A tribute to corrupt public officials. #JudgeSolWachtler of New York - a luminary and "a shitkicker, but not a dumb shitkicker" (his own words). Part I.

Here is registration information of an attorney licensed to practice law in New York:

The attorney was disbarred - and then reinstated, and even

• runs a mediation company, CADRE, member of American Bar Association:

"with the advice and assistance of such good friends as R. Preston Tisch, Fred Wilpon, and John Rosenwald, I have started a business: Comprehensive Alternative Dispute Resolution Enterprise, Inc. (CADRE), which has a roster of distinguished mediators, arbitrators, and retired jurists available to settle disputes through mediation or binding arbitration. The mission of CADRE is to provide a quicker, less costly forum for the resolution of civil disputes outside our crowded courtrooms. I do not draw a salary, and all profits are donated to legal services for the poor."

Wachtler, Sol. After the Madness: A Judge's Own Prison Memoir (p. 361). Open Road Media. Kindle Edition.

R. Preston Tisch (died in 2005), was a businessman and a 50% owner of New York Giants, a football company;

Fred Wilpon is Sol Wachtler friend, father-in-law of Sol Wachtler's son and co-grandfather of Sol Wachtler's granddaughter and, "coincidentally", the majority owner of New York Mets who established a multi-million trust for Sol Wachtler's son Phillip and for Sol Wachtler's granddaughter Kimberly Wachtler, a 2013 Yale Law School graduate.

John Rosenwald is a rich and powerful philanthropist who, whose influence in New York can be described by the title of New York Times' article about him in 2000: "When Rosie Asks, New York's Elite Can't Say No".

Sol Wachtler also currently:

• works as a Distinguished Adjunct Constitutional Law Professor at Touro Law Center - without any mentioning to his unsuspecting female students of his criminal charges for stalking, intimidation, extortion from a woman, his repeated sending of extremely filthy, obscene material to a minor and his threat to kidnap a minor unless he is paid $20,000 - that what he was arrested, charged and spent 15 months in federal prison for;

• has two scholarships and a fellowship in his name dedicated to him in Touro Law Center;

• makes public videotaped presentations (available on YouTube) about "the rule of law":

• about "Open minds under siege" where Richard D. Heffner, a "Dowling Professor of Communications and Public Policy" of Rutgers University was shamelessly promoting Sol Wachtler and calling him "Judge" as head of a seminar in Germany (after his conviction and release from prison) about complicity of legal profession in Germany with the Hitler regime - after Wachtler, as New York Chief Judge, relied on complicity of the American legal profession in never arresting and charging him for crimes (which he described in his book "After the Madness"), and after the only thing that protected his victims was being friends with the then-presidential couple - George and Barbara Bushes;

• and about "Freedom of Choice at the End of Life" - teaching about ethics and bioethics, of all things, after having being convicted of most unethical conduct;

• delivers lectures to Albany Law School students, being introduced by the then-Chief Judge Jonathan Lippman as the "Honorable" former Chief Judge of the New York State Court of Appeals - without any mention of his criminal conviction or disbarment:

• shamelessly sits on "panels" with judges who were not convicted of crimes of extortion with threats of kidnapping of a minor, talking to the public and law students, of all things, about the role of religion in the life of judges and lawyers working for the government - that was in May of 2012;

• was invited to speak to Siena College students about "Mental illness and incarceration";
• and who shamelessly allows himself to be called "Honorable" and who calls himself "Honorable" in his addresses and law review articles;

Knowing how difficult it is to get reinstate in New York for a disbarred or even a suspended attorney, how unforgiving is the system - even against attorneys whose only fault is that they criticized judges, as part of their jobs and their duties to their clients - I started to explore this extraordinary resurrection of Solomon Wachtler from

• a criminal conviction,
• resignation as the Chief Judge of the State of New York and
• disbarment back to

glory, sycophanting to Wachtler by the judicial, legal and academic elite, to the point of New York State Court System, in an official biographical article, is portraying Wachtler as a "luminary" of New York State judiciary, complete with the full-height framed portrait of the "luminary",

 thanking him for "saving" New York court system by not claiming the mental illness defense in his criminal prosecution (even though claiming he was mentally ill in his book and in his lectures after the conviction) - because, without such insanity defense, people whose cases Wachtler botched up because he was crazed at the time he was deciding them, did not have a basis to make a motion to vacate his decisions:

and lamenting that

- that's the same "one slight slip" vs a lifetime of "good deeds" argument that was used by Sen. Chaka Fattah's friends at his sentencing for public corruption this month.

I share this opinion on one point only - that Wachtler should not be remembered by the public for just ONE bad deed - portrayed as a "slight slip" at the background of a lifetime of glory - but that he should be remembered by all known bad deeds - and I am making it a point to provide an inventory of those bad deeds as described in the press, Wachtler's own book and books written about him based on documentary evidence and interviews with witnesses, including Wachtler himself and his wife.

