American Inns of Court revisited - additional "creative" ways judges invent to "regulate" the judiciary system without authority from the public and without public oversight

I have written in this blog about the potential impropriety of judges and attorneys meeting behind closed doors through the American Inns of Court, a private association with secret membership where attorneys sponsor judges’ monthly lavish meals, and, according to scarce information available about this organization, at least some sections of this organization sponsor national and international travel for judges and their family members.

I have also written about the devastating consequences for litigants where a judge was presiding over cases where her Facebook friends appeared as attorneys – Facebook friends who the judge openly acknowledged on her personal Facebook page open to the public.

I have written in this blog that I have brought a federal lawsuit to verify membership of judges who presided or are presiding at this time over my personal lawsuits, in the American Inns of Court, or in any other organization with secret membership where judges and attorneys have an opportunity to communicate behind closed doors, without participation of or oversight from the public.

I have also written that my federal lawsuit, where the U.S. District Court for the Northern District of New York, its Chief Judge, and several of its District Judges and Magistrates were named as parties, in their official and individual capacity, dismissed the case against itself before the lawsuit was served, instead of transferring the case to another venue, as was proper and as I requested.

In fact, one of the state judges who was sued through that lawsuit, who did receive the federal form requesting a waiver of service, was astonished when he tried to make a disclosure about the federal lawsuit in two motion hearings and heard from me that the lawsuit was dismissed before he was actually served.  To him, such a procedure clearly appeared as irregular, same as to me.

To me, the sua sponte, ex parte dismissal of my federal lawsuit, by the court which is a defendant in that lawsuit, shows to what extraordinary steps the judicial system will go in order to protect their own members.

My federal lawsuit was covering all organizations where judges and politically powerful attorneys had opportunities to meet behind closed doors, those I knew about and those I did not know about.

Now I introduce to the public yet another organization where membership is not transparent, goals are not transparent, activities are not transparent and authority upon the organization exists and is acting is not transparent, but the organization exists, is powerful , “advises” state and federal courts and is comprised of state and federal judges and members of the legal profession whose interactions within the organization are not subject to public scrutiny.

I did not find any published information as to what is the source of power in State-Federal Judicial Councils, I did not find any registration of such councils as business entities or associations, I did not find lists of members of such councils, except for the occasional press-releases where a powerful law firm would proudly announce that one oftheir law partners has been “appointed” into an Advisory Committee of such acouncil. 

Who appointed them – nobody knows.  But - these attorneys are "advising" federal and state judiciary.  About what - also nobody knows.  On what grounds - also nobody knows.

How the appointment happened, what is the procedure of appointment, what is the procedure of advising the state and federal judiciary before whom attorneys continue to appear in fee-generating cases – nobody knows or can check. 

And, lo and behold, such councils have as members of “advisory committees” powerful attorneys who appear in front of both state and federal judges in court proceedings while “advising” those same judges behind closed doors.

So, since creation of such councils in 1972 no court decision in this country was free from the taint of whether it was done by a judge who was “advised” by the counsel who appeared in front of him - or who participated in a “state-federal judiciary council” behind closed doors where the judge had an opportunity to talk with “state law officers”, including parties to litigation.

Such “councils” provide a great opportunity for corruption and/or undue influence on judges behind closed doors by attorneys practicing in front of those judges, or between judges and governmental defendants in civil rights cases. 

Yet, same as in the case of the American Inns of Court, the State-Federal Judicial Councils are proclaimed to be “quasi-public” entities working toward more “efficient” system of justice, and toward “better serving” the American public.

As I wrote above, my federal lawsuit which was supposed to take the veil off such ventures and to verify just in what kind of relationships certain judges and certain attorneys are, was dismissed by the same court which was the defendant in the action.  

It is obvious that neither a person nor an entity has a power to dismiss a lawsuit against itself, yet, that’s exactly what happened.  What remains to me is to try to verify what is available from open sources – and to make my findings public.

Same as the American Inns of Court, the idea of State-Federal Judicial Councils was introduced by a U.S. Supreme Court. 

So far, I have found only one source describing the goals of the State-Federal Judicial Councils, a law reviewarticle written by Jack B. Weinstein, the Chief Judge of the U.S. DistrictCourt for the Northern District of New York at the time the article was written ( “Coordination of State and Federal Judicial System” , St. John's Law Review, Issue 1, Volume 57, Fall 1982, Number 1, Article 1).

Judge Weinstein claims in his law review that “… the organization of state-federal councils blossomed after Chief Justice Burger suggested their employment as a method of reducing the tension created in part by increased federal constitutional safeguards that affected state judicial and criminal procedures” (citations omitted, emphasis added).

At the very beginning of the law review article Judge Weinstein announces  his view that the power to coordinate state and federal judicial systems belongs to:

• state and federal legislators,
• executive agencies, and, in the case of criminal matters,
• to prosecuting attorneys and police personnel.

Now, to me as a criminal defense attorney and a civil rights attorney, such a view, especially coming from a Chief Judge of a federal trial court, presents a big problem.

Prosecuting attorneys in criminal matters are attorneys for a party appearing before the court.

Police personnel, if it appears in criminal matters, appears only as witnesses in criminal proceedings.

