The dismissal of the Segarra retaliation lawsuit - did the judge have authority to accept the waiver of the judge's recusal?

Jake Bernstein of ProPublica reported that a federal judge in the U.S. District Court for the Southern District of New York, Ronnie Abrams, dismissed the retaliation lawsuit of a former bank examiner at the Federal Reserve Bank for failure to state a claim.  At the center of the controversy was Ms. Segarra's evaluation of Goldman Sachs which could have resulted in a downgrade in ratings for the bank and financial losses.  Ms. Segarra refused to "correct" her evaluation and was fired.  She sued, and Judge Abrams dismissed the lawsuit for failure to state a claim.


The interesting part is that, according to ProPublica, the presiding judge's husband represented Goldman Sachs, the bank which was at the core of the controversy, in his advisory capacity.


The judge reportedly disclosed that her husband represents Goldman Sachs only a day before the oral argument on the motion to dismiss, asked whether the parties wanted her to recuse and accepted their waivers of her recusal.


After the arguments, reportedly Ms. Segarra's lawyer sent out questions to the judge trying to verify the relationship of her husband with Goldman Sachs, but at that time the judge rejected that as too late, claiming that there is an appearance of judge-shopping by Ms. Segarra's attorney, dismissed Ms. Segarra's lawsuit and stated in her decision that "such an attempt to engage in judicial game-playing strikes at the core of our legal system", the "judicial game-playing" being Ms. Segarra's attorney's attempt to verify the judge's husband's relationship with Goldman Sachs after the oral argument.


Apart from the obvious question as to why Ms. Segarra's attorney did accept the judge's waiver of recusal, the fact remains that if the judge's husband did, in fact, had a contract for representation of Goldman Sachs, he had a material interest in the outcome of the litigation, and so did the judge who had a common financial interest with her husband. 


Thus the judge was disqualified from presiding over the case under 28 U.S.C. 455 (b)(4) (financial interest of judge or spouse) and 28 U.S.C. 455 (b)(5)(iii) ("judge or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding").


Moreover, 28 U.S.C. 455(e) is very clear that if the disqualification is under 455(b), the judge has no authority to accept waivers of her recusal. 


So, who is engaging in "judicial game-playing that strikes at the core of our legal system", Carmen Segarra and her attorney or the judge who disclosed the conflict of interest too close in time to the date of the oral argument on the motion to dismiss, so that the parties were enticed, in order to save time, to give a waiver of her recusal, and who accepted the waivers under circumstances when the statute governing judicial disqualification prohibited the judge to accept such waivers?


To me, actions of the judge present a huge problem.


The judge wields tremendous power over parties and lawyers.  A judge should strive to be squeaky clean and free of ethical conflicts in order to maintain in the public, parties and attorneys a firm belief in the integrity of judicial system and the rule of law.   If such belief is undermined, chaos will set in.   It is unreasonable at best to expect lawyers to believe in the image of a trustworthy judge when the reality tells the lawyer the opposite. 


Moreover, it appears that the issue of conflicts of interest in federal judiciary is more serious than just this one case.


At about the same time as Ms. Segarra's/Judge Abrams' case reported by ProPublica, according to the Huffington Post, the Center for Public Integrity discovered by comparing financial disclosures of federal appellate judges to caseloads of the same judges, that 16 judges did not disclose their conflicts of interest to parties, thus potentially compromising 26 cases.


The disclosures were made by the judges to the parties only after the Center for Public Integrity discovered the conflict and confronted the judges.


The federal judiciary reacted by attempting to claim "human errors" and using the usual heavy artillery of big numbers.  Specifically, the excuse was that the disclosed cases are just a minute fraction of the general caseloads of federal courts and do not represent how our federal judiciary operates.


Well, the Center of Public Integrity has limited resources to establish the full statistics of how our federal judiciary operates, and, in any event, when we are talking about access to justice, the "big numbers" argument fail


People who bring their cases to federal courts, and especially to federal appellate courts, which to most people are the courts of last resort, do that because of an acute necessity, an egregious civil rights violation, otherwise they would not have subjected themselves to the stress and expense of litigation.  26 cases compromised is 26 cases too many.  16 judges with undisclosed conflicts is 16 judges too many.  Each of those judges took an oath of office, and non-disclosure of a financial conflict of interest, respectfully, is a violation of that oath that must result in discipline.