And, I would like the public to know people who made it possible for Wachtler to return as a licensed attorney and a "distinguished law professor":

1) this is Sol Wachtler's resignation as an attorney - and resulting disbarment - because he pled guilty to a felony extortion in federal court in order to avoid up to 16 years in prison if fully prosecuted on all charges in the indictment;

1) this is the panel of 5 judges, including the then-future (now former) New York Chief Administrative Judge A. Gail Prudenti presiding who accepted Wachtler's motion for reinstatement and referred it to the Attorney Grievance Committee;

2) and this is the same panel of 5 judges reinstating Wachtler:

"Motion by the respondent, Sol Wachtler, for an order reinstating him as an attorney and counselor-at-law or, in the alternative, referring this matter to the Committee on Character and Fitness for a hearing and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on April 4, 1956, under the name Solomon Wachtler. By opinion and order of this court dated August 2, 1993, the respondent was disbarred upon his submission of a resignation, dated July 20, 1993, which followed his plea of guilty in the United States District Court in Trenton, New Jersey, on March 31, 1993, to a violation of 18 USC § 875(c), a Federal felony. The respondent's first application for reinstatement was denied by decision and order on application of this court dated April 14, 2003. By decision and order on motion of this court dated February 6, 2007, the respondent's motion was granted to the extent that the matter was referred to the Committee on Character and Fitness to investigate and report on the respondent 's current fitness to be an attorney, including but not limited to an updated report from his treating physician, and the motion was otherwise held in abeyance in the interim.
Upon the report of the Committee on Character and Fitness and the exhibits annexed thereto, it is
ORDERED that the motion is granted; and it is further,
ORDERED that, effective immediately, the respondent, Sol Wachtler, admitted as Solomon Wachtler, is reinstated as an attorney and counselor-at-law and the Clerk of the Court is directed to restore the name of Sol Wachtler, admitted as Solomon Wachtler, to the roll of attorneys and counselors-at-law.
PRUDENTI, P.J., MILLER, SCHMIDT, CRANE and RITTER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
So, Wachtler, a convicted felon, a stalker, a peeping Tom, extortioner, impersonator of other people, a forger of signatures of other people, and an attempted child kidnapper, was reinstated as an attorney "upon the report of the Committee for Character and fitness, and the exhibits attached thereto".

This is the woman, A. Gail Prudenti, who reinstated, without publicly stating the reasons, the convicted felon, stalker and abuser of women Sol Wachtler:

Within 4 years of her decision, A. Gail Prudenti was elevated to the position of the Chief Judge of the New York State Court system.

I wonder whether she reinstated Sol Wachtler upon the report of the Committee for Character and Fitness and "exhibits thereto", or upon a phone call from someone to whom "New York elite can't say no".

I wonder how Prudenti explained, in good faith and with a straight face, that she is reinstating a monster who systematically used his enormous power to emotionally torture a woman and claim to people around her that her guess that he is the perpetrator of threats, impersonations, stalking and extortion against her is New York Chief Judge Wachtler.

Had Wachtler had his way, he would have locked his girlfriend up as crazy instead of ending up convicted for a crime.

Only the Bush family friendship saved Joy Silverman from that fate.

Wachtler already made claims that Joy Silverman is crazy to her attorney.

For whatever corrupt reason New York elite could not say "no" to reinstatement of Sol Wachtler, evidence against him remains the same damning evidence, knowing which people should not give him a hand to shake - and should protect women and children from his presence.

Touro Law Center is really courting danger by not disclosing on its website the nature of Sol Wachtler's conviction - and thus exposing its students to an exceptionally smart, creative, knowledgeable and merciless stalker and harasser of women.

And, whenever students and members of the public are exposed to this refined and cultured "luminary" with melodical voice, a ready smile and smooth speech, it is good to remember that this is how he described himself to the woman he stalked, to whose child he has sent obscenities - and a condom - and whose child he threatened to kidnap:

"“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.

It is apparent that Sol Wachtler is a cunning, inventive and ruthless stalker - and that his return to power and glory is outright dangerous for possible new unsuspecting victims who might not have, as Sol Wachtler former girlfriend Joy Silverman, the protection of the Bush family that caused Wachtler's downfall - and prevented us from having Wachtler for New York Governor (he already planned to run) and, later as President of the United States (reportedly, he planned that, too).

Sol Wachtler, according to his own self-characterization, is a SHITKICKER, AND NOT A DUMB SHITKICKER.

And how exactly Sol Wachtler rose to power, ruthlessly, unethically and greedily using people as stepping stones, how he abused his power, what crimes and unethical deeds he has committed - and how he got to the point where the New York State police and attorneys who knew about his crimes were afraid to investigate and report him, even when he committed crimes against a personal friend of the President of the United States and his spouse - is what Sol Wachtler should be remembered for.

Sol Wachtler is lecturing about the "rule of law" and about "complicity" of the German judiciary and lawyers to Hitler's regime.

But, Sol Wachtler has ESTABLISHED a complicity regime in the State of New York which - had Hitler been in power - would have engaged in the same complicity.

As sycophanting of judiciary and the legal elite to Sol Watchler before and after his conviction clearly demonstrates.

I will continue publishing the inventory of Sol Wachtler The Smart Shitkicker's deeds that he needs to be remembered for.

Stay tuned.

