU CAN HAVE A HEADACHE AND ENJOY IT.

Wolfe, Linda. Double Life: The Shattering Affair between Chief Judge Sol Wachtler and Socialite Joy Silverman (Kindle Locations 2734-2740). Open Road Media. Kindle Edition.

And, Wachtler stole identity of his former girlfriend's new boyfriend, an attorney, and he forged that attorney's signature, and he used his position as the Chief Judge to get private information on that attorney from - guess who - the chief judge of the very department that refuses now my request to erase my personal information and put instead "none of your business as my address".

So, the Third Department, while pretending that attorney's information is private, will release that information to any "not dumb shitkicker" (Wachtler's self-characterization), criminal stalker, maniac and pedophile if he has enough power.

And I have a funny feeling that the whole reason why I was suspended by the Shining Example # 2, Carl F. Becker, was sexual in nature - because Becker could not get me, while he was bitterly jealous that my husband, Becker's law school classmate, a man of the same age as Becker, married a woman 16 years younger and had a son with her.  His pursuit of me was relentless and systematic. 

While he never made open advances, he always picked on me, in every single appearance before him (and I appeared before him every day in different courts where he was presiding), and he once called me out of the courtroom into his chambers demanding an explanation why I need an adjournment of the next proceeding, and breathing close on me, told me that "I do not look as good as I could".

I do not want my information to be given to the creep if he asks - and I know that it will be given if he asks - same as in Sol Wachtler's case, they will be unable to "say no" to a former judge.

So - pedophile Bryan Hedges got away with it and is an attorney in good standing, pedophile Sol Wachtler got away with it and is an attorney in good standing.

BUT:  the attorney who sued pedophile priests in New York - got suspended in 2008 for asking a biased judge to recuse - and was never reinstated.

See the policy a la "protect-pedophiles-bash-those-who-sue-pedophiles" of New York State Court Administration?

Shining example # 2.  Carl F. Becker, a retired judge who ran off the bench amid a:

• likely investigation by the Commission for Judicial Conduct (see annual report of the NYS Commission for Judicial Conduct for the year 2016 indicating that in 2015, 18 judges resigned during the pendency of the Commission's investigation - and Becker claimed he retired not because of health, but to be closer to his daughter, but then moped around the Delaware County courthouse for months, parked in a judicial parking space, used judicial license plates in violation of state law and even illegally sworn in a new judge, wearing a judicial robe - while not being a judge any more and not having any authority to swear in a New Judge); and
• investigation by New York State Comptroller and by the FBI of the Delaware County, which he represented for 27 years before coming to the bench, and with whose officials he was joined at the hip while working as a judge; Becker's flee "coincided" with a flee of several Delaware County officials before and after him - see my blog about one of the latest such flees, of the Delaware County Sheriff, and compare the retirement party in the courthouse of Delaware County (and court) Clerk Sharon O'Dell (during a felony police investigation against her by the now-retired Thomas Mills), with a recent retirement party of Delaware County pistol clerk Marilyn Olsen, reportedly at the Delhi Legion Field, outside of the courthouse.  New York Commission for Judicial Conduct refused to sanction judges Richard Northrup and Gary Rosa for throwing a party in the courthouse for a court employee with felony charges triable in their courts, but took notice of the complaint and started to hold retirement parties outside of the courthouse.  Praise the Lord for small gifts.

Note that Becker has a zero history of public discipline - which, of course, does not mean much in New York, where a child molester kept his license and also remains an "attorney in good standing" with no disciplinary history.

Looking at the "no record of public discipline" of these two and comparing it to mine, I feel honored.

At least, I am not a corrupt jerk and not a child molester - as my presence of public discipline demonstrates.

And, the shining example # 3.  Cesar Adrian Vargas, an illegal alien who was allowed by a New York court to be given a law license in New York in 2015, and who was actually given a law license in 2016.

Being in the country illegally and getting public benefits - medicine, public education at the high school, college and law school level - is not a character and fitness flaw that would prevent issuing of a law license in New York.

And, rules requiring attorneys to post either their mailing (business) address or home address are also not applicable to this individual (who was a DACA at the time the license was issued, but who knows what his status is today).

But wait - Vargas was admitted in February of 2016.

In April of that year New York "won" a case requiring out of state attorneys LICENSED in New York to have an in-state physical law office, which is not required for "resident attorneys".

You know why?

Because "resident attorneys" can be served on their home address.