Thus, Judge Weinstein, the Chief Judge of a U.S. District Court which handled death penalty cases, publicly announced his view that he actually thought that attorneys for a party and witnesses for a party have the power to coordinate the federal judicial system.

I do not know how many criminal cases Judge Weinstein presided over while being a judge – but I do think that such views require reconsideration of every one of such cases where the criminal defendant was convicted.

Judge Weinstein makes further comment, that “cognizant of limitations [of power of enumerated coordinators” “courts should take whatever steps possible to ensure that the two systems properly mesh”.

What constitutes “proper meshing” between the state and federal judiciary, is surely not reflected in the U.S. Constitution, but that does not deter Judge Weinstein.

Judge Weinstein states that “[t]he primary responsibility for better coordination rests with the legislature since it can provide a more rational division of jurisdiction and substantive law.”  

Judge Weinstein has what appears to be a “functional” rather than “constitutional separation of power” approach to the issue of coordination of the judicial system.

Judge Weinstein goes on by stating that “[t]he executive branch, moreover, particularly prosecutors and police, must cooperate in allocating prosecutorial roles in order to prevent a breakdown of both federal and state systems of criminal justice.”  What this means, nobody knows. 

How a public prosecutor, an elected public official in New York State and an appointed public official in federal agencies, whose duty is to prosecute crimes is supposed to “cooperate” to “prevent a breakdown of both federal and state systems of criminal justice”.

Why would a state prosecutor, once again, an elected public official usually elected by the voters of a particular county, “cooperate” in consideration of any goals other than the goal for which he was elected, prosecuting crimes, is anybody’s guess.

Yet, that prosecutors “must cooperate” in view of such a goal, is Judge Weinstein’s conviction that was publicly announced through a law review article in support of activities of State-Federal Judicial Councils.

Furthermore, while being sworn to uphold the U.S. Constitution which does not allow federal judges to legislates, Judge Weinstein, the Chief Judge of the U.S. District Court for the Eastern District of New York at the time the article was written, states the following: “[o]ccasional decisions [by federal courts] that slightly modify the law so as to eliminate sources of friction between state and federal law officers also may be helpful”  (emphasis added).

It is interesting to mention that in civil rights actions the “state law officers” are often defendants in front of federal “law officers”.  When that is occurring, Judge Weinstein’s suggestion that the federal judiciary should legislate from the bench to eliminate “sources of friction” with parties appearing before federal judges suggests that not only criminal convictions where Judge Weinstein presided, but civil rights lawsuits decided for “state law officers” where Judge Weinstein presided, should be reviewed and verified as to whether Judge Weinstein applied in those lawsuits is policy to “slightly modify the law” in order to “eliminate sources of friction” with state defendants, or, in other words, acted with unconstitutional a bias which was part of his policy.

Judge Weinstein presents the unconstitutional “state-federal coordination” of the judicial systems as, of course, being done to better serve the American people. 

“Coordinating” state and federal judicial systems behind closed doors with the party defendants in civil rights lawsuits and claiming that prosecutors, attorneys for a party, are coordinators of state and federal judicial systems, have nothing to do with judges’ constitutional duties.

How acts in violation of the U.S. Constitution and state Constitutions are supposed to better serve the American People, is also anybody’s guess.

Yet, what strikes me is the arrogance of the judiciary to continue this “coordination”, behind closed doors, while dismissing lawsuits against itself challenging constitutionality of such coordination and having the audacity of claiming that the judiciary can actually change the law in order to “eliminate sources of friction” between state and federal courts – even when state courts are defendants in federal civil rights actions.

If “eliminate[ing] sources of friction” between “state and federal law officers” are the function of the federal courts, the courts carry out that function beautifully.

Federal courts increasingly dismiss the majority of civil rights lawsuits as “frivolous”, or “failing to state a claim”, or for lack of specific pleadings despite the fact that federal rules of procedure do not require specific pleadings in a civil right lawsuit, or for any other judicially invented reason.

I bet a state defendant in a federal lawsuit may have a lot of “sources of friction” with the presiding federal judge.

But, for the federal judge to actively seek to “eliminate” these “sources of friction” is called bias – at the least.  And such bias requires the judge who holds such views to step down from any cases where state “law officers” appear in front of such a judge. 

If such bias amounts to a policy, and to a policy of the entire court, as it appeared to be in Judge Weinstein’s court, based on the fact that Judge Weinstein was the Chief Judge of a large federal district court in New York State, such a policy spells out a crisis of both the state and the federal judicial systems.

It appears that for federal, as well as state judges, the constitutional oath of office, once taken by a judge, means absolutely positively nothing, where judges gave themselves immunity from suit for malicious and corrupt behavior on the bench, where judicial discipline is non-existent, and where judges openly profess as their goals “eliminate[ing] sources of friction” with “state law officers” which obviously includes defendants in civil rights lawsuits in federal court.   

Thus, instead of following the mandates of the U.S. Constitution that judges are sworn to uphold, it appears that all that judges seek is to (1) clear their dockets and reduce their own workloads;  (2) protect themselves and the state “law officers” from any kind of liability;  (3) eliminate any possibility of stepping on the toes of the state “law officers”.

In my humble opinion, such goals are not even close to serving the American people through the judiciary systems.

There is no need for “quasi-public” “gray cardinal” “co-ordinators” of the state and federal judicial systems.

