"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, February 9, 2019

#TheCrimeOfBeingNamedMelania. How to steal a lucrative business from an immigrant with the help of a New York court. A tutorial. Part II. The politics of motions to withdraw in Judge John F. Lambert's court

I have written in my previous blog about the disbarment-level misconduct of attorneys David Merzig (City of Oneonta, NY), Mark Oursler (law clerk for Judge John F. Lambert) and of Judge Lambert himself, without whose approval Mark Oursler will not even sneeze:

This is Part II of the blog series dedicated to the Pervu case.

Part I, #TheCrimeOfBeingNamedMelania. How to steal a lucrative business from an immigrant with the help of a New York court. A tutorial, 

can be read here.

Fixing a court case is a federal crime.

Tampering with witnesses and hiding evidence of such a crime are yet additional crimes.

And, there is documentary evidence of tampering and hiding evidence by Judge Lambert.

The "Thursday" meant in the screenshot above is January 24, 2019.

As of that date, Judge John F. Lambert had to recuse himself - because he started to act in the case (if he didn't before) as an advocate for a party, TEACHING, through his law clerk, one of the litigants, the City of Oneonta,

  • What to do in the case, and 
  • How exactly to do it.

That is "practice of law", prohibited to the Supreme Court judges in New York by the State Constitution, not to mention that giving such legal advice to a party requires an immediate recusal and discipline imposed upon a judge.

But, of course, Melania and Nicolae Pervu's attorneys - one of them a town justice and a law professor - did not bring a motion to recuse Judge Lambert, as they were required by law in order to preserve evidence of the judge's bias for appeal, even after TWO publications describing what Mark Oursler did - thus committing an act of malpractice for which, I hope, the Pervus should sue the hell out of them.

Instead, 5 days after that legal advice was given, AND PUBLICIZED, Melania and Nicolae Pervu's attorneys brought a motion to withdraw from the case IN FRONT of the judge THEY KNEW was working for the opposing party AS AN ADVOCATE, to allow them to withdraw from the case and to leave their clients unprotected from the onslaught by the City of Oneonta, advised by Judge Lambert's law clerk to file yet another contempt proceedings against them, just 5 days prior, and teaching the City of Oneonta how exactly to do it.

I have got my grubby hands on an that document, the application for an Order to Show Cause of Melania and Nicolae Pervu's now-former attorneys requesting permission of Judge John F. Lambert for them to withdraw from representation of Melania and Nicolae Pervu.

What makes me so excited is that it lists, quite frankly, what was happening in the case since its start, and the "achievements" of the attorneys - and asks the court to seal the document, for Melania and Nicolae Pervu's benefit, of course.

Their benefit, right.

Of course, Judge Lambert did not ask the supposed beneficiaries of sealing this document, Melania and Nicolae Pervu, whether they want to have this document sealed or not.

I did.

They do not want to.  They want it public.  And their opinion is the only one that matters in this case - especially since 

the City of Oneonta, its attorney David Merzig, in OPEN COLLUSION with Judge Lambert, and knowing that Melania and Nicolae Pervu can no longer afford counsel, is pushing, with Judge Lambert's law clerk's help not just to dishonor and bankrupt the Pervus, but to put them in jail "for contempt of court". 

Before I start analyzing this exciting document and the wealth of information it offers - in the next blog article to come - here are some politics of this particular presiding judge, specifically on motions to withdraw, that I know of, and certain other interesting points regarding Judge Lambert's decisions on representation in this case.

I.  New York law does violate the 13th Amendment in not allowing attorneys to leave a case on their own if the client does not pay

There is a rule of slavery regarding attorney's work, 13th Amendment prohibiting slavery and forced labor be damned:

CPLR 321 forbids an attorney, once he entered the case, to withdraw from the case even if the client does not pay.

The attorney may do that only if 

  • the client agrees to the attorney withdrawing from the case, giving the client's notarized consent, or
  • if the judge allows such a withdrawal.

Instead, New York makes permission to withdraw because of the breach of contract/nonpayment of fees, or remain enslaved by a nonpaying client, a matter of judicial "discretion"/ whim.

