"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.

Saturday, November 25, 2017

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.


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.

1 comment:

  1. Their actions indicate who they truly are and your actions prove your character.