The public must be assured that judges presiding over court proceedings have no ex parte communications, involvement with or potential for influence over them through any social networking or civic organizations.

I have a firm belief that State-Federal Judicial Councils and their mysterious “Advisory Committees”, same as the American Inns of Court, while declaring service to the public, taint integrity of judicial proceedings with their existence and secret proceedings outside of public oversight.

 

The whole country of lawyers is paying money to learn the "pet peeves" of judges for an ethics and skills credit - and that is called the rule of law?

Recently, I wrote about a Continued Legal Education (CLE) seminar where I was invited and where, for $359, I was supposed to be given credits for skills and ethics for learning "pet peeves" of judges and exploring judges preferences and whims in the courtroom "without jeopardizing clients' cases".


If one follows declarations of presumption of integrity of the judiciary, there is nothing jeopardizing my clients if I simply walk into the courtroom without knowing the judge personally, without knowing his or her whims, and fully expecting the judge to simply follow and apply the law.


It is interesting to mention that the post about the "pet peeves" of judges has been one of the 10 most read posts on my blogs, which is determined automatically and without my control, simply by the number of views of the posts.


Recently, I referenced that blog and followed the link to the seminar that was offered to me.  The link led me nowhere.


I went to the company which offers those CLE seminars around the country and ordered a word-search as to what the "judges want you to know".   The search returned a staggering 1132 seminars around the country, where attorneys around the country were offered to pay and receive skills and ethics credits for, basically, learning how to brown-nose a judge.


My other major concern was that judges actually participated in the panels, which raised at least the following questions:

• are judges being paid for participation?
• If "yes", how much?
• doesn't it create a conflict of interest for the judges to see that attorneys who attended the seminar paid to learn about their "pet peeves"?
• Shouldn't the seminar rosters (attorneys attending) be made public, so that other attorneys and litigants may consult those lists and decide whether they want to recuse a certain judge or disqualify a certain attorney because of an appearance of impropriety, because it appears that the attorney paid the judge to learn about his or her "whims" in the courtroom and thus can expect a favorable treatment from the judge?
• especially in view of budget constraints in the court system, who allowed the judges who attended the seminars to be present there during taxpayer-paid time?
• how did the judge's absence from the courtroom while the judge was instead present at the seminar affect the judge's calendar and rights of litigants over whose cases the judge presides?

Once again, this problem is pervasive, such seminars are happening around the country.


Remember - attorneys can be admitted to the bar and allowed to practice law only after they learn the law in an ABA-accredited law school, where they take Constitutional law and ethics as mandatory courses, and then must pass rigorous bar exams.


Yet, an attorney will still jeopardize his client's case if he comes to a court room without knowing a particular judge's personality and does not cater for the judge's whims?  Maybe, regulation of the legal profession is then unnecessary because all that is needed is not knowledge of the law, but knowledge of a judge's, available for money through a seminar?

The elevated duty of appellate courts at the time of trial courts' self-forgiveness

With increased caseloads in courts, on the one hand, and cut budgets, on the other, it is no surprise that many court cases are decided in a rush.


While every litigant is (theoretically) entitled to due process of law, diligent review of his or her case, application of the law and the law only, and not of judicial whims, any attorney or party who has ever went through New York court system knows that what the judicial system actually delivers and what it is expected to deliver are two different things.


Time and again I was told as an attorney, during off-the-record conferences, of course, that my client "had better settle, or else".  Sometimes we settled, sometimes we didn't, but the incentive and the fear put into litigants by judges, and unnecessarily put, is real.  I do not believe a judge even has a right to threaten harsher determinations against a litigant if the litigant refuses to settle.


"Or else" meant the so-called "exercise of discretion" in such a way that my client will lose more than he or she could afford to lose.


This way innocent people are coerced into guilty pleas, parents who did not neglect their children are coerced into saying they did, and agreeing to years of abusive and humiliating "supervision" by social services...


And that was happening because the judge, who was not supposed to prejudge the case before all evidence was in, "theorized" that in the event that my client is convicted/ found liable for child neglect, the judge will then convict him for a longer number of years, as opposed to probation and being free, or, in the case of child neglect, a person's child will be kept in foster care longer and will likely be adopted out while the parent is appealing the case and spending his last penny on the appeal.


Moreover, there are a number of trial court judges in front of whom I appeared who view their discretion so broadly as to encompass open disregard of the law and the record.


Their remedy for litigants whose rights judges blatantly violate by openly not following the written law, the case law or the record of the case - "take it up" (appeal).


Of course, what was pled (settled), cannot be appealed - but that is the risk litigants take when settling.


If they do not settle, not many of litigants appeal adverse court decisions - usually because (1) an appeal is prohibitively expensive;  (2) overwhelming majority of appeals are affirmed.


Because of a cavalier attitude of the lower court to disregard applicable law and contents of the record, and because of the high costs of appeals involved, I believe that the appellate courts owe litigants an elevated duty of care - which must have some mechanisms of enforcement.


Instead, appellate judges in New York do not even sign their decisions, a clerk of the court does, and there is no assurance that the judges even decided those cases instead of allowing law students/ interns/ law clerks to do that for them, as quickly as possible, and with a directive to affirm as many cases as possible, even if that means further misrepresentation of the record and further disregard of the law.