A tribute to corrupt public officials. Pennsylvania Senator Chaka Fattah

I have been doing some extensive research on public corruption over the years, and what has struck me is how many people - usually, those connected to the corrupt public official - lamenting that the corrupt public official is not remembered by his or her "good deeds", but only for his "single" misdeed for which he or she is caught and disciplined or convicted.

And, the higher the public official was, the more possibilities for corruption that public official had, the more power he or she had to suppress evidence of such corruption - and the more those close to the public official would claim that he or she erred only slightly, only once, and should be remembered for the "good deeds" and not for this "slight slip".

Yet, the slips that the corrupt public official is caught for is usually very bad, and covered some systemic abuse of public trust - because even the federal law enforcement (who usually catches public officials for corruption) is afraid to make a case against a high-standing public official unless evidence of corruption is overwhelming.

I call a public official "corrupt" not only if he or she is involved in financial corruption, but also if he or she is engages in misconduct in total belief of his or her impunity, and uses his or her position to commit misconduct, threaten whistleblowers, and/or prevent prosecution. 

Of course, the U.S. Supreme Court has recently made it only harder to prosecute public corruption - by claiming I a recent precedent, "coincidentally" decided right at the time when both heads of New York State Legislature, Sheldon Silver and Dean Skelos, were convicted and sentenced for public corruption, that the "quid pro quo" of favors that the public official provides in exchange for support in election campaigns is not enough for conviction for public corruption.

Yet, there was a conviction - and a 10-year sentence - imposed in federal court in Pennsylvania against U.S. Senator Chaka Fattah,

who has served so far 11 terms in the U.S. Congress, for dozens of counts of corruption under RICO (Racketeer Influenced and Corrupt Organization Act) and was sentenced to 10 years in federal prison, and to pay a restitution of $614,000 to victims of his corruption.

What the esteemed Senator was convicted and sentenced for was:

• took an illegal secret loan of $1,000,000 from his friend Albert Lord, a former Chief Executive Officer at Sallie Mae (a corporation issuing consumers loans, mostly student loans), to support his unsuccessful campaign to become the Philadelphia mayor and paid it off, illegally, with charitable funds and federal grant money from an educational charity run by his own staffers - which raises questions who the staffers were, how come they allowed the charity's money to be used by the Senator at all, and, especially, for his personal needs;
• took a bribe from a personal friend Herb Vederman, to ask President Obama for an ambassadorship for Vederman (Sen. Fattah reportedly signed and hand-delivered the letter to President Obama asking for an ambassadorship for Herb Vederman); 
• Sen. Fattah reportedly used the bribe of $18,000 as a downpayment of his and his wife's Poconos vacation home - and lied to authorities that the money was obtained as a payment for Sen. Fattah's wife's Porshe - which, reportedly, never left their garage;
• used campaign funds to pay off his son's student loan debt;

Senator Fattah claimed at sentencing that he helped "tens of millions of people", that the prosecutor's investigation of himself was "disappointing", and refused to recognize that he was guilty of what he was found guilty of at trial.

While a U.S. Senator currently draws a salary of $174,000, and Senator Fattah's wife Renee Chenault-Fattah (who is also an attorney)

who has reportedly been an WCAU-TV anchor for 25 years (she has recently left that position) and had a salary of $500,00 per year, Senator Fattah considered it possible to help himself from charitable and federal governmental funds to cover his personal expenses, and expenses of his son - who has been convicted, sentenced and is already serving his own prison term.

Yet, at Fattah's sentencing there appeared many people who promoted the theory of "slight slip" vs "a lot of good deeds", asking for leniency to the Senator convicted of many counts of fraud and money laundering which, involving misuse of enormous amounts of public and charity money for personal needs that, considering Senators and his wife's income, the sentencing judge called "astonishing".

Pleas for leniency included accounts of "mentorship" and coming to weddings, participating in campaigns to fight AIDS in African and being a "good friend of Israel", as well as educating poor children.

When an average Joe Doe steals $5 worth of stuff from a supermarket, he will have a criminal conviction, and all his minor indiscretions will be piled up on him.

When a U.S. Senator committed atrocious public fraud, people are lined up claiming that his "slight slip" should not overcome, in the eye of the sentencing judge, his "good deeds".

Actually, the judge was influence by the "good deed" argument - by giving Senator Fattah 10 years in prison instead of 17 to 22 years, as requested by the prosecution under the sentencing guidelines.

I hope that the U.S. Prison Bureau will not consider the "good deed" argument though and will not sent Senator Fattah to a country-club prison camp in Florida, as it does for many corrupt public officials.

When Senator Fattah was intentionally committing his crimes against the public - crimes proven to a jury of his peers - he was supposed to think about his own reputation.

And, by the way, Senator Fattah, who, together with his wife drew a combined salary of $674,000 a year, and stole even more from public funds - forced his attorneys in criminal proceedings, through a court order - to represent him for free.

Which only confirms how good and honest Senator Fattah is, and what he needs to be remembered by.

When he ran for 11 congressional terms, he ran not to serve the people, but very obviously to serve himself.

What people got from him in terms of "good deeds" is collateral to self-enrichment.

And, when he voluntarily ruined his reputation by engaging in criminal conduct, there is no point trying to resurrect it.

There is a saying - "stained silk is forever ruined".

So is a public official's reputation.

