Brain drain and brain dump in the United States

Let's face it, the United States is not topping any lists in educational performance of its students.


Far from it, educational performance of United States students (on the average) is admittedly mediocre, and that is according to official reports.


When my daughter came to an American school from a Russian public school, we were both amazed how easy the curriculum is - as compared to what it is in Russian public schools, or at least was when I was growing up in Russia long time ago and when my older daughter went to school there.


The U.S. is making strong efforts to provide economic incentives to the bright and talented people from all over the world to come and work in the United States - both because within the country, interest of its own students to the "brainy" professions is lukewarm and because the bright and talented professionals from, let's say, developing countries may be cheaper than American college graduates.


Thus, the brain drain may help the U.S. economy, as well as hurt it.


From the point of view of human capital, it is interesting what is happening in the legal profession.


Here, law schools are competitive and are trying to attract students with the best performance, or, in other words, the intellectual elite of the nation.


After graduation and licensing, these same intellectuals are thrown into the murky waters of the practice of law where the best survival tool is scraping and bowing to the judge - no matter how stupid, immoral or incompetent the judge appears to be.


This is a mode of survival for many attorneys.


A retired judge once told me that "I am digging a hole for my client (a female college professor) with my intellectual efforts".  Not only he told me that without reading the record that he was commenting on.  He told me that without any qualms about the discriminatory and sexist nature of his statement.  The retired judge has actually retired from the Appellate Division 3rd Department.  His name is Carl Mugglin.


I noticed that raising constitutional issues is perceived as frivolous, unnecessary and wasteful conduct by most judges in most courts.


Research tools are prohibitively expensive, and, as far as I know, most small-firm or solo attorneys either do without them or reduce them to the bare minimum.


Finally, if you dare to criticize a judge, your license may be pulled, and no matter how skilled, bright or talented you are, you are prevented from sharing your skills, intellect, ideas and wisdom with the public - even the indigent and under-served public.


So, after the bright and talented graduate from law school, they must either engage in brain-dumping and risk brain atrophy by intentionally dumbing down their arguments in order to stay off the radar of judicial wrath and to survive and earn a livelihood, or are dumped out of meaningful employment, because a disbarred attorney has very little chances to get gainful employment.


Brain drain on the one side and brain dump on the other.  Isn't that a waste of human capital - of American college graduates, scientists and engineers, who cannot compete with cheaper foreign work force, and for American law school graduates who either need to dumb themselves down and not show their brains, thus stifling legal innovation, or risk showing it - and risk to be dumped out of professional workforce entirely.


Such a situation is demoralizing to any individual, and particularly to the bright individuals who were lured to law school with claims that they are "intellectual elite".


This "internal emigration" into kitchen dissent by the legal profession while having to publicly brownnose people who are possibly dishonorable and incompetent leads to high levels of stress, alcohol and drug abuse and burnout in the legal profession.


Because of the fear of retribution, attorneys, even the best and the brightest, are unable to show their true potential and help their clients the way they truly can - and that is especially sad in civil rights cases.


Reducing intellectuals to groveling and seemingly brainless sycophants as a point of survival cannot be deemed to be in the public interest.


What is in public interest is to use the human capital of the nation to the best of its abilities.


And that is one more reason for me to claim that independence of the legal profession from the stifling and retaliative control of the judiciary is a matter of urgency in this country.

Should these 14 New York Senators be impeached for voting in favor of a legislation that benefited them financially and protected the market of their professional services?

Recently a legislation was passed in New York State enhancing unauthorized practice of law from a misdemeanor to a felony.


According to my research of public records, 14 New York Senators whom I name in the table below voted for this legislation, legislation that enhanced restrictions to the market where they continue to provide professional services. 


Therefore, these New York Senators had a material interest in the legislation they were voting for - to restrict competition to their business - and should not have voted at all.


It is interesting to mention that what exactly constitutes the practice of law remains undefined, and thus is subject to selective and arbitrary enforcement. 


