"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.

Friday, February 15, 2019

New York disbars an attorney for misconduct as a judge? For something that ALL judges do routinely? What really happened in #AlanSimon's case? Whose path did he cross?

This is a long story of double standards in how judges are or are not taken off the bench in the glorious State of New York, and are or are not disciplined for misconduct as judges and as attorneys, so, please, bear with me.

A couple of days ago New York State disbarred an attorney, Alan Simon, for misconduct that he committed as a judge, and was taken off the bench for this misconduct.

The disbarment of Alan Simon is actually a spectacular thing that happened - because, as a sneak preview, he was taken off the bench and disbarred for what many, if not all other judges in New York State, at all levels, routinely do in court, and the punishment usually falls on the opposite side, on those who dare to criticize and expose them, in and out of court.

Let's look at those double-standards.

Under the canons of constitutional jurisprudence of the U.S. Supreme Court, regulation of the "practice of law" is unconstitutional.

For 2 reasons.

  1. The law, to be constitutional, must have a clear prior (before the conduct happened) statutory definition - and what the hell "the practice of law" is, nobody knows.  In New York, "the practice of law" is also not clearly defined by statute - but is vigorously regulated and used as a sword against attorneys criticizing the courts anyway.
  2. Remember the standard of proof in criminal proceedings - beyond the reasonable doubt?  Violations of the regulation of the "practice of law" are prosecuted in the U.S., the State of New York included, through criminal proceedings, for 
    1. "unauthorized practice of law", and for
    2. criminal contempt of court.
In both of these cases, the "practice of law" is the main element of the crimes - so, that element must have not just a clear prior statutory definition, but a clear prior statutory definition that would be cler beyond the reasonable doubt of a non-lawyer juror of average education and intelligence, from the cross-section of the community.

Do we have that definition anywhere in the United States, including the glorious and now "democratic" and "pro human rights" State of New York?

Of course, not.

So, has the regulation of the practice of law declared unconstitutional by court on these simple grounds, and based on the supposedly mandatory and binding precedents of the U.S. Supreme Court - I pointed out a lot of them in my recent 3.5 page article that suddenly attracted interest from law professors from across the world and jumped to the top 4% of articles read on

Of course, not.

Because who regulates the "practice of law" - unconstitutionally?

Right, courts do.

And who is supposed to declare that regulation unconstitutional?

Well, the courts are supposed to.

And will courts declare what they themselves do, and what gives them power over access to court of all Americans, as well as over financially powerful attorneys (who finance judicial election campaigns), and over financially and politically non-powerful attorneys who may sue judges for civil rights violations, and over powerful prosecutors who may bring criminal charges against judges violating people's civil rights and committing, thus, federal crimes - through unconstitutional regulation of the "practice of law"?

Well, they may be corrupt crooks, but they are definitely not idiots and will not upset their own apple cart.

So, the unconstitutional regulation of the "practice of law" continues.

And is used as a sword against attorneys criticizing judges, representing the poor and bringing civil rights lawsuits against the government, including judges - the unforgivable "abuse of legal process", in judges' opinion.

In 2008, a New York suspended attorney John Aretakis, the first attorney who sued Catholic priests for sexual abuse of children, on behalf of those children.  For making a motion to recuse a judge - and criticizing the judge in that motion for corruption.  The judge sanctioned John Aretakis, in a criminal proceedings for "frivolous conduct", the court-created rule not applicable to criminal proceedings.  The Appellate Division 3rd Department, instead of reversing and dismissing proceedings against John Aretakis, reversed and REMANDED them to the same judge, with instructions to the judge how to sanction John Aretakis in a way that will stick on appeal.  The offended judge did as he was instructed, sanctioned John Aretakis, on remand, for "contempt of court" (remember - for making the same motion to recuse?).

Then, the 3rd Department, wearing 3 hats at once, of 
  • a legislator of attorney "ethical"/disciplinary rules in (unconstitutional) regulation of "the practice of law", see above, 
  • an investigator/prosecutor (and also an "arm of the court", imagine a prosecutors and investigators being PARTS and ARMS of the court - an immediate disqualification for both sides, but this kind of thing continues across the U.S. in attorney disciplinary proceedings for 100+ years); and
  • of adjudicating court
suspended John Aretakis's license, for 1 year, that was 11 years ago, and John Aretakis is still without a license - because the court did not provide in its decision for an automatic reinstatement after 1 year, but John Aretakis has to humbly beg the court to return the license that was unconstitutionally revoked in the first place, in a regulation that is unconstitutional in the first place.

And John Aretakis did not beg.  So, he remains without a license.

While, this week, the revolutionary New York Legislature finally gave victims of sexual child abuse at the hands of Catholic priests the extension (not full repeal, mind) of the shameful statute of limitations that prevented John Aretakis to fully sue the bastards on behalf of the children.

But, among celebrations of the legislation, I do not see the name of John Aretakis mentioned. Because he is, you know, a suspended attorney, and recognizing that the suspension was as shameful as the statute of limitations upon his clients, is "not done" in New York.

By the way, John Aretakis was suspended without a hearing, just on the basis of the contempt of court sanction imposed upon him by the judge who was in that proceeding 

  • the initiator/party;
  • the alleged victim;
  • the unsworn witness;
  • the investigator;
  • the prosecutor;
  • the judge and the jury -
all in one.