Yet, New York does not practice what it preached to the federal court to obtain that discriminatory decision, and does not require any of "resident" New York attorneys to publicly post their home addresses for purposes of service - which made claims that attorneys may be served on home addresses, as a basis for discrimination against out of state attorneys licensed in New York meaningless - and fraudulent.

Instead, New York protects criminals or those who violate federal immigration law and targets with lifelong supervision - and danger of exposure of their private information to pedophiles-in-power like Wachtler - critics of rampant judicial misconduct in the state.

For the above reasons, State of New York, I insist.

An anniversary - of sorts. 2 years since the historical punishment of a person for not committing a crime and for failing to express remorse for that "misconduct"

On November 13, 2017 the United States of America had an interesting anniversary - but did not commemorate it for some reason.

The anniversary was - 2 years of the most extraordinary punishment in all of the history of the United States meted out to a person in general, and an attorney in particular.

Me.

The punishment was for NOT committing a crime.

For not committing a crime of unauthorized practice of law in September of 2008, and then in December of 2008, I was stripped of my law license and livelihood.

The very first - and most serious (alleged client neglect) charge in my petition, see my blog of more than 3 years ago - charged me for:

• not coming to a court-ordered deposition on behalf of two clients - (while omitting that the deposition that was held in September of 2008); and for
• not opposing a motion for  default judgment in the same case  (while omitting that the motion was made in December of 2008).

I was admitted to practice law on January 22, 2009. 

It was a task for a Kindergarten student who has just learned to read - compare the dates, see that an attorney who was admitted in January of 2009 could not possibly be an attorney of record in a case in September and then December of 2008.  READ the court documents on file before filing such charges - or prosecuting them wasting taxpayer money and taking time (and livelihood) from a busy and competent attorney.

Apparently, disciplinary prosecutors and judges on all levels in that disciplinary case failed that K-level reading test.

Coming to a deposition in September of 2008 on behalf of clients, and opposing a motion in December of 2008 on behalf of clients would have constituted for me 2 counts of a crime of unauthorized practice of law since at that time I did not have a law license.

The government may not DEMAND of a person to commit a crime of practicing law without a license as a condition of not being suspended from the practice of law in the future.  But that's exactly what New York demanded of me.

And no, this is not a bad joke, this actually happened in my case and is documented by me ad nauseam in all courts, and on this blog.

No, not committing a crime is not misconduct for anybody, including an attorney.

Yet, NOT committing those two crimes was charged against me as attorney misconduct.

And, after review of documents (transcript of the deposition bearing a date, court copy of a motion bearing a date), six courts:

1. New York Appellate Division 3rd Judicial Department;
2. New York Appellate Division 4th Judicial Department;
3. U.S. District Court for the Northern District of New York;
4. U.S. Court of Appeals for the 2nd Circuit;
5. New York State Court of Appeals;
6. U.S. Supreme Court

did not find any constitutional or legal problem with a setup when a person is punished by the government by stripping her of a right to earn a living in a chosen profession where I performed good and competent services for my clients, with a large portion of my services provided pro bono or for a reduced cost - and punished for NOT committing a crime.

Moreover, the New York State Appellate Division 4th Judicial Department found an aggravating circumstance in that I refused to admit misconduct and express remorse.

"In determining an appropriate sanction, we have considered that respondent has failed to acknowledge or express remorse for the misconduct."

Note that the decision on liability and on discipline was made on the same date.

Which means, procedurally, that I had to "acknowledge or express remorse" for what the court did not deem misconduct at that time yet.

If you read the decision on suspension, you will not find that Charge I Specification I - charging me with attorney misconduct for NOT committing two crimes - was not dismissed.

Which means that when the illiterate court granted to a summary judgment (a judgment stripping me of my right to a hearing) to illiterate disciplinary prosecutor Mary Gasparini - it did so on Charge I Specification I, too.

Let's reread what the court said - why it considered it necessary to take my law license for 2 years (meaning forever - because the court did it without automatic reinstatement, so, 2 years have passed, but the license was not returned):

""In determining an appropriate sanction, we have considered that respondent has failed to acknowledge or express remorse for the misconduct."

Charge I Specification I charged me for NOT committing a crime on two occasions.

I did not acknowledge misconduct for not committing a crime, and did not express remorse.

For that, I was stripped of my license.