Yet, these 14 attorney-senators made sure that this vague and undefined activity must be now punished as a felony (1 1/3 to 4 years in state prison + fines and prohibition to vote and have firearms) rather than a misdemeanor (up to 1 year in the local jail + fines).

The data in the table below was compiled by me from two public websites - the website of the New York State Legislature as to the voting records for this particular statute, and the website of the New York State Court Administration as to registration statuses and information for senators-attorneys.


It is for the public to decide whether the senators who use New York Legislature to get benefits for their business should be impeached, thrown out of office and disciplined as attorneys for conduct unbecoming a member of the legal profession.

No.	Name of Senator-attorney	Attorney Reg. No.	Admitted to practice law in NY	Judiciary Committee Vote - Mar 1, 2011	Floor Vote, Mar 7, 2011	Judiciary Committee Vote  – Jan 18, 2012	Floor Vote – May 1, 2012
1.	Breslin,Neil D. ( in private practice, Hiscock & Barclay)	1431972	1972	Aye	Aye	Aye	Aye
2.	DeFrancisco, John A. (private practice, DEFRANCISCO & FALGIATANO) (co-sponsor)	1374495	1972	Aye		Aye
3.	Flanagan, John J., (in private practice, FORCHELLI, CURTO, DEEGAN, SCHWARTZ, MINEO, COHN & TERRNA, LLP.)	2433803	1991	Aye		Aye
4.	Gianaris, Michael N.	2598399	1994	Aye		Aye
5.	Lanza, Andrew J.	2550093	1993	Aye		Aye
6.	LaValle, Kenneth P (in solo private practice)	2554574	1993	Aye		Aye
7.	Little, Elizabeth E. (in private practice, LITTLE & O'CONNOR ATTORNEYS, P.C.)	2528818	1993	Aye		Aye
8.	Nozzolio, Michael F. (in private practice, NOZZOLIO LAW OFFICES C/O HARRIS BEACH PLLC)	1818814	1980	Aye		Aye
9.	O’Mara, Thomas F. (in private practice, DAVIDSON & O'MARA, P.C.  243 LAKE ST)	2479269	1992	Aye		Aye
10.	Perkins, William P. (in private practice, WILLIAM PHILLIP PERKINS   SEYFARTH SHAW LLP)	2843191	1997	Aye		Aye
11.	Ranzenhofer, Michael H. (in private practice, FRIEDMAN & RANZENHOFER PC  PO BOX 31)	1765411	1980	Aye		Aye
12.	Saland, Stephen M. (co-sponsor, in solo private practice)	1634526	1969	Aye		Aye
13.	Zeldin, Lee M. (in solo private practice)	4195053	2004	Aye		Aye
14.	Adams, Eric R. (in solo private practice)	1786243	1978			Aye

Ethical obligations and sweet dreams of Attorney James Ranous, the Deputy Clerk of the Appellate Division 3rd Judicial Department

My first question to Mr. Ranous, the Deputy Clerk of the Appellate Division 3rd Judicial Department - do you sleep well at night?

Does your conscience bother you?

At least a little bit?

Well, it should.

The Rules of Professional Conduct, applicable to all attorneys, including you, Mr. Ranous, provide that an attorney must (I stress it, must, this is not a discretionary option) report attorney misconduct or judicial misconduct that an attorney knows about.

That may just as well include misconduct of the attorney's employer, no matter how powerful, no matter what consequences to the attorney.

That is a duty that the Rules of Professional Conduct impose upon the members of the legal profession for the protection of the public.

I've written in this blog that the NYS Appellate Division Third Department engaged in an ex parte communication with the Committee for Professional Conduct the moment I mentioned in federal court on my husband's behalf that I am seeking to see the voting record in my husband's disciplinary case and engage an authenticity expert, especially in view of the recent "resignation"of three attorneys from the Committee among investigation regarding investigation for allegedly filing false time sheets.