I will later show that, in this particular case, Melania and Nicolae Pervu not allowing their attorneys to leave their case was not a matter of enslavement, but was a matter of demand to deliver services already OVER-paid for.

II.  The Acting Supreme Court Justice John F. Lambert has a personal history of NOT allowing attorneys to withdraw in the case of a nonpaying client that had extensive resources to pay, and to make attorneys work for free

For example, Judge John F. Lambert forced me personally to conduct a whole trial on behalf of a non-paying client in a divorce case, after being presented evidence that the client has just outfitted a bed-and-breakfast in Stamford, New York, for 16 (!) rooms, but refuses to pay me.

And, Melania Pervu, as far as I understand, has paid the law firm $16,000 and is owing them, at their claim, $21,000 more - for 4 appearances in court, waiving her rights and screwing up her case before withdrawing.

Not to mention that, as far as I know, the law firm did not give their file back to Melania yet, and did not notify her of her right to arbitrate their outrageous fees, 

as the law requires them to do and as is part of their attorney-client agreement.

Note that the law firm of the Honorable Ryan T. Donovan,

who represented Melania and Nicolae Pervu until they sucked them dry on litigation (and, consequently, the Pervus did not have any money left for improvements required of them by the City of Oneonta, conveniently) and charged Melania and Nicolae Pervu $300 per hour for his valuable time, including travel to Cooperstown where the court is, and back to his office at 50 State Street, 2nd Floor, Albany, NY 12207:

  • did not guarantee a "favorable result" (which is, yes, part of attorney disciplinary rules, but may be used conveniently to take money and do nothing - or sell out the client, which is what was done here, as I will start showing in this article), and
  • is charging its non-paying clients an interest of 2% PER MONTH, or 12% per year - which, in New York is just a split hair short of usury.

Convenient, isn't it.

We will screw you at your own - big - expense.

III.  A judge does not have to sign applications for an order to show cause - he has a discretion to refuse to sign those.

Local judges, including Judge John F. Lambert did that to me multiple times, including regarding motions to withdraw.

You apply for an Order to Show cause, pay a motion fee, and then - silence.  When you ask the clerk, what is happening, the clerk tells you - the judge refused to sign the Show Cause Order, he does not have to.

So - here, Judge John F. Lambert did not have to sign the Order to Show Cause on Melania and Nicolae Pervu's now-former attorneys' motion to withdraw.

But, he did.

Note the timing of response.

Judge Lambert orders 
  • attorneys for Melania and Nicolae Pervu (who are immigrants and non-attorneys, thus who may be not only non-sophisticated in the law, but who may have English language difficulties) to serve Melania and Nicolae Pervu, by personal service, by February 1, 2019.

And, Judge Lambert orders Melania and Nicolae Pervu to respond to this motion, pro se, on their own behalf, within 4 (FOUR!) days.

While the very minimum that is usually provided to people to respond to motions, under the CPLR 2214, and that is - including for people represented by counsel, is 8 days (twice more), and Judge Lambert, having been an attorney for 20 years

knew very well what exactly he was doing to the Pervus.

And, knowing what he was doing, he sealed this document under the rule 22 NYCRR 216.1

Section 216.1 Sealing of court records.
(a) Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard.

There is no written finding of good cause there.

There is no indication of what "statute or rule" was used by Judge Lambert as a ground to seal this document without a hearing.

If that is done to protect rights of Melania and Nicolae Pervu, their rights are better served by SHOWING this document to the public, not by hiding it.

The only people who are protected by the unlawful sealing of this document is Judge Lambert himself and the attorneys for Melania and Nicolae Pervu who wanted to conceal how exactly they have sold out their clients and how badly incompetent and dishonest their so-called (expensive) "services" were.

And, under the 1st Amendment jurisprudence
  • court proceedings in New York, especially 
  • court proceedings started by a public entity, the City of Oneonta, against a citizen and business owner, especially an immigrant business owner, and especially 
  • court proceedings where 
    • one public entity (the City of Oneonta) asks 
    • another public entity (the Court) to put these same business owners in jail for contempt of court, into the jail 
    • governed by yet another public entity involved in the whole mess, the Otsego County (Sheriff's Department) - and attorneys withdrawing out of CONTEMPT PROCEEDINGS,
such proceedings are PRESUMED open to the public.