I believe that new legislation should be in order imposing a higher responsibility upon appellate judges, higher requirements to their qualifications, requirements to their presence and holding offices where the appellate courts are located, and providing for enforceable and transparent public discipline if the appellate courts, the last hope for many litigants to resolve their cases, blatantly disregard their duties and rule as if they never read the case - which happens often, as any appellate attorney knows...

On the virtue of anonymous case-handling in court

I have posted in this blog enough examples of how judges openly misrepresent the record and openly refuse to follow the law in order to rule for politically connected attorneys or to punish attorneys and parties they personally dislike.


I have more documents to be posted in the near future on the same subject.


At this time, I wanted to throw into the "marketplace of ideas" just a simple idea - wouldn't it be better if court cases are decided the same way as SAT scores or bar exam scores are decided - where the applicant does not know the identity of the grader and the grader does not know the identity of the applicant?


This way, there is no incentive for the grader to appease a politically powerful applicant or to go against an unpopular or an unattractive litigant?


It is simply an idea.


I know it is imperfect.


I know it would require much to be implemented.


I know it has flaws.


But - wouldn't it be nice to eliminate the incentives to exert political influence on the court and to eliminate nepotism, favoritism and corruption from the court system, or at least to make a major step in that direction?


Of course, there will have to be public oversight over such a system, so that assignments of numbers to cases and graders to cases are truly anonymous and are not "helped" from the within.


There will have to be special rules and adjustments made then to evidentiary rules, rules pertaining to witnesses and jury trials.


But - something needs to be done with the pervasive favoritism in the court system which makes the claim that this nation is ruled by "the rule of law" a joke.

To law students - how sound is your investment in legal education?

Whenever one makes a major investment, one should know the pros and the cons before making it.


I am not making any startling revelations by saying that investment in a legal education, especially with a view to practice law, is an investment of a lifetime.


Not only the prospective law student denies himself or herself other opportunities in the workforce for 7 years (4 years of college and 3 years of law school), but legal education is increasingly expensive, while the employment market is increasingly tight.


On top of that, a law license can be revoked based simply on lawyer's criticism of a judge, and most defenses that such criticism is actually a constitutionally protected activity are rebuffed and rejected by the judicial system.


Sometimes there are cases where such criticism cannot be avoided - not if the lawyer wants to remain loyal to his oath of office, to maintain and uphold the Constitutions and the laws of the State he or she is practicing in and of the United States.


To make a motion to recuse in most states exposes the lawyer to the risk of retaliation from the judge.  If the judge retaliates for a motion to recuse, he is virtually untouchable, either by the virtually non-existent judicial discipline, or by a civil lawsuit because of the judicially created concept of absolute judicial immunity, even for malicious and corrupt acts.


Law students are not being told that, simply by doing their jobs and maintaining their oath of office they may set themselves on a path to destroy their careers, reputations and investments of a livelihood - because if a law license is lost, the former lawyer will, most likely, not be employed in any position of trust or be licensed for any other profession.


All that training, all those skills, all those endless hours of study and research, both in law school and in law practice, all the money invested in the legal education and post-graduation training, all those hours that you have taken from yourself and your family to train yourself to be a good lawyer will go down the drain because a lawyer, at one moment, stepped on the toes of a judge, most likely, rightfully criticizing that judge for mistakes, bias and lack of competence and integrity.


Just think about it - it takes well over a hundred thousand dollars to get a legal education.


It takes one corrupt or biased judge who developed a grudge against you - because you were doing your job -  to take away a law license and eliminate all the benefits of that legal education.


You will have no right to appeal when you lose your license.


You, most likely, judging by statistics, will never get that license back.


Imagine yourself with a spouse, young kids to support, a mortgage, car and student loans (including student loans from law school) - thrown out of your profession for criticizing the judge, on behalf of a client.


What will you do knowing that your investment of a lifetime lies in the hands of, possibly, a despicable, immoral and biased judge?


Will you still criticize him or her, as your oath of office may require, in order to uphold the laws and the Constitutions of the state where you are going to practice and of the United States?  Or will you start scraping and bowing - as the majority of the legal profession does - in order to keep feeding your family?


Do you really want to spend your life bowing to dishonorable people on the bench, simply because nobody told you when you were about to spend that money on your legal education that your investment may disappear because of a decision (possibly, incorrect) from one judge who did not like your criticism?


Do you want to spend your lifetime avoiding the so-called sensitive topics in the courtroom, even when your clients' case requires addressing such topics head-on?


Do you want to spend your life catering to people on the bench who came there not because of their skills, but because of their political connections?  In a system where such catering became so rampant and such an accepted practice that continued legal education courses are openly offered to lawyers, to pay money to learn how to cater to specific judges better?


The links in the blog about the CLE seminar teaching about judge's "pet peeves" are now leading to nowhere - possibly, because of my blog and its high readership.   Unfortunately, by removing the content about this seminar from the web, the practice of catering for the "pet peeves" of judges at the cost of preserving your law license is not removed.  As I see it happening every day in the courtroom, this practice thrives and constitutes the way of life for many, if not the majority, of lawyers. 


Of course, some people thrive in the environment where they can bow, scrape, cater and brown-nose to the high-and-mighty of this world.