I also firmly believe that to ensure accountability of the judiciary to the public, cases of judiciary discipline must be handled by the public and not by the judiciary who will certainly let their brothers escape unscathed without any discipline, no matter how bad conflicts of interests were.


In this case, reportedly the judges in question owned stock of parties appearing in front of them.  And that is "human error"?


Judges who filed disclosures of what they own with the court system somehow did not remember that?  I believe that such disclosures should be given directly to the parties of every civil case tried before the judge, as well as the judge's family trees and information regarding employment and ownership of property by close relatives in accordance with 28 U.S.C. 455 (b).


Only then effective enforcement of 28 U.S.C. 455 (b) and effective ensuring of impartial judicial review in federal courts will become a reality.


Notably, the 16 judges in the appellate federal courts were confronted not by attorneys, but by the Center for Public Integrity.  Had they been confronted by an attorney, the outcome for the attorney could have been depressing.  


Look at what Judge Abrams said in her ruling - it is, in her opinion, Ms. Segarra's attorney who did something wrong by questioning the judge's husband's connection to Goldman Sachs after the oral argument and not the judge herself in accepting a waiver of recusal which she had, under the reported circumstances, no authority to accept.


Welcome to the Orwellian world of the American judiciary.  And let us change that Orwellian world.  We the people are the masters of public servants, including judges and can demand their direct accountability to the public for violations of the law. 


Judicial discipline should be public, transparent and effected by members of the public with no connections to the legal profession. 


 As any fact-finders, if the public disciplinary panels need opinions of the legal experts, they will appoint such experts, but opinions of those experts will not be decisive or overruling the decisions of the public panels. Is that what the judiciary fears the most?  Direct accountability to the public? 

What exactly constitutes the practice of law in New York if top appellate judges who handle admission and disbarment do not know what it is?

I have experienced several events that made me wonder if New York state courts understand and correctly apply what exactly constitutes the practice of law in New York.  I doubt that courts even know what it is, from those episodes that I witnessed and am going to describe below.  It appears that, like with obscenity, "you know it when you see it", which to me is an unacceptable definition of something that can lead a person to a felony charge if not complied with.


Episode No. 1


I have been to a law school graduation in May of 2013 where New York State Chief Judge Jonathan Lippman gave a speech to the law school graduates.


Throughout his speech, Judge Lippman called law school graduates as "lawyers".  Judge Lippman's speeches at law school graduations are widely available on YouTube, and in those speeches he always addresses law school graduates as "lawyers".


In December of 2013, Judge Lippman said the same to another group of law graduates.  Watch the video of Judge Lippman's commencement speech, where at about the 4th minute Judge Lippman says:  "Graduates, you can now call yourself lawyers".  Really?  Before taking and passing the bar, being approved by the character committees and getting a law license?  And that is from the lips of the Chief Judge of the state of New York?


Yet, the law in New York is that you can only be a "lawyer" when you, first, took a bar examination which the law school graduates did not yet take, when you've passed through the character committee, which law school graduates did not yet do, and when you are licensed to practice law,  which obviously does not occur on graduation from law school.


Thus, the Chief Judge of New York State Jonathan Lippman addressed as "lawyers" people who were, as a matter of law, not lawyers.


Moreover, when you are not a lawyer as a matter of law, and you represent yourself as a lawyer, you can be charged with a felony. 


Does Judge Lippman know the law?  Why would he mislead the new law graduates this way?  What kind of example does Judge Lippman set to those young people?  That a judge of high enough rank can say anything from a pulpit and it will be all right and the captive audience should nod and be happy with what the judge have said and consider it the truth and the law?



Episode No. 2


On April 15, 2014 the New York Supreme Court, Appellate Division Third Judicial Department, has issued a press release announcing appointment of three new justices to the court.


In the press-release, there were short biographies and description of careers of the three new justices.


Provided below is excerpt from the press-release about the new Justice Christine Clark:







The press-release says that "Justice Clark began her legal career in 1995 with the law firm of Dreyer Boyajian LLP, first as a law clerk"...


Now wait a second.


New York State attorney directory shows that Justice Clark was admitted to practice law in 1997.


Dreyer Boyajian LLP where Judge Clark "started her legal career" as a "law clerk" before admission to the bar, was a private law firm.  New York law does not allow practice of law in private law firms without admission to the bar, such privileges are allowed only to public entities such as public defenders' offices, district attorney's offices etc.


Judiciary Law 90(2) provides as to suspended or disbarred attorneys:


"It shall be the duty of the appellate division to insert in each order of suspension or removal hereafter rendered a provision which shall command the attorney and counselor-at-law thereafter to desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another".