Missouri makes fights on school grounds and in school buses a felony - to secure young and strong workforce for for-profit prisons for a longer time?

It has been reported that, starting January of 2017, fights on school grounds and on school buses in Missouri will be classified and prosecuted as felonies.

While concern about children's safety on school grounds and on school buses is important, making felons out of school children as a way to enforce discipline in school - and especially while making public education mandatory - is not such a good idea.

Why?

I am not going to claim that "boys will be boys" from the point of view that fighting is a good way to resolve conflicts.

But, I am going to claim that boys will be boys, that aggression is natural in the growing human being, that it may be caused by hormones, that it is natural to predict a certain amount of physical fighting among school kids - and that trying kids as adults and slapping kids with adult charges and adult felony sentences, including a felony record and a matching forfeiture of basic civil rights, such as a right to vote, a right to be employed and earn a living, and a right to education (try getting into a college with a felony record) is an admission that the school personnel is unable to maintain proper discipline in school - and then, that parents cannot be forced, and charged if they resist, to send children into schools, places where violence is so bad and so uncontrollable that only adult felony sentences can resolve the situation.

Moreover, statistics exists indicating that upping the stakes, from misdemeanor to a felony, does not actually deter violence.

What it does is it ups the stake for criminal defendants in litigation, makes defense - and minors are defended at taxpayers' expense - more expensive, because now it includes grand jury proceedings, and because risks and adverse consequences for a defendant in such proceedings is much higher than in misdemeanor proceedings.

All the players who introduced and enacted that bill know all of these facts very well, so why was the bill introduced?

Of course, it had to involve somebody who pounded his chest to electors in claims of being "tough on crime", and using shattered lives of school students as a stepping stone in their careers.  Happens all the time.

But, in addition, a sticky question arises - was upping the inevitable fights on school grounds and in school buses of hormone-driven youngsters from a misdemeanor to a felony done as a bargain with the for-profit prison complex - to supply young healthy strong slaves for the for-profit prisons?

There are two ways for the for-profit prison industry to profit from its prisons:

1) slave labor of prisoners who are paid times less than the minimal wage - if they are paid at all - and thus allow for-profit corporations to sink their competitors with low prices for their products;

2) being reimbursed by counties - as it happened in the Kids for Cash case in Pennsylvania - for every "head" of a juvenile sent to the juvenile "correctional facility".

In the Kids for Cash scandal judges were caught receiving kickbacks for sentencing kids, without counsel, to time in a for-profit prison.

Attorneys who definitely knew about the corrupt scheme - for years - were afraid to peep a word to authorities, because of fear of retaliation from the judiciary who can take attorneys' licenses and livelihood if they "step out of line".

Missouri was already sued for "barbaric conditions" in their for-profit juvenile facilities.

And, after the lawsuit, Missouri now claims that it has revamped the system of incarceration of juvenile offenders, allegedly focusing on their rehabilitation close to home.

Yet, sentencing kids for felonies now, whether they go to juvenile or adult prisons, serves for-profit industry both ways:

1) both as young and strong slaves for in-prison production;
2) by providing overpriced services to prison population who have no alternative to such overpriced services; and
3) as "heads" of cattle for whom for-profit prisons will get reimbursements from counties for a longer period of time for felony sentences than for misdemeanors;
4) providing employment for a vast number of prison personnel - from guards to "counselors" to cooks to cleaners - to executives.

Any parent who has ever asked a school for videotapes or access to witnesses of accidents or fights on school grounds, will always face stonewalling - videos will be claimed to have been lost or written over, and access to witnesses will be blocked by the school's insurance company.  Happened to me all the way when I was suing schools on behalf of students.  As a result, my child became a target in a school I sued on behalf of another child, and we had to remove the child not only from the school, but from the state entirely.

Yet, the school is acting "in loco parentis" (in the position of a parent) for the child - but, instead of acting in the best interest of the child, the school blocks the child's real parents from access to evidence of what really occurs, and usually exposes the child to police interrogation by waiving its right to counsel.

So, parents, under the threat of criminal prosecution or civil adjudication for "educational neglect", must place their children into the inherently unsafe situation - where schools admit that they cannot control violence on school grounds and school buses to the point of having school fights among kids qualified as felonies, and where schools likely have an interest and a connection with the for-profit prison industry in supplying the necessary number of "heads" to secure profits, and by waiving the child's right to counsel, acting on behalf of the child "in loco parentis" and waiving his right to an attorney.

At the same time, parents will be blocked from evidence of those alleged felonies by schools whose officials, most likely, will have a cut from the for-profit prison industry for filling for-profit prisons with "heads" for which counties will pay, for a longer period of time than for misdemeanors.

And, conditions in juvenile prisons, where children are supposed to "rehabilitate" and not be violent, are more violent than outside - so the only concern of the for-prison industry is for money per head of incarcerated youth, and not about that youth rehabilitation and safety.

And, when the drive is to maximize profit, no claims of "revamping" the juvenile prison system will help.

The for-profit prison system lost money on revamping its juvenile prison - now it will get that money back, in droves, by having secured "heads" of incarcerated kids, secured for longer periods of time.