When the court employing Mr. Ranous engaged in an ex parte communication with the Committee about a CLOSED case and transfer documents sought through a federal lawsuit, what did Mr. Ranous do?

Did he report attorney misconduct?

No.

Did he report judicial misconduct?

No.

Here is the entire correspondence between my husband and the Appellate Division (posted with my husband's permission) that started after the Appellate Division suddenly transferred an long-closed case to the 4th Department, "coincidentally" did it right after I raised in federal court the issue of authenticity and availability of documents in the Committee and did it without showing the application for such an order of transfer to my husband or myself as his attorney.

Document 1.  The ex parte order of transfer.  My husband's case was concluded on July 7, 2011 with the resulting loss of jurisdiction by the court and the Committee.  My case was commenced in January 2013.  My husband's case and my case were never merged (consolidated).  Neither my husband nor I were ever served with the application for this order.

Document 2.  My husband's first letter in response to the ex parte order requesting to disclose authority upon which the order was made and to provide copies of documents upon which the order was granted and documents which were transferred to the 4th Department.

Document 3.  First obnoxious answer by Mr. Ranous ignoring the request for copies of documents.

Document 4.  My husband's second letter to Mr. Ranous repeating his request for copies of documents upon which the ex parte order was granted and copies of documents which were transferred

Document 5.   Mr. Ranous's second obnoxious reply to my husband arrogantly telling Mr. Neroni that Mr. Ranous "was directed to advise" Mr. Neroni that his request "for a copy of all proceedings resulting in this Court's order of June 11, 2014 and for copies of documents transferred has been denied".  

Just like that - denied without an explanation who "directed" Mr. Ranous to answer in this manner, on what grounds or for what reasons.

Today I've read the new lawsuit by Leon Koziol against the Appellate Division Third Department and the Committee for Professional Conduct a portion of which I publish herein (parts of pages 1 and 25):

Document 6.  The first page of Mr. Koziol's federal lawsuit showing names of defendants.

Document 7.   Part of page 25 of Mr. Koziol's federal lawsuit showing that the Appellate Division Third Department engaged in an ex parte communication with the Committee, attorneys Duffy and Zayas, in 2012 and denied Mr. Koziol access to the important documents upon which the court relied in denying him his application for reinstatement of his law license, a constitutionally protected interest.

Document 8.  Part of page 25 of  Mr. Koziol's federal lawsuit showing that Mr. Koziol's second application for reinstatement of his law license was denied because of his political activity protected by the 1st Amendment, posts on his website and anti corruption testimony before the Moreland Commission. 

Document 9.  Part of page 19 of Mr. Koziol's federal lawsuit referenced in Document 8 above.

Document 10.  Part of page 9 of Mr. Koziol's federal lawsuit referenced in document 9 above.


Statements by Mr. Koziol, together with documents from my own and my husband's cases, including my husband's federal lawsuit for access to his own disciplinary file, show clearly that the 3rd Department and the Committee for Professional Standard treat disciplinary proceedings as their own personal fiefdom, do not feel restricted by any rule of law, engage in ex parte communications as a matter of custom and engage in retaliation for pubic criticism of misconduct within the court system also as a matter of custom.

An attorney working within the system, knowing of such misconduct, is obligated by Rules of Professional Conduct to report such misconduct.

In my husband's case Mr. Ranous did the opposite.

He participated in the cover-up and arrogantly told my husband that he was "advised" by an unknown individual that my husband's request of access to the ex parte application to transfer his file 5 hours away from him was denied (see Document 5 above) - no explanations, no grounds, no authority - denied and that's it.

One more example showing that the Rules of Professional Conduct do not apply to the government or friends or relatives of government officials. 

One more example of why attorney licensing do not protect the public, but only protects public officials for accountability for misconduct by giving them power to quash investigation and prosecution against themselves, as well as instill fear in the legal profession and the public by retaliation targeting critics and exterminating their reputation and livelihood.