A law student simply has to be forewarned about the real strings attached that come with his or her investment into the legal education - before he or she makes that investment.  In my view, that is what any law school luring new students must do, and that is what law schools - heavily supported by donations from the legal profession that needs new recruits and free or nearly-free interns to get their costs down - fail to do.  At least, my law school never really made it clear to me that my investment into the legal education may hinge upon my criticism - or lack thereof - of a judge.


I wouldn't call it a sound investment - and I think that law schools must teach law students about what they are actually going to face in the real world of practicing law, including the fact that their livelihood, as well as the livelihood of their families, is completely dependent on arbitrary or retaliatory actions of the judiciary.

Attorney disciplinary proceedings - a way for prosecutors to get rid of competition?

In New York, Appellate Division 3rd Department, the attorney disciplinary committee consists of 21 members, 18 out of 21 are practicing attorneys.

How tough the market for legal services in the country really is may be seen in the news of an attorney who was turned from a paralegal position as "not meeting the minimum requirements" - for a paralegal.

Now, the members of the disciplinary committee, including attorney members, are unpaid.

Their income, unlike the income of other public prosecutors, does not come from a salary, it comes from their practice of law.

In other words, the disciplinary prosecutors depend on their practice of law for their livelihood, and in that practice of law they are direct competitors to attorneys they investigate and prosecute (for free) on behalf of the Committee.

In my husband's case it already resulted in the situation where three attorney members of the committee had pending cases with Mr. Neroni while prosecuting him, and one attorney, John Casey, chose to not prosecute attorneys who Mr. Neroni turned in for John Casey's prosecution, accept those attorneys as paying clients and instead prosecute and disbar Mr. Neroni, the whistleblower against those paying clients.

So, the fight for the shrinking market of legal services causes unpaid attorney members of the disciplinary committee to accept financial incentives in exchange for a certain exercise of their prosecutorial discretion and a certain outcome of a disciplinary case.

At least, what it appears to be.

And the public is supposed to be protected by such process?  What a travesty.

The rules of law for sons of judges - and the billing practices of sons of judges which so far escaped public review

Recently, I participated in a hearing for attorney's fees against me and my husband in the Mokay saga.

 

Our alleged fault was to make a motion to vacate the sanctions imposed upon us by the previous presiding judge, Judge Becker, after we sued the judge twice, in state and in federal court.

 

Previously, the federal court refused to reach the merits of the issue whether such sanctions were imposed in retaliation based on the concept of judicial immunity/lack of jurisdiction; and the Appellate Division did the same based on the claim that the pattern of sanctions was from other cases and thus outside of the record of direct appeal and the Appellate Division similarly lacked jurisdiction to review it.

 

So - I made a motion directly in the Mokay case and incorporated that pattern in that motion, so that it would be part of the record on appeal now.

 

Yet, for the judge who recused from presiding over a related case, but is nonchalantly presiding over the Mokay saga, and who is consistently ruling in favor of the plaintiffs where there is no way to do it, decided that the motion was somehow frivolous and ordered a hearing on attorney's fees.

 

Ok, I come to the hearing on attorney's fees.   Normally, a party/attorney against whom attorney's fees are sought, has a right to receive a written application for such fees beforehand, in order to be able to research the legal grounds and the factual issues pertaining to the claimed fees.

 

I received nothing in advance from Mr. Harlem.  That was the same Richard Harlem whose prior shenanigans I described here and here and who, together with his now late father (the retired Supreme Court Justice Robert Harlem, the former Chief Judge of the 6th Judicial District) have escaped responsibility by a clear and shameless trick of hiring the prosecutor's firm who was supposed to investigate and disbar them.

 

So, I received nothing from Mr. Harlem in terms of application for attorney's fees before the hearing.

 

I come to the hearing, the hearing starts, and THEN Mr. Harlem seeks introduction into the evidence of his attorney affirmation and billing statement.  I object and ask for a reasonable adjournment to review the written submission of Mr. Harlem.  Judge Kevin Dowd overrules me by stating to me that I had a notice of the hearing and the hearing will proceed. 

 

Of course, Judge Dowd came to Delhi, NY from Norwich, NY over the mountains and did not want to come another time - but that should not be a legitimate reason not to give me a reasonable time to prepare for the hearing, should it be?

 

Judge Dowd simply tells me that I have a right to "ask Mr. Harlem questions".

 

Mr. Harlem testifies under oath, I start crossing him and then simply tell the court that I need to be given additional time to at least read the affirmation/billing statement to be able to intelligently ask these questions, otherwise it is a complete ambush.  

 

I am given 15 (!) minutes to read Mr. Harlem's application for attorney's fees.  That's all Judge Dowd thinks I need to prepare for a slap of legal fees from Mr. Harlem.

 

Then, under cross-examination, the following interesting things start to transpire.

 

1/  Mr. Harlem does not know whether he did or did not file the original of the retainer agreement and statement of his clients' rights signed by his clients, in compliance with 22 NYCRR 1400.  The case he is enforcing is the contract to make a will out of a judgment of divorce, and 22 NYCRR 1400 applies to all enforcement actions of the judgment of divorce.  In New York, if an attorney failed to file a retainer in a case like that in a case requiring such a filing, and a specific retainer at that, specifically showing consent of the clients on multiple issues, the attorney who failed to do that is not entitled to ONE PENNY of legal fees from his clients - and, of course, if he cannot charge his clients, he cannot charge opponents of his clients.