What that legislation will do to

• school safety;
• kids sentenced as felons;
• taxpayers who have to pay through their noses for criminal defense in felony cases, which is more expensive than in misdemeanor cases,

nobody really cares.

The eyes of the players are towards the bottom-line.

Is it only me who thinks that what is going on in Missouri smacks of disgusting corruption?

Death sentences in Florida and retroactivity of the U.S. Supreme Court precedents

In Marbury v Madison, a seminal 1803 case, the U.S. Supreme Court has held that an unconstitutional law is void.

"Void" means a nullity - like the law has never been made.

It means that, once a court of law pronounces any law unconstitutional, it is as if that law has never been passed, and has never been legal.

In January of 2016, the U.S. Supreme Court found the Florida death penalty law unconstitutional.

It should mean - under Marbury v Madison - that the Florida death penalty law is void and a nullity, as if it has been never enacted, and that all death sentences under that law are similarly void.

Yet, today the Florida Supreme Court reversed only those death penalty sentences that were made after 2002, or whose appeals were still pending in 2002 - indicating that the decision of the U.S. Supreme Court will not be made retroactive before that date for other death sentences.

Which raises an issue - did the Florida Supreme Court invent a new definition for "void"?

And, how many more people should be unlawfully executed, in addition to the one already unconstitutionally executed (Ronald Bert Smith Jr., in Alabama, even though his death sentence was imposed by a judge and not a jury, in contradiction with the January U.S. Supreme Court precedent), because their sentences were unconstitutionally made "too long" of a time ago?

The government's bait-and-switch for attorneys working for the poor

When I was entering law school, we had a week-long orientation.

My future law school classmates, kids with stars in their eyes, told me during that orientation, that their purpose in life is to serve the people, the indigent, those deprived by the government or "by the rich" and "by the corporations", of their civil rights.

Yet, by the end of law school, reality settled in in the form of student loans, and my law school class, those kids who were so eager to work for the poor and against infringements upon civil rights by the government, "the rich" and "the corporations", went, in their overwhelming majority, to work for the government, the rich, and the corporations.

In the law review article by law professor Professor Lisa Nicholson - who provides excellent references to other materials and excellent statistics, but makes illogical conclusions from her own information (that the "justice gap" should be bridged by forced labor of attorneys and by increase of attorney registration fees and bar dues) - Professor Nicholson provides astounding figures:

• over 60 million people in the U.S., per year, cannot afford legal representation, and
• while the legal profession claims that it is not a business, and that its main purpose is to "serve the public" rather than work towards a bottom-line, the legal profession is stratified - with an overproduction of lawyers, and great competition over positions in rich law firms, and, on the other hand, with shortage of lawyers for the poor (1 full time attorney working for the poor per 14,000 of indigent litigants).

The legal elite, including the judiciary, continue to pay the lip service to those attorneys who serve the poor, while their actions, to the contrary of their words, speak louder than those false declarations.

1. The promise of 42 U.S.C. 1988 to attract attorneys into representing the poor without pay in civil rights lawsuits against the government, in the hope of being reimbursed at the end of litigation, results in:
1. dismissals of most of civil rights actions based on this or that judicially created barrier - so the attorney who undertook litigation for free, does not get paid under 42 U.S.C. 1988;
2. sanctions imposed upon civil rights attorneys for plaintiffs for "frivolous conduct" - "frivolous conduct" being either novel constitutional arguments, or constitutional argument based on precedent that courts do not want to acknowledge - naturally, the civil rights attorney does not get paid under 42 U.S.C. 1988 and remains with nothing;
3. clients in civil rights litigation, those same clients who did not pay the attorney at the outset, pointing out that either they will pay themselves, or the attorney will be reimbursed through 42 U.S.C. 1988, do not pay, fire the attorney before the end of litigation, and settle the case on a condition that they do not apply for attorney fees under 42 U.S.C. 1988 - and courts rule that attorney fees of the attorney who was cheated out of them, do not belong to the attorney, but to the client, because 42 U.S.C. 1988 gives the clients, and not the attorneys, to apply for legal fees, and, if the attorney was fired for cause or for no cause, the attorney has no recourse to use 42 U.S.C. 1988 and get paid.  Under 42 U.S.C. 1988 an attorney who did not represent the client from the beginning to the end of litigation, do not have any rights (and they can be dismissed by the client without cause at any time during litigation) - and the client, being an indigent, will provide no hope of recovery; so the civil rights attorney can easily get cheated out of his or her payment under 42 U.S.C. 1988;
4. even when clients do not want to discharge the civil rights attorney, the court can revoke the attorney's license and deprive the clients of their civil rights attorney - and the attorney of his or her legal fee for years of representation under 42 U.S.C. 1988;
5. even when a civil rights attorney represented a client from beginning to end of litigation, the court may, out of spite, delay ruling upon the legal fee, forcing the attorney into bankruptcy - as it happened to California civil rights attorney Patricia Barry, the attorney who gave all women in the U.S. the gift of protection of law from sexual harassment in the workplace, and who, after winning the case in the U.S. Supreme Court, was waiting, on remand, for 1.5 years for a decision on legal fees under 42 U.S.C. 1988, while she was experiencing financial hardships and finally had to file for bankruptcy.