So, according to Judiciary Law 90(2), working as a clerk, and especially as a law clerk "of another" constitutes unauthorized practice of law(UPL) which was punishable in New York in 1995 as a misdemeanor, a criminal offense.


Now that we established that working as a "clerk of another" is considered in New York unauthorized practice of law, here is the question.  Was Justice Clark engaged in unauthorized practice of law in 1995 when she worked as a "law clerk" for a private law firm before her admission to the bar in 1997?


Problems with the press-release as to Justice Clark do not end there.


The press release goes on describing that in 1995, 2 years before her admission to the bar, Justice Clark worked as "a law clerk" in a private law firm, and "then becoming an Associate upon receiving her juris doctorate".


No let's go back to Episode 1.   Judge Lippman also considered, and erroneously so, that obtaining a juris doctorate, which is a degree with which people graduate from law school, is an equivalent of becoming a lawyer.  Judge Lippman, of all people, should know better.


Yet, apparently, Appellate Division 3rd Department harbors the same misapprehension and considers people who have juris doctorate to be qualified to practice law as "Associates", or associate attorneys, in private law firms, like Justice Clark did.


To do justice to Justice Clark, no pun intended, I do not know whether it is just a horrible press-release or whether Justice Clark started to practice law as an associate in a private law firm on receiving her Juris Doctorate but before admission to the bar in 1997. 


Yet, it is not what I do or do not know that counts, but what the appellate court announces to the world in its press release.  This court sets the law for 28 counties.  This court licenses attorneys.  At the very minimum it should know the law pertaining, once again, no pun intended, to the practice of law, and not announce such legal blunders in its press-releases.


Now, suspended and disbarred attorneys have Juris Doctorates, court do not strip suspended and disbarred attorneys of their J.D.s when the court takes their license.


Did the Appellate Division 3rd Department, by its press-release of April 15, 2014, now allow Juris Doctorate holders, whether they are or are not licensed to practice law, to practice law because it considered it proper to announce that Justice Clark started to practice as an associate attorney in a private law firm simply "on receiving her juris doctorate"?


Does the Appellate Division 3rd Department proof-read its own press releases?


Does the Appellate Division 3rd Department, which is one of 4 licensing agencies for attorneys in the state of New York, know what it is doing?


Is there a double standard where if you become a judge of the Appellate Division 3rd Department, your unauthorized practice of law is viewed with pride, is not considered a crime or even an ethical violation and is proudly announced in press-releases of the court, and if you are a suspended or disbarred attorney and you dare to work as an associate, you will be charged with a felony and contempt of court, and if you work as a clerk, much less a "law clerk", as Justice Clark did before admission to the bar, a suspended or disbarred attorney will definitely be charged with contempt of court and unauthorized practice of law?


Are we talking about the same practice of law?


Are there different definitions of what constitutes practice of law in New York for people of different social statuses?


Judging by Episode 1 and 2 above, it sure seems like that to me.

How to eliminate those big-mouth civil rights attorneys criticizing the judiciary. A recipe for New York judges.

Now, if you are a New York state judge and you need to eliminate a big-mouth attorney who dared to:

1. move to recuse you multiple times,
2. questioned legitimacy of your elections,
3. raised the issue of your conflicts of interest (prior representation of social services for 27 years in cases where the same social services appear in front of you as a petitioner in bench trials, and you assess their credibility);  reasonable attorneys know about that one, but wisely keep mum about it;
4.  investigated your background through FOIL requests,
5. raised issues of your improper behavior in court in the media,
6. complained about you to the Judicial Conduct Commission and asked to take you off the bench,
7. asked the New York State Attorney General to bring a quo warranto proceeding against you as a usurper of public office (now that was a good one, New York State Attorney General is your attorney and also appears in front of you against the big-mouth attorney, so did she really think he will choose to oust you instead of using your good graces in court) and, finally, when everything else failed,
8. sued you in state and federal courts.

What is a judge to do with such a pest?  Especially if what the pest is saying is the truth?


Here is a ready recipe prepared by joint efforts of Delaware County judge Carl F. Becker, Appellate Division 3rd Judicial Department, the U.S. District Court for the Northern District of New York and, of course, with the help of the multi-hat office of the New York State Attorney General who claims to protect the public from official misconduct, but is instead your legal protector no matter what you do to that public.