 

Mr. Harlem is mumbling that he is not sure whether such a retainer was or was not filed with the court.  I know it was not.  I ask the court to take judicial notice of all proceedings and filings in the case.  Judge Dowd says it is irrelevant, it is not a divorce proceeding.  22 NYCRR 1400 does not apply exclusively to divorce proceedings, but also to any enforcement proceedings of judgments generated by divorce proceedings, and this is clearly such an enforcement proceeding.

 

So - Mr. Harlem has failed to file a retainer agreement in an action he filed 7 (seven !!!) years ago, where the only relief sought is his legal fees.  Thus, it is pretty clear as a matter of law Mr. Harlem is not entitled to any fees whatsoever.  Right?  Wrong!  It is a son of a judge, and we are dealing with Judge Dowd who was dreaming of urinals built in his honor by a law school during a divorce proceeding.

 

Judge Dowd rules 22 NYCRR 1400 does not apply and lets the proceedings go on.

 

2/  I ask Mr. Harlem whether he was ever investigated by the New York State Attorney General for inflating legal fees.  I know he did, and he knows he did, and here you can see the actual document, NYS AG's "Objections to account" where the New York State Attorney General has stated, item by item, exactly how Richard Harlem, together with his father Robert Harlem, inflated their legal fees.

 

In answer to my question Mr. Harlem first objects to the relevancy of my question.  My question is, of course, relevant because (a) we are in a hearing where Mr. Harlem asks to award legal fees to him and his clients;  (b) Mr. Harlem has already asked Judge Dowd to take judicial notice of the case where NYS AG raised that issue.  So, I simply asked Judge Dowd to take judicial notice of proceedings he already took judicial notice of at Mr. Harlem's request previously.  Judge Dowd agrees to take judicial notice of the Blanding case.  

 

Mr. Harlem then says - under oath - the word "No", and the judge cuts off my further questions by saying - Mr. Harlem said that no, he was not investigated by the NYS AG.  I am recalling this from memory, I ordered a transcript and then I will be able to show exactly how it happened.

 

So - there are "Objections to Account" by NYS AG in the Blanding case, Mr. Harlem denies ever being investigated by the NYS AG for inflating his legal fees, under oath, the presiding judge takes judicial notice of the Blanding case, together with the Objections to Account, and still rules for Mr. Harlem, without imposing any sanctions on Mr. Harlem for lying under oath. 

 

3/ My next question.  Mr. Harlem, you mention here your hourly rate of $200/hr.  Is it reflected in your retainer agreement with your clients?  Mr. Harlem mumbles "I do not recall".

 

4/ My next question. Mr. Harlem, you put into one billing entry several services, how much time was attributable to each of them - I am just asking why the billing statement was not properly itemized, which is a disciplinary violation.  Mr. Harlem says "I do not know".

 

5/  My next question.  Mr. Harlem there are abbreviations mentioned in the billing statement, RAH, POD and ZLS.  What do they mean?

 

Mr. Harlem replies:

 

RAH - that's his code, Richard A. Harlem;
POD - that's the code for his employee, and answering a follow-up question, no, the employee is not admitted to practice law;
ZLS - that's a code for the legal secretary

 

Mr. Harlem charges $100/hr for services of his legal secretary, including for "notary services".  Now, I am a notary and I know that I cannot charge for my "notary services" at $100/hr, I can charge 1 dollar per notarization, and usually notaries in New York notarize documents for free, which is what I do.  Mr. Harlem puts into a billing statement a charge for his legal secretary's "notary services" at $100/hr - and Judge Dowd happily endorses it.

 

It is not allowed for an attorney to charge for services of auxiliary personnel unless there is a written authorization from clients for him to do so in a retainer agreement.

 

Mr. Harlem does not know whether there is a written authorization in his retainer agreement for ZLS or POD, which would require the court to strike services of ZLS and POD from the billing statement.  I asked for it, Judge Dowd denied my request without an explanation of grounds.

 

Now, the question about the POD guy.  Mr. Harlem charges for his services at $100/hr, including for his drafting of an affirmation and a memorandum of law.  To draft such documents constitutes a practice of law.  Mr. Harlem charges for such services, once again, at $100/hr.  

 

I know the Committee for professional conduct grilled both Mr. Neroni and myself as to whether Mr. Neroni even talks to my clients in my home law office (and Mr. Neroni's own home), much less drafts affirmations and memorandums of law, at a charge to my clients.  Mr. Neroni had to sue the Committee in federal court to stop this harassment.

 

Had my husband drafted any such things, both my husband and I would be in jail - my husband for unauthorized practice of law, me - for aiding and abetting unauthorized practice of law.

 

There is no difference why a person does not have a license - because he lost it (like my husband, through Mr. Harlem's shenanigans in the Mokay saga which continue to this day), or because he never had it to begin with, like Mr. Harlem's employee POD.  No license is no license, and the crime of unauthorized practice of law punishes for practicing without a license.