In 2015, New York suspended the law license of another attorney, me, for 2 years, also without automatic reinstatement, also without a hearing, also based on sanctions imposed by the "offended" (corrupt) judge, also based on a motion to recuse the judge to which the judge reacted by instituting a "frivolous conduct" proceeding, based on a judge-made "rule of frivolous conduct", which is as vague (and as unconstitutional) as regulation of "the practice of law" is, and where the judge acted, like in John Aretakis' case, as

  • the initiator/party;
  • the alleged victim;
  • the unsworn witness;
  • the investigator;
  • the prosecutor;
  • the judge and the jury -
and then, the licensing court acted, behind closed doors, as

  • a legislator of the substantive and procedural rules;
  • the investigator and prosecutor; and
  • the adjudicator.
Of course, the result in such "court proceedings" is obviously pre-judged, so many attorneys do not even bother litigating, they just surrender their law licenses once they see they are targeted and move on with their lives, what's left of them.

"Coincidentally", I was an attorney who, in a poor rural mountain area, was THE ONLY lawyer who combined litigation in state criminal, civil (consumer debt, foreclosure), Family and federal civil rights courts, and sued local government officials, including social services and judges - who other attorneys, including the revolutionary ACLU and NYCLU, refused to touch with a 10-foot pole.

Well, now there is nobody to do that for the indigent in that poor area, as far as people keep telling me - but, what can I do?

In 2018, New York suspended, for 2 months only (but before judicial elections), the law license of yet another attorney, Gino Giorgini, for criticism of a corrupt judge in a motion to recuse.

That the judge was corrupt was confirmed by:

  • a series of newspaper articles about the judge's fixing cases through handing out lucrative assignments to friends and friends of friends (rich and politically powerful, of course);
  • New York State court system having to change the rules of assignment because of the judge misconduct;
  • New York Commission for Judicial Conduct NOT booting the judge in question off the bench only because "he did not know" that what he did was unlawful - because supposedly it was not discernable from the rules of assignment that it is bad for a judge to be partial and play into the hands of friends and financial sponsors; and by
  • the New York State Court of Appeals that reversed the judge's most corrupt decision.
That did not save Gino Giorgini's law license, though.

He was still suspended, and was told in the order of suspension that he is not allowed by disciplinary rules to criticize the judge's political corruption, in those words.

That said, there was one sacred cow for judges that was untouchable in attorney disciplinary proceedings.

That sacred cow was - judges themselves.

And, even though the suspension was only for 2 months, and "stayed", Gino Giorgini remains suspended as of today:

For example, 

1. an East Greenbush village part-time justice (and an employee of the Chief Administrative Judge for upstate New York Michael V. Coccoma), Diane L. Schilling, who was (and still is) and attorney was taken off the bench for trying to fix a traffic ticket for another judge's wife - but nobody touched her law license, and she continues to practice with "no record of public discipline".

Beautiful woman, isn't she?  Judge Coccoma has a good taste in female beauty in picking - and protecting - his employees.


2.  A Family Court judge, who was also an attorney, Bryan Hedges, was taken off the bench for sexual molestation of his 5-year-old deaf-mute niece - but his law license remains intact, and he has "no record of public discipline", too.


3. A New York State Supreme Court Justice Christina Ryba, just before her day of election as a judge, was booted from her job of "special counsel" of (gasp!) the attorney licensing court, the Chief Judge of this court, for dishonest and unethical behavior - for using her position and the court system to circulate e-mails just before the election day in order to impress voters that she had support of the court system.

In other words, she has gotten herself elected by fraud.

She was not disbarred - after being fired BY AN ATTORNEY LICENSING COURT, FOR A BIG ETHICAL VIOLATION.

Instead, she was sworn in, 

my request to the New York State Commission for Judicial Conduct to take her off the bench as elected by fraud was denied - the Commission did not see any judicial misconduct in the situation.

And, she now "serves" as a Supreme Court Justice, with the truncated word "Honorable" as part of her job title, no less:

has "no record of public discipline", and - lo and behold - 

is on the Board of Trustees of the Albany Law School.

Imagine, you can only be trusted with funds of a non-profit forging (pun intended) the new lawyers of America if you have a record of fraudulent behavior, right?

And, after the former New York State Chief Judge Jonathan Lippman has publicly announced that the statute making it a crime to videotape OPEN court proceedings in New York is shameful and should be abolished, and despite the fact that now New York has a Democratic majority in the Legislature baking statutes left and right as pancakes, that statute - as well as the statute protecting records of police misconduct from public access - remains on the books and there is no indication that the "revolutionary" Legislature is going to repeal it any time soon.

Not to mention that, on top of that statute, the New York State court administration invented a rule,  court rule 22 NYCRR 29.1(a), prohibiting also AUDIO-recording (allowed by New York Penal Law without requesting consent of those recorded, as long as the person recording the conversation secretly is a party in it) - ANYWHERE in the courthouse, and here is how that rule is used in criminal proceedings.



1. Judges do not want to be booted off the bench after being caught on tape or on the audio recording in doing what they are habitually doing - fixing cases, making incompetent and rude statements and harassing litigants and attorneys; and

2. Judges do not want to be reversed on appeal if video-recordings are made part of the record.  Now they are not part of the record, and appellate courts routinely "defer" to the decisions of trial judges because they saw demeanor of witnesses, and the appellate court doesn't.  Why? Because it prohibits to create the full record through criminal law.

For example, Judge Carl F. Becker behaved quite as Alan Simon, and worse, but it was me who was suspended from "practicing law", and not him booted off the bench for pointing out to the Commission for Judicial Conduct what he was doing.

And, the same happened to attorney Gino Giorgini.

And, the same happened to attorney John Aretakis.

With this background, now I am asking a question - what was the REAL reason why judge Alan Simon was taken off the bench and then disbarred for his conduct on the bench - for which NO OTHER JUDGES get taken off the bench, or disbarred?

I will attempt to give some insights into this curious situation in one of my next blogs.

Stay tuned.

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