The chart shows that first you need to get assigned to the big-mouth attorney's court cases, otherwise how would you be able to sanction her?  That is a piece of cake because, with the current budget cuts, court clerks will be afraid for their jobs and will assign you where you tell them to assign you.


Disregard the big-mouth attorney's request to step down because of your bias.  She will have no recourse if you tell her to her face that you are not biased, even if the entire world knows for a fact that you are.  What is she going to do?  Complain to the Judicial Conduct Commission?  Those guys will never discipline you, you know that.  They will sent you her complaint, and you will be able to get even, so don't you worry.


Hide all of your conflict of interests and knowledge of extrajudicial facts, because - how will she find out if she can't?  And if she tries, you'll sanction her.


Don't worry if she would bring a motion to recuse.


Even though New York state law requires you to step down where your impartiality may be reasonably questioned, and the same is required by constitutional federal law, New York state courts allow you to be that "reasonable person" deciding whether you are biased or not.  And how can you consider yourself (YOURSELF!) biased?!  No way.


Then, you sanction the big-mouth attorney for frivolous conduct, order her to pay a couple/10/50 thousand dollars so that she would shut up and crawl into a corner somewhere, and then you send your sanctions to the attorney disciplinary committee.


The big-mouth attorney may, of course, sue you in federal court for retaliation, but you know she will fail because your malicious and corrupt acts as a judge are protected by judicial immunity.  Your brothers in federal courts created that doctrine for you, so you can do whatever you want to the big-mouth attorney and she cannot do anything to you.  Isn't that what makes your job so great?


The big-mouth attorney may, of course, appeal your sanctions, but she will fail, first, because a judge will not pick out another judge's eye, so to say, and appellate judges are your brothers, and also because appellate courts have "tunnel-vision" and will not look outside of the record of one sanction when you imposed 3, and thus the pattern of your misconduct will be unreachable, and the courts will affirm the sanction. 


One correction, the appellate court will exercise their "tunnel-vision" "it is outside of the record" point of view only when the big-mouth asks for protection, the same "tunnel-vision" review does not apply to you. 


You can gather dirt on attorney from as many sources outside of the record as you like and present it as an unsworn witness or through unidentified hearsay sources, your appellate brothers will still accept it.   More points for you and against the big-mouth attorney.




After the federal court dismisses the big-mouth attorney's lawsuit for retaliation, you can impose a couple more sanctions on her, for good measure, so that your previous sanctions stick by weight of sheer numbers.  This way you will make sure the big-mouth attorney will be disbarred (or at least suspended) for sure and will not darken your horizon while you are on the bench. 


And if she will try to make any motions to vacate your sanctions, now based on a pattern of retaliation from different proceedings, be assured that at least some of your lower-court brothers will feel for you and will not allow the big-mouth attorney to bring those motions.  To claim a judge did something wrong!  The gall!


Once the big-mouth attorney has been safely stalled on all of her efforts to undo your punishment for impertinence, you can safely make sure that all of your sanctions have reached the disciplinary committee and took root there, sit back and enjoy the slaughter of the big-mouth attorney who dared to complain against you and especially sue you.


And remember - those folks on the disciplinary committee are practicing attorneys who may happen to appear in front of you one of these days.  They will not dare to cross you.  They have their own licenses to think about.  And for them, eliminating one competitor will have its own advantage.  So more points for you here, too.

Now that you are sitting back and enjoying the view of the slaughter of that pesky bad-mouth attorney from a distance - the last gift to you to make your leisure even more enjoyable.    Always listen to the classics, it's an absolute treasure of advice on necessary subjects!  And the last chords of the performance (I meant the disciplinary proceeding against the big-mouth attorney) will be such sweet music to your ears!

And, so you do not forget how to do what you just did to one big-mouth attorney, in the unlikely event another one dares to crawl out and raise her big-mouth head, here is your recipe of how to get rid of those pests.  Always keep it close at hand. 

Let's start experimental deregulation of the market of legal services and close the "justice gap". It is immoral for lawyers to serve only 20% of the market and block service for the other 80%.

I have referred in this blog to recurring statements of New York Chief Judge Jonathan Lippman to various law school graduates that 80% of litigants in New York courts cannot afford a lawyer, and that we can just as well close our courthouses if we cannot ensure "access to justice for all" (A2J4A).


Yet, it is obvious mathematically that when 4/5 of the market is not served, A2J4A is not possible unless the legal services industry is deregulated.