Once again, so much for the rule of law in the state of New York.

And Mr. Ranous - I return to my initial question - how do you sleep at night?  Any pangs from your conscience?

Didn't think so.

Does it matter who is standing in front of the court when the court decides the issue of standing? In NYS Appellate Division 3rd Department, it does.

On December 13, 2012 the NYS Appellate Division Third Judicial Department decided a case O'Sullivan v. Hallock.


One of the defendants in that civil court case between private parties, siblings, for the allegations of wrongful death of their father and fraud in connection with the estate of their father, was Peter Bracci, political supporter of Delaware County Judge Carl F. Becker, the then Supervisor of the Town of Delhi and the then Supervisor in the Delaware County Board of Supervisors of the Department of Social Services, Judge Becker's pet and client of 27 years.


Another defendant, Mary Bracci Hallock, was Judge Becker's former client herself.


Representing the defendants was the then Assistant Delaware County Attorney (and now the Delaware County Attorney) Porter Kirkwood who was seen engaging in conversations behind the courthouse with Judge Becker during the pendency of the O'Sullivan v. Hallock proceedings.


Porter Kirkwood was at that time a full-time employee of Delaware County and represented these private defendants in court on county time.


It is the same Porter Kirkwood who appears in front of Judge Becker on behalf of the County in child neglect and abuse cases in Delaware County Family Court.


It is the same Porter Kirkwood who, according to witnesses and federal court litigation, controls access of citizens to their own files in Delaware County Family Court and to the files of applicants for gun licenses, something that Porter Kirkwood cannot control but which he nevertheless controls.


Carl F. Becker nonchalantly presided over the case where he had glaring conflicts of interest and ruled that Barbara O'Sullivan has no standing to sue because she was not the executor of her father's estate.


Admittedly, Barbara O'Sullivan was not the executor of her father's estate when she sued.


Nevertheless, Porter Kirkwood who represented Barbara O'Sullivan's siblings, neglected to raise the issue of standing in his pre-answer motion to dismiss or answer, and thus, under the existing New York State law, waived the issue.


Judge Becker rescued a paying case for his former colleague, subordinate attorney and, apparently, friend, by dismissing Barbara O'Sullivan's case for lack of standing where the issue was obviously waived through the neglect of Porter Kirkwood as an attorney.


The Appellate Division affirmed Judge Becker's dismissal on the grounds of standing.


That was on December 13, 2012.


On July 3, 2014 that same Appellate Division 3rd Department reversed the decision of Judge John F. Lambert, of the same Delaware County Supreme Court, on the same issue of standing.


In its decision, Town of Delhi v. Telian, the Appellate Division correctly stated that the issue of standing is waived unless raised in an answer or pre-answer motion to dismiss, which the respondent allegedly failed to do.


Of course, the difference was that, according to the federal lawsuit filed by Mr. Telian on July 29, 2014 in the Northern District of New York, Mr. Telian was not the record owner of the property in question and could not possibly be sued for filing to obtain building permits, on that property so Judge Lambert was indeed correct in dismissing the action - even though the dismissal would be not for lack of standing, but for failure to state a claim.  The Appellate Division could, in its own discretion, dismiss that case as against Mr. Telian, for failure to state a claim, even if Judge Lambert did not dismiss it on that particular ground, simple as a matter of justice, due process and judicial economy.


Instead, the Appellate Division reversed Judge Lambert's dismissal and remanded the case for consideration of a motion for a summary judgment against Mr. Telian, a completely frivolous motion in view of the fact that Mr. Telian was not the owner of the property in question.


Now - the Appellate Division follows the law of standing, to a fault, when somebody who is attacking a judge's friend is involved.


The same Appellate Division would not follow that same law when following it would expose that same friend of that same judge to an embarrassing lawsuit.


Why am I not surprised?