Not to mention problem # IV:

Judge Lambert, 
  • having accepted, on January 29, 2019, claims of Melania and Nicolae Pervu's attorneys that Melania and Nicolae Pervu can no longer pay their attorney fees
  • having accepted earlier, on January 24, 2019, through his law clerk Mark Oursler,  the claims by the City of Oneonta that Melania and Nicolae are allegedly non-compliant with making the required improvements to supposedly bring the building up to code,
  • and having taught the City of Oneonta, through his law clerk Mark Oursler, HOW EXACTLY to file for contempt of court against Melania and Nicolae Pervu 

Judge Lambert, an attorney of 20 years and a judge of 10 years, allows Melania and Nicolae Pervu's attorneys, after having received, reportedly, 16 thousand dollars and having appeared in court for that money 4 (four) times total, without doing discovery, motions or trials and claiming they are "owed" 21 thousand dollars more - 

  • ALLOWS the motion to withdraw to proceed;
  • ALLOWS attorneys who still owe Melania and Nicolae Pervu services paid and overpaid for, out of the case;
  • SEALS the records of his shameful conduct - without following constitutionally required procedure of how to seal it; 

reportedly, Lambert did not even so much as ASK Melania and Nicolae Pervu whether they can afford an attorney to address the contempt proceedings that his own law clerk taught the City of Oneonta how to bring against them.

Knowing very well that he, Judge John F. Lambert, 
  • ABSOLUTELY MUST make such an inquiry in a case of contempt proceedings, and 
  • ABSOLUTELY MUST advise litigants facing contempt proceedings of their RIGHT to FREE COUNSEL, and
  • ABSOLUTELY MUST review their application for that purpose, 
  • ABSOLUTELY MUST assign counsel to them if they qualify - and, according to what I have heard, they do, and
  • ABSOLUTELY MUST give that counsel proper time to prepare for the contempt hearing, and
  • provide an EVIDENTIARY HEARING - 
  • with witnesses, the City of Oneonta having the burden of proof by clear and convincing evidence, having to actually 
    • PROVING BY CLEAR AND CONVINCING EVIDENCE that Melania and Nicolae Pervu supposedly 
      • intentionally, 
      • while HAVING MONEY to pay for the changes required by the City of Oneonta (because punishing people for not having money to carry out a court order is unconstitutional in the United States), 
  • violated 
  • a LEGALLY VALID court order.

Not the way Judge Lambert (and the previous judge, Coccoma) are deciding this case - through "conferences in chambers", off record, without any testimony of any witnesses.

And, there will be a problem proving that

* there was a LEGAL order - see my next articles; that
* there is a violation of that order, and that
* the violation, if it happened, was intentional, not based on lack of money.

And, by the way, the assigned counsel, in order not to commit his or her own malpractice and in order to preserve the issue of gross judicial bias and misconduct for appeal, should start representation of Melania and Nicolae Pervu, with a motion to recuse Judge Lambert - if Judge Lambert does not have the good grace to run from this case himself a.s.a.p.

Instead of doing all of that, Judge Lambert told Melania and Nicolae Pervu, reportedly, to go "FIND" an attorney for themselves.

Nice guy, isn't he?

Lambert should be taken off the bench for this - and Oursler disbarred, and both jailed.

Lambert, on a more practical plane, MUST recuse from this case, given his law clerk's role de facto practicing law and teaching the City of Oneonta when, how and in what way to conduct litigation against the now unrepresented two immigrant respondents.

And, the new judge MUST at least INQUIRE whether Melania and Nicolae Pervu are entitled to an ASSIGNED COUNSEL, for God's sake.

Because if you want at least to pretend to follow the so-called "Rule of Law", try at least to not openly acknowledge corruption - while then sealing documents documenting that corruption and intimidating witnesses with jail time through contempt of court disclosing that document.

Because, remember,

*  fixing court cases,
* theft of honest services of judges,
* tampering and intimidation of witnesses, and
* hiding evidence of court-fixing pertaining to the presumed-open court proceedings


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