 

Yet, my husband, a person without  a law license, is not allowed to even talk to my clients, much less draft documents that I would charge to my clients, and to Mr. Harlem, the son of a late Supreme Court justice, Judge Dowd magnanimously allows to not only have a non-attorney draft affirmations and memoranda of law, but also to charge them to their clients - and to me and my client - at $100/hr.

 

In his "closing speech"  Judge Dowd stated that the issue of unauthorized practice of law that I raised is "bizarre" and went into de facto unsworn testimony on behalf of Mr. Harlem and his clients reminiscing how Judge Dowd was interning at a DA's office before he was admitted, and was drafting indictments.  From his own experience and unsworn testimony Judge Dowd drew an inference that what Mr. Harlem was doing was ok.

 

Thus, Judge Dowd further aggravated his display of, how to put it mildly, lack of knowledge of the applicable law, because it was not unauthorized practice of law for him to draft those indictments at the DA's office. 

 

22 NYCRR 805.5, the rule of the New York State  Supreme Court Appellate Division 3rd Department allows eligible law students to practice law in governmental organizations like the DA's office. 

 

I know for a fact that many students in my law school class who interned in the DA's offices got such preliminary admission and even tried cases in courts.

No rule allows non-lawyers to practice law in a law office of a private attorney.

 

It is not allowed for a private attorney to bill services of his auxiliary staff to the client without the client's express permission, much less to bill for drafting of affirmations and memorandums by a person not admitted to the bar.

 

It was clear as day.

 

An attorney submitted to the court an application for legal fees, and then claimed to the court under oath that certain legal services in that statement were provided by a person who was not licensed to practice law.  The court had to deny attorneys' fees for the services of POD and sanction Mr. Harlem for engaging his personnel into unauthorized practice of law.

 

Yet, for Judge Dowd it was "bizarre" that I made such an argument against Mr. Harlem, because Judge Dowd stated that I should have settled instead of going into a hearing in the first place. 

 

I guess, that was the rationale why Judge Dowd denied me the adjournment, too - because I should have settled in the first place.

 

6/ I also asked a question whether the $100.00 hourly rate for POD and ZLS was authorized by clients in the retainer agreement.  Mr. Harlem could not recall or did not know.

 

7/ I asked whether Mr. Harlem's clients authorized him to bill them for services of a person who was not admitted to the bar.  Mr. Harlem could not recall or did not know.

 

8/ I asked whether Mr. Harlem's clients authorized the billing statement presented to the court, because it is their ultimate obligation shifted to my client, and if they disagreed with it, it could not be passed to my client.  Mr. Harlem said that he showed the statement to them, but they did not say "yes" or "no", so obviously he did not seek their approval.

 

So, to sum it all up, here is an addition to the billing practicing of the law firm Harlem & Jervis of Oneonta, NY partially belonging to Richard Harlem, son of a judge.

 

1. Lack of itemized billing - to all other attorneys in New York State it is a disciplinary violation;
2. Billing for services of auxiliary personnel without authorization of the client;
3. Billing for legal services of an individual who was not licensed to practice law - which is a disciplinary violations, if not a crime, for all other "mere mortal" attorneys in the state of New York;
4. Billing for notary services at $100/hr;
5. Billing for postage, copying and mileage - that the NYS AG's office claimed back in 1999 is usually absorbed by law firms, but Mr.Harlem did not learn the lesson and continues to bill for it;
6. Failure to comply with the requirements for a specific retainer agreement and clients' bill of rights under 22 NYCRR 1400 while bringing a case of enforcement of a contract to make a will out of a judgment of divorce;
7. Failure to have proper retainer agreements justifying hourly rates of attorneys and law firms' personnel;
8. Failure to get approval of legal fees from the clients before presenting them to the court.

 

I think, other clients of Harlem & Jervis should be aware of these practices.

 

Mr. Harlem made a statement at the hearing that it was not an enforcement of a matrimonial judgment because it was "just" an enforcement of a contract to make a will.


Yet, the entire judgment of divorce was submitted to the court by Mr. Harlem as part of his 2nd Amended Complaint.


Moreover, if it was "just" an enforcement of the contract to make a will, which is what Mr. Harlem argued to the court in 2007, before joining the Estate as a co-plaintiff, and arguing AGAINST giving the properties to the Estate, Mr. Harlem's first-in-time client (an outrageous conflict of interest), why the Estate was even joined?


I keep asking this question, and I keep getting sanctioned by the court for asking this question.

 

Mr. Harlem, throughout the Mokay litigation, failed to reveal any theory of prosecution on behalf of the Estate, stated that the decedent's children are enforcing their late father's and mother's contract to make a will out of a judgment of divorce.

 

In my husband's order of disbarment the Appellate Division has already ruled that my husband "devised a plan with his client that would circumvent, in part, the intended purpose of a judgment of the Supreme Court that respondent had participated in constructing."That makes the Estate a Co-Defendant in the action.   It is a Plaintiff in the action, and is represented by Mr. Harlem, as well as the the decedent's children claiming that their father violated the contract to make a will together with his then attorney, Mr. Neroni.

 

Mr. Harlem continues to represent both the Estate and the children, and claims legal fees for such a representation, while in the cases of irreconcilable conflicts of interest like this one, normally attorneys forfeit legal fees.

 

You know how many judges reviewed the issue of the conflict of interest and did not find a conflict?

