THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:

"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.

Sunday, May 12, 2024

Is your own LICENSED New York State attorney, or your LICENSED opposing counsel, AUTHORIZED TO PRACTICE LAW in the State of New York?

 A stupid question, right?

Not so fast.

What I say next, I hate to say as a scholar on the issue of constitutionality of ANY attorney regulation, who believes that such regulation is totally and completely constitutional - and who believes that the law I am describing is unconstitutional, too, on many grounds.

What I do say though is that, since the law I am describing here is on the books in the State of New York, and so far has survived constitutional challenges in court and even an attempt to repeal the law through the New York State Legislature, people should be aware of this law to prevent the expense of having their attorney disqualified in the middle of a court proceeding.

It is statutory law in the State of New York, Judiciary Law Section 470, requiring that if an attorney licensed to practice law in the State of New York lives outside of the State of New York, that attorney MUST maintain a PHYSICAL OFFICE within the State of New York, and not a token office, but a real physical office meant for transacting law business.

As recently as in 2015 and 2016, a constitutional challenge to that law by a New Jersey attorney licensed in New York State was rejected by both the New York State Court of Appeals (Schoenefeld v State, 2015), and by the U.S. Court of Appeals for the 2nd Circuit (Schoenefeld v Schneiderman, 2016).

The lobby of the (rich suburban New Jersey) non-resident New York-licensed attorneys has then pushed through the New York State Legislature, through both Assembly and Senate, the repeal of Judiciary Law 470.

Yet, apparently, the lobby of the no less rich resident New York-licensed attorneys have gotten to Governor Hochul, and she has nixed (vetoed) the law that passed both the Assembly and the Senate, to the great indignation of the New York State Bar Association.

So, the bona fide physical office law is on the books, and nonresident attorneys licensed to practice law in the State of New York must abide by it.

Not abiding by it is a crime of misdemeanor in New York, unauthorized practice of law (UPL), punishable for one count of either drafting a document, or a court appearance, or filing something in court on behalf of a client while not being in compliance with the office requirement.

The kickers are though that 

(1) New York State official attorney directory does not list whether the attorney is a resident or a non-resident of the State of New York; and

(2) if you FOIL (file a Freedom of Information request with the NYS Court Administration) for the residential address of the attorney - because the office requirement of Judiciary Law 470 was justified by New York State law, CPLR 2103(b)(4), which allows to serve papers upon an attorney's residential address (home) within the State of New York, so a party to a lawsuit is entitled to know that address of the opposing counsel to be able to serve court papers there - such FOILs are routinely denied on a claim that unless you demonstrate "a particular need" for such an address, such an address is private.

So, short of hiring a private investigator to verify whether the attorney lives, or verifying that address by other legal means, you will certainly not learn from the court administration the deep secret - whether attorneys that the court administration itself LICENSES, but BARS from practicing law nevertheless unless they have a BONA FIDE PHYSICAL OFFICE within the State IF they DO NOT RESIDE in the State of New York, are in violation of that rule or not.

In other words, the New York State Court system deliberately prevents consumers from knowing whether the attorney they are hiring or opposing in court (unless the party knows the attorney locally and knows where he or she lives for certain) does or does not have authority (do not confuse it with a license, under Judiciary Law 470 a LICENSED attorney may not have AUTHORITY to practice law in the State of New York) to practice law.

If you hire such an attorney, he or she may not charge you any legal fee - and you may end up losing such an attorney when his or her lack of authority is revealed in court, because, as per CPLR 321(c ) such a lack of authority constitutes a legal "disability" of the lawyer requiring the court to stay (stop) anything the court is doing in a case and force the party who hired such a lawyer to hire somebody else - and that may be impossible in terms of money or other reasons.

If you oppose such an attorney, in addition to forcing the opposing party to replace that attorney with an attorney who has authority to practice law, you will need to deal with the aftermath of what that attorney has so far done against you in court, with agreement of the judge.

My personal opinion - which I do not impose upon anybody else, and this is certainly not a legal advice of any kind - is to stick to the text of the statutory law, CPLR 321(c ) that states:

"Death, removal or disability of attorney.  If an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs".

Moreover, in 2010, the New York State Court of Appeals has interpreted CPLR 321(c ) in the case Moray v Koven & Krause Esqs in 2010 by stating that 

(1) the stay imposed by disability of an attorney (including the legal disability) is AUTOMATIC and is imposed by operation of law as of the date of onset of the lawyer's disability, which is important, because imposition of an automatic stay does not require the party to engage in any motions and to ask the court for any permissions - the party simply informs the court of the lawyer's disability and the date of its onset, and the court is STOPPED BY LAW from proceeding any further; and

(2) violation of the rule of stay, CPLR 321(c ) is to be addressed by a motion to vacate - so the Court of Appeals has given parties a direct prompt as to what to do if the court does not want to follow the rule of stay, to file, as of right, a motion to vacate for lack of the court's authority to do so, that would be CPLR 5015(a)(4).


So, if I were (and I am) a litigant in a New York court case, I would be vigilant as to whether the opposing counsel does or does not have AUTHORITY (do not confuse, again, with a license) to practice law in the State of New York, and the first thing to do that is to verify, BY LEGAL MEANS, the home address of such an attorney.


There are additional problems with authority to practice if the opposing counsel is a law firm, since lawfully REGISTERED law firms may still lack AUTHORITY to transact any business in New York, including the business they were created to transact, the practice of law, if they have FAILED TO DO SOMETHING REQUIRED OF THEM BY LAW AFTER THE REGISTRATION.


If you are interested in this topic, stay tuned, I will cover it in one of the next blog articles, so, please, stay tuned.


As always, I will be glad for comments of the public on the issues raised in this article.





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