2.  Solo and small firm attorneys, criminal defense, Family Court and civil rights attorneys are predominantly targeted with attorney discipline.

3. Many judges are treating solo and small-firm attorneys in an openly derogatory fashion, calling them, as the now-retired Delaware County (NY) Judge Carl F. Becker did -  "bargain basement" attorneys and that "you get what you pay for" - meaning, that the underpaid public service attorneys necessarily are bad quality attorneys.

4.  Extraordinary things are done by courts to attorneys working for the poor.

In Nevada, an attorney was handcuffed on order of a judge for making constitutional arguments (against incarceration, the due process liberty right) on behalf of her indigent client.

In New Mexico, the State Public Defender was held in contempt of court for refusing to provide services to criminal defendants when he could not, because of budget constraint, provide the full scope of effective representation required by the 6th Amendment to the U.S. Constitution. 

Yet, despite underpaying, overworking and treating attorneys for the poor like shit - excuse my elaborate French - the government continued to lure - until recently - those "bargain basement attorneys" into low-paid public service positions by a promise that their oversized debts for law school education, their student loans, will be forgiven if they work for 10 years in public service and pay their loans during that time.

But then, the government, the U.S. Department of Education, now decided that it is not fiscally prudent to honor that commitment - the commitment upon which thousands of law school graduates relied when entering law school and when entering public service instead of lucrative mammoth rich law firms.

And, the American Bar Association is now suing the U.S. Department of Education - while at the very same time revoking certifications of certain law schools, which leads to revoking of student loan support of all students, not just those who plan to enter public service, and leaves students already halfway through the school, or close to graduation, without a degree - or hope of receiving one, simply because the school allegedly does not adhere to the "standards" of ABA, a corporation with foreign financing.

Since Charlotte Law School was oriented at the so-called "non-traditional" students, those who enter law school at an older age, not right after college, or who continue to work and study - and who are more likely to go not into the high-rise mammoth law firms, but into representation of the poor, and since Charlotte Law Schools offers 13 law clinics teaching its students how to represent the poor, it is quite disturbing that the killing of the law schools overproducing lawyers starts from those schools who produce lawyers working for the poor - under any pretexts.

Bar passage rate is NOT a good predicting factor of the quality of law students.

Bar exams are highly stressful, timed, and law professors preparing law students for such bar exams (and for law school finals) openly call exams "brain dumps" - meaning that students will forget all that they dumped on the test sheets after they took the exam.

The value of bar exam preparation, or of bar exam passage, under those circumstances is zero, and poor performance on subjects that have nothing to do with representation of the poor in criminal, family or civil courts, should not preclude attorneys who do want to serve the poor from practicing law.

It is apparent that the legal elite does not care about the fate of indigent litigants, or about the fact that regulation of attorneys under the guise of protecting the clients do not protect 61 million pro se litigants who, as a result of that regulation, and the resulting monopoly established by the legal profession for itself, cannot afford a court representative.

And, it is apparent that, despite all odds, there are still people who want to serve the poor - but who are undercut by the government every step of the way, despite lip service of "supporting" those who want to do "public service" and represent the poor in court.

I am confident that 200 years from now, when none of us currently living are alive any more, regulation of attorneys that created

• overproduction of attorneys for the rich (over 110,000 law schools students are reported as of this year alone),
• underproduction of attorneys for the poor, and
• persecution of attorneys for the poor by attorneys for the rich under the guise of "regulating" the legal profession, 

will be a shameful thing of the past.

I only hope that the inevitable agony of attorney regulation, happens quicker and results in less trauma and loss of rights to the people.

The failed promise of the limited scope representation and presumption of knowledge of the law

On December 16, 2016, New York Court Administration issued an administrative order of December 16, 2016 officially (but conditionally - by permission of court) allowing "limited scope representation" by attorneys.

In view of all of the above problems, New York Chief Administrative judge coughed up this kind of relief:

There is nothing revolutionary about the administrative order.

Attorneys ghost-wrote for unrepresented clients behind the scenes forever, and provided, also forever, one-time consultations on certain issues of an ongoing case.

The only difference the administrative order makes is that it will now allow representation of a client for one appearance - or for one motion - in court, but also, with court permission and at the court's discretion.

It could have been good and bad - had the procedure of how the "limited representation" been clearly set, which it hadn't been - for both clients, and good and bad for attorneys, too.

The bad is that an attorney would bear liability only for a portion of representation in litigation - and can thus make motions or appearances with a view to "perform" only for purposes of this motion or appearance - and not to fulfill a larger role to win the entire litigation.

Moreover, it is impossible, with a patchwork of attorneys performing discreet small tasks on the case to establish malpractice liability of that attorney - because, with few exceptions, it is impossible to establish for purposes of malpractice that it is the particular attorney's mistake at the particular stage of litigation that substantially caused the loss of an otherwise meritorious case for the client.

Moreover, if the client's case in the same litigation presents a patchwork of attorneys appearing "for one appearance" or for "one motion", which appearances are interspersed with no appearances at all, the case thus presents a potential problem of "too many cooks that spoil the broth" and ruin the case instead of helping, because each attorney will come with his or her own strategy.