 

Let me count.

 

1/  Judge Elizabeth Garry of Norwich (now judge of Appellate Division 3rd Department);
2/  Judge Molly R. Fitzgerald of Binghamton, NY;
3/  Judge Carl F. Becker of Delhi, NY;
4/  Judge Kevin M. Dowd of Norwich, NY, and
the following appellate panels:
Disbarment panel:
5/ Judge Mercure (former acting Chief Judge of the 3rd Department);
6/ Judge Peters (current Chief Judge of the 3rd Department);
7/ Judge Spain;
8/ Judge Kavanagh;
9/ Judge McCarthy;


Panel who affirmed the partial summary judgment on liability upon which the order of disbarment was made without a hearing:


10/ Chief Judge Cardona (at that time);
Judge Peters (present Chief Judge);
11/ Judge Malone
12/ Judge Stein
13/  Judge Lahtinen


Recent sanctions decision which rejected the issue that Mr. Harlem and his law firm was disqualified and that the Estate had no standing


Judge Lahtinen
Judge Stein
Judge Spain
14/ Judge Egan


14 judges chose to consistently overlook the applicable law in order to allow for a retired judge and his son's frivolous lawsuit to proceed


Are these judges law school dropouts?
Yet, back to what happened at the June 23, 2014 hearing, and in view of that hearing it is interesting as to what will happen in the future of the Mokay saga.


At this time, Judge Dowd did not allow me to file any other motions in the Mokay action, including motion addressing the court's jurisdiction or validity of prior decisions based on new evidence, which are motions authorized by statute without leave of court.


I must make such motions only on an Order to Show Cause to Judge Dowd.


Judge Dowd has a history of ignoring my Orders to Show Cause.  He did that in a Supreme Court civil action where I was asking for an emergency relief, based on evidence that my client (not my husband) would suffer irreparable harm if at least a preliminary injunction is not granted.


Yet, since Judge Dowd was assigned to that case at the same time my husband sued him in a pro se federal action, my client had to suffer, and my application for an Order to Show Cause was simply ignored.


In other words, Judge Dowd expects me to pay $45.00 filing fees into court and have my show cause applications directing right into the garbage bin.  That is his concept of access to court for me and my clients, of course, after "searching his conscience" as he stated in his decision where he refused to step down from the Mokay case.


And of course, if Judge Dowd does sign an Order to Show Cause and allows the motion to proceed, since Judge Dowd disregards the law and instead regards his own reminiscences as evidence against my client and in favor of Mr. Harlem, Judge Dowd may (and, probably, will) sanction me once again for any motions that I may make to vacate the summary judgment because of Mr. Harlem's statements at the June 23, 2014 hearing.


But - Mr. Harlem did allow himself an important "slip of the tongue" in the hearing on June 23, 2014 that, in my view, does require a vacatur of the summary judgment of liability against my husband, and since I am effectively blocked from access to court on my client's and husband's behalf, I will air my opinion on what happened here, since what I raise here are issues of public concern, corruption in the court system.


When I cornered Mr. Harlem that he is enforcing a judgment of divorce while he did not comply with 22 NYCRR 1400 and thus is not entitled to one penny in legal fees (while legal fees is all that Mr. Harlem asks in actual and TREBLE damages in the action, under Judiciary Law 487), Richard Harlem claimed that he is "only" enforcing against my client a contract to make a will, not a judgment of divorce.


Yet, Mr. Harlem has so far obtained a partial summary judgment on liability against my client and husband for FRAUD UPON THE COURT - for defying a COURT ORDER, specifically, a judgment of divorce. 


Based on the partial summary judgment on liability under Judiciary Law 487, enforcing the judgment of divorce, my husband was disbarred WITHOUT A HEARING, after 37 years of practice and despite running a de facto free legal clinic in the county for the indigent, for years.


When it came out in court that Mr. Harlem did not comply with 22 NYCRR 1400 for purposes of legal fees in actions enforcing such JUDGMENTS, Mr. Harlem suddenly claims that his clients are "only" enforcing a contract to make a will as 3rd party beneficiaries?  Under Judiciary Law 487?  In a fraud upon the court action? 


A fraud upon the court action NECESSARILY relied upon the entire JUDGMENT OF DIVORCE, not upon a contract to make a will.


Now what?  Will Judge Dowd and all appellate court brush a would be motion to vacate because  my husband is just a "disgruntled disbarred attorney" who is below the law while Mr. Harlem is a son of a judge who is above the law?  No matter what he does?


When hearing that argument from Mr. Harlem, Judge Dowd should have instantly struck the summary judgment on liability against Mr. Neroni sua sponte, without waiting for my motions.


Yet, instead, Judge Dowd reminisced about his own internship in a District Attorney's office where he was drafting indictments, reprimanded me for not settling with Mr. Harlem and awarded to Mr. Harlem everything Mr. Harlem asked in his billing statement.

 

 

I guess, I should not even be wondering any more why judges do not follow laws.


It is clear to me from my own experience as an attorney in the Mokay and other cases that in New York there emerged a new body of law - a law for sons of judges (and other attorneys affiliated with judges) which defies and disregards any other law. 

 

Mere mortal attorneys and their clients are powerless against it.   Or is there a light at the end of this tunnel?