The court, of course, threw in a couple of modest phrases about my supposedly "frivolous conduct", but did not want to actually disclose what that frivolous conduct was actually
making on behalf of my clients, in one case pro bono, motions to recuse the same biased and corrupt judge (who since ran from the bench during an investigation of himself and/or the County which he represented for 27 years and with which he was joined at the hip when he came to the bench by):

1. State Commission for Judicial Conduct;
2. State Comptroller;
3. the FBI.

As to the supposedly "frivolous conduct" as an aggravating circumstance for my suspension,

"We have additionally considered that the frivolous conduct at issue herein was not an isolated incident and involved a pattern of abuse of the legal process. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended for a period of two years."

I was not notified what it was, not by the disciplinary prosecutors, not by the court.  So - as to that mysterious frivolous conduct and "abuse of legal process" that was used as an aggravating circumstance to strip me of my law license, both the public and I are in the dark.  Just try obtaining evidence of that abuse from the 4th Department, my file is open.  You may be given what was not given to me - any documents claiming that anything will be used against me as an "aggravating circumstance" or proof of abuse of legal process.

By the way, there a process in the 4th Department to introduce such evidence - the only hearing that could be held was for me to introduce evidence of "mitigation", not for prosecution to introduce evidence of "aggravation".

So, apparently, the 4th Department introduced an innovation, for my sake alone - it not only

• punished me for not committing a crime, but also
• aggravated the punishment based on secret consideration of "pattern of abuse of legal process", while not caring to disclose to me what that pattern was - and acting as an advocate on behalf of the prosecution that never introduced any aggravating evidence of "abuse of legal process".

You know.

Punishment for "I will not tell you what I am punishing you for". 

That kind of thing.

Due process, you said?

For such a busy court?

New Yorkers, do you feel adequately protected from a criminal defense, Family Court and civil rights attorney who failed to acknowledge misconduct or express remorse for not committing a crime, and for doing her duty for her clients, securing for them, for free, their right to impartial judicial review?

I bet, you do.

In view of this anniversary, I congratulate New Yorkers and all of us, Americans, with the level of competency and integrity - and mental health - of our judiciary.

It is, truly, extraordinary.

New York acknowledges that the trial judge may not decide an appeal from his own decision - but abstains from calling judicial misconduct judicial misconduct.

On October 24, 2017, the top court of the State of New York acknowledged that there is a due process, constitutional, violation for a trial judge to review an appeal from his own trial decision.

From the decision of the New York Court of Appeals, I have learnt, with astonishment, that the New York Court system allegedly tries to "purge" judicial bias, and even appearance of such bias from its system.

To support that interesting contention, the court makes references to multiple rules.

==


"Because this is a constitutional matter, the People's argument that County Court committed no statutory violation misses the mark. In any case, while there currently exists no explicit statutory or constitutional provision in New York prohibiting judges from reviewing their own judgments on appeal,[FN1] our laws and court rules have long sought to purge actual bias and the possibility of bias from our courtrooms (see e.g. Judiciary Law § 14 ["A judge shall not [*4]sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which [the judge] has been attorney or counsel, or in which [the judge] is interested, or if . . . related by consanguinity or affinity to any party to the controversy within the sixth degree."]; 22 NYCRR 100.2 ["A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities[.]"]; 22 NYCRR 3[E][1] ["A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."]). Although there was no evidence of partiality here, due process must still safeguard the appearance of impartiality to promote public confidence in the courts."

==

The New York State Court of Appeals obviously forgot to mention, trying to keep face in an absolutely atrocious situation when a judge refused to recuse from reviewing an appeal from his own decision (which he had to do under both Judiciary Law 14 and 22 NYCRR 100.2 and 22 NYCRR 3(e)(1)) that all of these three authorities they cite to:

Judiciary Law 14;
22 NYCRR 100.2;
22 NYCRR 3 (e)(1) 

are stillborn provisions, because:

1. there is no mechanism of enforcement of these provisions in the State of New York but a motion to recuse;
2. the motion to recuse is reviewed by the same judge who is sought to be recused;
3. judges who are sought to be recused routinely punish attorneys and parties for making such motions;
4. attorneys are stripped of their law licenses for making such motions - see cases of John Aretakis in 2008, suspension for criticism of a judge in criminal proceedings, and of myself, suspension for criticism of a judge in motions to recuse in civil proceedings in 2015 - different methods were used in civil and criminal proceedings, but the result was the same, suspension of attorney's law licenses based on sanctions of a judge disgruntled by a motion to recuse,
5. despite mandatory language of all three of these rules ("shall", "shall not"), courts deem it within the "discretion" of the very judge whose recusal is sought to decide whether to recuse or not, after "searching his own conscience".
6. what constitutes the judge's "interest" in the case under Judiciary Law 14 is interpreted by judges in favor of judges in an extremely permissive way - you will never be able to prove a disqualifying "interest", no matter how common sense it would be;
7. as to disqualifying "consanguinity or affinity" "within the sixth degree" in accordance with Judiciary Law 14 - guess what, judges do not publish their family trees and do not make disclosures as to who they befriend, date, or sleep with, and many judges and their spouses have different last names, and I wonder why would that be but to make detection of such an association more difficult.

It is a good decision - but a very narrow decision.

It was decided on a very narrow issue, whether a judge deciding a case at the trial level without a jury may unilaterally decide an appeal from his own decision.

It is not clear whether the same would be permitted if it were a jury trial, and whether it would be permitted if the judge was not single judge deciding the appeal, but was a member of an appellate court panel.

Nor did the court reach the issue of the obvious judicial misconduct, when a judge failed to recuse when he saw his own signature on the verdict in the record on appeal.

Appeals are made on records, and there is no point arguing - as an attempt was made during oral arguments in the New York State Court of Appeals - that the judge in question had so many cases that he ostensibly "forgot" that he decided a particular case as a trial judge.

If he "forgot", that only means that he did not read the record on appeal where his name was on the bottom of the verdict.

What did not help is unsworn testimony of appellate attorney during oral argument where the attorney conceded points on behalf of their clients that the judge in question was "fair through and through" according to attorney's personal knowledge, see also that same statement in the official court webcast, here.

That allowed the Court of Appeals to skip the obvious issue of judicial misconduct and state that "there was no evidence of partiality here".

As I said before, an appellate attorney has no right to testify in an appellate oral argument, no right to add her personal experiences to the record, and no right to concede her client's major points (presence of actual bias, which was very likely in this particular case) because of her personal views, experiences, interests in keeping in the good graces of a judge, a former colleague, before whom she is bound to appear in the future in cases of other clients.

The judge in question, who is, quite "coincidentally", the particular defense attorney's former law school classmate and colleague, owes the defense attorney - she acted contrary to her client's best interests and saved his ass, which could otherwise have been grilled by the Court of Appeals, the Commission of Judicial Conduct.

This case is still a unique case.

For the first time the New York State Court of Appeals recognized - not in so many words though - that a judge HAD to recuse from a case on constitutional grounds.

Of course, there was no need to go into constitutional grounds here, it was a matter of common sense.

Does any person in their right mind order audit of a company by the same company?

Of an accountant by the same accountant?

Why, then, judges are "masters" of their own recusal?

Why do they get to decide whether they SHALL stay or go?  Why it is their whim - choice - "discretion" to decide?

Especially when, as the same New York State Court of Appeals suddenly acknowledged in People v Novak, 

What constitutes a "basic requirement of due process" is at the same time a DISCRETION (whim, choice) of the presiding judge who are challenged for actual bias or appearance of bias - or for misconduct - in a motion to recuse?

What kind of mangled mind should a person, much less a jurist, possess to arrive at that decision - and that's how New York courts ROUTINELY decide such issues.

Even in this case, the obvious issue of ACTUAL bias, of the judge SEEKING OUT the case which he decided on appeal and knowingly doing an audit of his own decision was simply skipped by the court, through a claim that "there is no evidence of partiality here" because of the appellate counsel's concession of that point.

Of course, the taste of the pudding in the eating.

We have a lot of beautiful precedents on the issue of judicial disqualification on due process grounds - all of which are usually rejected by courts, often with sanctions (as it was in my case when I quoted the same case, In Re Muchison, which the Court of Appeals cited to in People v Novak).

This one, most likely, will be no different.  It is a victory in one case, a victory on paper, legally a precedent, but I doubt that the judiciary will be any harder on itself than before, when the judiciary, while giving itself the gift of immunity for malicious and corrupt acts on the bench, also deemed itself a master of its own recusal, and where judges routinely allow themselves to "search their own consciences" in order to decide whether they are biased or corrupt or not.

Imagine if you get to decide - as a matter of law - if you are biased or corrupt.

What a joke.

I urge my readers to send me examples of citations to and enforcement of this case, People v Novak, and of constitutional principles of recusal it announced.

I will publish your examples and comment on them.

Stay tuned.