The patchwork of representation though provides an excuse for judges to not consider the otherwise pro se status of litigants and to rule as if the litigant is represented by "competent counsel" - which is usually an excuse for courts to claim that, if any issues were not raised in litigation (and a "patchwork counsel" is likely not to raise a lot of issues, restricting him- or herself to just one narrow portion of litigation), that is because it was not malpractice, but some kind of "strategy" of "competent counsel".

Of course, judges do not want to deal with pro se litigants - to the point that New York judges claimed, and received this year, a large increase in their already high salaries claiming difficulties in handling the ever raising number of pro se litigants in their caseloads.

And, the order is good for attorneys who, once they have the risk of appearing in a case were - unfairly - kept by courts as slaves of their non-paying clients, because New York law allows withdrawal from a case only:

• by a sworn permission of the client, or
• by a court order - permission of the court,

and courts are notorious not to give such permission to withdraw "only" for client non-payment.

I was ordered by Judge John F. Lambert, assigned judge in Delaware County Supreme Court, to handle a trial for a non-paying client, even though the opponent presented in the trial ample evidence of her ability to pay - and I was supposed to litigate AGAINST those claims, while not being paid myself.

Of course, such attitude of courts, enslaving an attorney to non-paying clients, backfired since attorneys reacted to such court practices in two ways:

• either by not taking cases at all whenever they would sense that the client will not be able to afford to pay throughout a potentially long litigation, or
• claim huge and immediate down-payments at the outset of representation to offset the risk of future non-payment -

both of which tactics, which were reasonable on behalf of attorneys, in response to unfair laws and court practices forcing them to work for free - made it impossible for many people to obtain an attorney to represent them.

Supposedly, again, had the procedure for the December 16, 2016 administrative court order set through, pro se litigants would have benefitted from at least a patchwork of attorneys appearing at some stages of litigation, if the pro se litigant cannot afford their appearance at all stages.

I already wrote that this "partial" decision of a problem is not necessarily a good thing.

Imagine a doctor overseeing only a portion of a course of treatment, otherwise allowing the patient to self-medicate and self-treat - what good will such a strategy produce.

So, even if the procedure for "limited scope representation" would be set up - which it wasn't - it would have provided questionable benefits, if any benefits at all.

Despite the claim that the reason for the "limited scope" court order is to help pro se litigants, the benefits from such order will be obtained by judges who will be freer in their decisions because of a "competent counsel" representing the otherwise pro se litigants at a certain stage of litigation, and because they do not need to "deal" with a pro se litigant, and to attorneys who will now have the ability (at least theoretically) to undertake a case without considering the risk of non-payment.

In reality though, the "right" - of the client to have a "limited scope representation", or of attorney to engage in such representation - is not that straightforward, as per Administrative Order of December 16, 2016.

It is conditioned on three things:

1. the attorney taking a "certified CLE course" for limited representation - and thus putting a bull's eye on him- or herself if the attorney then would decide not to do the "limited scope representation" by leave of court, but give behind-the scene consultations and occasionally ghost-write pleadings for a pro se litigant;
2. having a specific "limited scope" retainer agreement spelling out the terms of limited representation - which is fair to both sides; and
3. have permission of court to proceed with a limited-scope representation

Now, how will this permission of court work in practice?

A counsel usually does not appear in court unless the client signed a retainer agreement and paid the initial amount - and thus hired the attorney.

But, if the attorney feels that the "limited-scope retainer" can be made subsequently unenforceable by the court's denial of permission to proceed only as a "limited scope", not a "full scope" attorney of record, the attorney can still stick to the previous strategy - either abstain from representation or charge a large down-payment to protect him-/herself from the risk of non-payment further in litigation - the very strategy, caused by court's orders of free representation that made the administrative order necessary in the first place.

Attorneys can see this "permission of court" condition as a trap - because no procedure was prescribed in that order for an attorney

1. FIRST appearing before the court in writing to ask for permission to proceed on a limited scope representation without actually representing the client;
2. then signing a court-approved "limited scope representation" retainer agreement, and
3. only then actually appearing on behalf of the client.

The way the order exists now, it changed nothing other than created an illusion that New York State Court administration wants to do something to close the "justice gap" - while at the same time  the same court system is relentlessly persecuting attorneys who work, pro bono and at reduced rates who already represent the poor, thus widening the "justice gap", and fights tooth and claw against federal lawsuits that try to restore unconstitutionally revoked licenses of civil rights attorneys.

The only "value" of the order is a declaration that New York State Court system cannot miss the writing on the wall and is starting to "unbundle" legal services by allowing a "break-up" representation.

The judiciary is resisting still the idea that it is the judiciary that actually CAUSES the justice gap by not allowing representation of those who cannot afford an attorney by anybody but a licensed attorney.

Such a requirement, of court representation only by a licensed attorney is, first, contrary to the long-standing U.S. Supreme Court precedent Johnson v Avery, providing that

where the state cannot ensure legal representation,
(and such lack of legal representation results in massive loss of legal rights by the poor - which is what the administrative order of December 16, 2016 admits in its "Whereas" part):

- the state has no right to prohibit legal representation by unlicensed individuals.