New York did the opposite, in 2013 it upped the ante for unauthorized practice of law (UPL) by making it an E felony, up from a misdemeanor it was before.


When will the American and the New York legal profession get it that it is working against the global trends toward deregulation of the market of legal services?  Legal services have been deregulated in Great Britain; deregulation started in Arizona, deregulation, at least through such cheaper alternatives as LegalZoom, has started in South Carolina.


Yet, let me ask you a question, why state bar associations are up in arms against LegalZoom, trying to prevent people to get cheaper alternatives to services they cannot afford anyway? Is it moral for the legal profession to block opportunities for people to receive any help as opposed to no help at all because they cannot afford it?  The legal profession is not going to cover the now un-served sector of the market (4/5 in New York, according to Judge Lippman!) by pro bono services.  Yet, it acts as a dog in the manger preventing non-lawyers from serving people would not serve for lower fees anyway.


Everybody knows that real estate transactions are done by attorneys' assistants, clerks and even secretaries.  That's not unauthorized practice of law?  And isn't it true that those assistants and secretaries may have a better understanding as to how to do real estate transactions than their lawyer bosses do?


The same can be said for any other part of the law, possibly save for litigation, but even then.   Law schools do not teach litigation so much as they teach how to pass the bar exam, and thus stuff students on those courses.  Litigation skills comes later, with experience.  Any intelligent person with or without a college degree can self-teach evidence, procedure and litigation skills.  It is not rocket science and lawyers should not pretend to have it appear like rocket science.


Where the overwhelming majority of the market is un-served because prices are too high and people cannot afford them, and where the service providers are not in any hurry to drop prices in any foreseeable future, and where legal services are vital to ensure people's constitutional right to access to courts, the solution should be a no-brainer:  deregulate, at least on an experimental basis, in one county, one judicial district, and take the statistics.


The public can be protected through information, the public can also do its own homework verifying whether non-lawyers possess the necessary knowledge to provide legal services in court.

Adult and even child volunteers are allowed to participate in clinical trials of medicines with unknown safety, which can potentially kill those volunteers.  
The U.S. Food and Drug Administration even encourages parents to enroll their children into clinical trials, which may be both potential beneficial and potentially fatal to the children.
All that it takes is the signature of informed consent and assumption of risk, and for chikdren vokunteers who are legally incompetent to give such a consent for themselves, it is allowed for their parents to do that on their behalf.   In case of a severe side effect, it can lead to the volunteer's physical injury or death, and yet it is legal.


Why is it different in the field of provision of legal services?  Who can state with a straight face that a risk of losing one's life is lower than the risk of losing one's civil case, or even a criminal case in a no-death-penalty state?  Why cannot well-informed adult volunteers participate in an experimental pilot project allowing anyone who the volunteer gave a power of attorney to represent their interests in court?

Doesn't New York have judges in local town and village court, who are not attorneys, who may have no formal education at all, but who handle jury trials, and New York allows it?  So, why it is a felony for a non-lawyer to represent a criminal defendant in a trial where a non-lawyer presides over the case, rules on admissibility of evidence, on motions, gives instructions on the law to the jury and sentences the defendant?

Why not allow representation in court by lay individuals?  How much more dangerous can it be than a non-lawyer judge sending a person to jail for up to a year, or more if terms are consecutive? 

What volunteers in an experimental pilot program can do is, check out on themselves a new model of provision of legal services which may close the "justice gap" and solve the civil rights crisis that now exists in the U.S. because much needed legal services are not affordable? 

Those volunteers may chose their own representative in court, let's say, an individual they actually trust to act within their best interests, within the bounds of the law.  Why cannot people be allowed to do that, at their own risk, on an experimental basis, when the alternative is having no representation in court at all?

The experimental program should run for a time allowing for adjustment of all parties to the new setup.  Statistics should be professionally gathered and analyzed for customer satisfaction and comparative outcome, as compared to pro se representation.

If experimental model proves successful, it can be gradually expanded and finally result in complete deregulation of legal services, which may benefit the public tremendously.


Deregulation will cover the un-served 4/5 of the market of legal services, will lead prices for such services down to their true market value, create jobs and raise tax revenues. 


And as to horror stories, the proof of the pudding is in the eating.  Arizona does not have horror stories about non-lawyers providing legal services, any more than statistics of attorney malpractice, and the same is true for the U.K.


The government should get out of the business of regulating legal services.  It is unacceptable to have 4/5 of demand un-served in an important government-regulated sector of economy.