Second, there is a fundamental constitutional right to privacy and autonomy in personal decisions of competent adults that restriction of court representation to only licensed attorneys violates.  Who will represent a person in court, is a personal decision of the litigant, and the government has no right to demand from the litigant that the litigant either accepts from the government its help to pre-approve, through licensing process, who the litigant wants to represent him/her in court - or have no representation at all.

As I stated in this blog previously, occupational licensing is help in checking out potential providers' backgrounds, training and moral character, and, as with any other type of help, a competent adult should be able to either accept it or reject it.


Third, in New York as well as in federal courts, an "expert" does not have to be licensed or formally educated to testify in court as an expert - an expert can be qualified as an expert without any formal education or licensing whatsoever,  "by knowledge, skills and experience", and based on self-education alone.

If an expert qualifies for court testimony to influence the court and the jury without any formal training - and that includes expert in law - there is no reason to heighten that standard for representation in the same court.

And fourth, but not last in importance, is the principle of presumption of knowledge of the law upon which enforcement of all laws in this country rests.

It is disingenuous (illogical, arbitrary, irrational and stupid) for the government to claim, on the one hand, that a person appearing Pro Se in court, without counsel, is PRESUMED to know ALL the laws, and that, for that reason, a Pro Se litigant's lack of knowledge of the law is no defense - and at the very same time claim that the Pro Se litigant does not know the law that he or she is presumed to know - enough to choose his own court representative, out of other members of the public, licensed or unlicensed, who are all also PRESUMED to know the law.

Under presumption of knowledge of the law, all the claims of lack of sophistication of litigants that are advanced by opponents of attorney regulation fall on their face.

What kind of extra sophistication is needed by a person presumed to know ALL the laws in order to hire another person, also presumed to know ALL the laws - whether the person choosing and the person chosen are licensed to "practice law" or not - and especially that what constitutes the "practice of law" is not defined by statute in New York at all, or with any degree of clarity.

Of course, the legal profession is the only profession that shot itself in the foot by claiming, at the same time, that:

1. court representation, and legal services in general, need to be regulated because regulation (of attorneys by attorneys, in a classic "fox guards the chicken coup" scheme) allegedly helps protect unsophisticated consumers who do not know the law and do not know how to distinguish a good provider of legal services from a bad provider without government's help through attorney licensing; and, at the very same time, that
2. every person suing in U.S. state and federal courts, including illiterate, the poor and the people who do not know the English language, is presumed to know all laws, regulations and ordinances of the United States, several states, down to separate townships.

Unlike lawyers, plumbers, as a licensed profession, did not put on the books laws claiming that everybody is presumed to know about plumbing.
And, unlike lawyers, doctors did not put on the books laws claiming that everybody is presumed to know about medicine, down to neurosurgery techniques.

But, plumbers and doctors are not dominating courts and state and federal legislatures and administrative agencies that produce and enforce the principle of presumption of knowledge of laws - the knowledge of which is the "merchandise" licensed attorneys deal in.

And, of course, the presumption of knowledge of the law is a "legal fiction" created and maintained for convenience of law enforcement - because, if people claim they did not know the law they are accused of having violated, laws will become unenforceable, and chaos will ensue.

Yet, this is a situation when the government, after it said that a legal presumption "A" exists, cannot now oppose the legal presumption "B" following from the legal presumption "A", that people presumed to know the law can choose whoever they want, licensed or unlicensed to practice law, and that unlicensed individuals are also presumed to know the law, and are thus perfectly fit, as a matter of law, to represent anybody in court or give to anybody legal advice, based on the law that they are presumed to know. 

Of course, the government never recognizes that it is wrong easily.

Instead of recognizing that attorney regulation is a stillborn child of the legal profession in order to protect itself from competition and secure high fees - and that this stillborn project backfired by depriving millions of people of court representatives of their choice, resulting in massive loss of basic human rights to custody of children, property, shelter, liberty and sometimes life - the legal profession is digging in and is trying to invent runarounds the writing on the wall.

The "limited representation" rule introduced in New York is yet another of such runarounds.  

Yet, the law, to be enforceable, should not be arbitrary and irrational.

And, therefore, pure logic requires that, in application to the presumption of knowledge of the law for law enforcement and the presumption of no knowledge of the law for choice of counsel and for the "practice of law" by unlicensed individual - that such arguments are inherently incompatible and thus irrational, void and cannot support laws, as a matter of due process of law. 

The government cannot cancel presumption of knowledge of the law - because then chaos will ensue, and laws will become unenforceable. 

But, the government cannot also maintain, as a matter of due process of law, that the same people who are presumed to know the law for purposes of being held accountable for its violation, are not presumed to know it enough to choose their own advisor about that law in and out of court, or that the advisor, who is also presumed to know the law, whether the advisor is licensed or not, is presumed to not know the law when he/she is not licensed to practice law (while what is the "practice of law" is not defined by statute).

It is time to point out that regulation of attorneys is conceptually unsustainable, not to mention unconstitutional, as depriving people of their access to court, aided by representatives of their own choosing - and it is high time for the government to recognize it, instead of beating around the bush and inventing half-measures that hurt rather than help bridge the "justice gap" caused by attorney regulation.