Just published an update with documents and detailed analysis about Mary Gasparini urging the Referee to file false documents with the court

You can read the updated blog here.

Attorneys and judges in New York: until you are caught, snort (cocaine)

This is the so-called "diversion rule" of the NYS Supreme Court Appellate Division 4th Judicial Department.  It says:

"When an attorney who is the subject of a disciplinary investigation or proceeding raises in defense of the charges or as a mitigating factor alcohol or substance abuse, or, upon the recommendation of counsel to the Attorney Grievance Committee, the Court may stay the matter under investigation or the proceeding and direct that the attorney complete a monitoring program sponsored by an approved lawyers’ assistance program (22 NYCRR 1022.20 [d] [3] [a]).

Upon proof of successful completion of a Court-ordered monitoring program, the Court may dismiss the charges. In the event of failure to successfully complete such a program or the commission of additional misconduct during the pendency of the proceeding, the Court may rescind the order diverting the attorney to a monitoring program and reinstate the charges or matter under investigation (see 22 NYCRR 1022.20 [d] [3] [b])."

Now, when did a statement of, let's say, a criminal that he committed a crime because he was drunk or high prevented courts from finding him guilty?

Good luck trying to prove to the court that, since your client was drunk or high, it somehow negated his guilty state of mind.

It will, most  likely, be considered as an aggravating circumstance, not as a mitigating circumstance.

Not so with attorneys.

As soon as you say - in your defense, no less, or "in mitigation" of allegations of already adjudicated misconduct - that you committed attorney misconduct because you were drunk or high on illegal drugs, you get a chance to have the charges dismissed after you complete a "court-ordered monitoring program".

And remember - proceedings where you admitted that you were drunk or high, but which are dismissed because of the court-ordered monitoring program, never become public, so your clients will never know that you actually were drunk or high when handling their cases.

Is not that great?

Yet, I know of one court case where the NYS Supreme Court Appellate Division 3rd Judicial Department actually found, in a custody proceeding, that the father should lose custody because he used illegal drugs - cocaine.

Please, note that the Appellate Division 3rd Department which, similarly to the 4th Department, has a "rule of diversion" for attorneys who are drunk or high when handling their client's cases, considered that same factor against a father in a custody proceedings.

But the kicker in this case is that - guess what? - the father, David Rikard, who lost custody of his child  in this custody case because of the use of cocaine WAS AND STILL IS AN ATTORNEY!!!

So - do his clients know about his cocaine use?  Did he stop the cocaine use?  Does he still continue it while representing his clients?

Look at David Rikard's arguments to the court when he tested positive for cocaine in a court-ordered drug test:

"The father, on the other hand, never directly disputed his use of cocaine, but argued that he had not used drugs in the presence of the child."

So, David Rikard did not use cocaine in 2009-2011 in the presence of his child, but did he use cocaine while preparing for his court cases?  Do his clients whom he represent at that time know about Mr. Rikard's use of cocaine.

Time and again substance abuse is called a growing problem in the legal profession, see here.

New York State Lawyer Assistance Trust published a study about substance abuse recently which starts with the phrase "Lawyers work high stress jobs in a high stress world".

Tell me, whose jobs nowadays is not stressful?

But why only for attorneys being working for their clients under the influence of illegal drugs is a mitigating, not an aggravating factor?

Why it is an aggravating factor in a child neglect proceeding? Custody proceeding - see, again, Rikard v. Matson? Criminal proceeding - where the use of drugs and alcohol is a conscious choice and does not negate the state of mind (and good luck making that argument to the court)?

Of course, Attorney Rikard is untouchable by attorney discipline for a simple reason that he is a buddy of the former Vice-Chair of the NYS Commission for Judicial Conduct Stephen R. Coffey, who was still in office at the time Rikard v. Matson was decided on January 13, 2011.  

That is likely why the Appellate Division could, but did not refer David Rikard to be investigated and prosecuted for potential attorney misconduct.  

Who would dare touch Mr. Rikard?  What if Stephen Coffey would then investigate and prosecute the offending judges for hurting his buddy?  

So - nobody dared to investigate or discipline him for his potential drug use when representing his clients.

You know how this little "diversion program" in all 4 Departments came to be?

On the initiative of the former Chief Judge of the New York State Court of Appeals Judith Kaye:

Somehow the good judge Kaye's concerns resulted somehow in application of "diversionary" rules to attorney discipline proceedings, which are allegedly commenced for protection of the public, of clients, not of attorneys.

And yet, the public may not even be allowed to know that a certain attorney HAD a drug problem when he did something that hurt his clients.  Rehabilitation through undergoing a secret monitoring program under the secret monitoring of a secret court does not do the clients whose cases the attorney did while drunk or high any good, will it?

Once again - why for lawyers being committing misconduct while being high on illegal drugs is a mitigating factor while for everybody else the same behavior is an aggravating factor?

Because some politically connected lawyers and - God forbid - judges - may be "using" and conveniently created rules protecting themselves, under the guise of protecting the public?

Because, "to be part of the club", "to belong", you need to drink together?  Use together?

Why the fact that substance abuse is rampant in the legal profession must be used to protect not the clients from such attorneys, but attorneys from discipline for misconduct toward those clients?

So, as far as my case is concerned - I have no excuse.

When I was making motions to recuse a biased judge, I was not drunk or high.

What a pity.  That could have been a "mitigating factor" or a "defense". 

And the scariest part for the public is what the NYS Lawyers' Assistance Trust stated in yet another of its studies: 

What is scary is that not just statistics of attorneys seeking help is not available, but also nobody knows numbers of attorneys NOT seeking help and being drunk and high on illegal drugs while representing clients.

Do we need to now new rules mandating random "pee-in-a-cup" test for attorneys as a pre-requisite of practicing law?  Because otherwise you will never know if your attorney is drunk or high while representing you.

And guess what - attorney David Rikard is now - yahoo! - Judge David Rikard in the Prattsville Town Court, New York.

So, the question is, is he snorting on the bench, or off the bench when he is reading your pleadings?   

A request to the court to allow a party to make a motion to challenge the court's jurisdiction and misconduct... All those developments of the "law", all for me? I am flattered...

Due to an anti-filing injunction imposed upon me by the NYS Appellate Division 4th Judicial Department (my disciplinary court) without statement of grounds, notice, opportunity to be heard on that issue or a hearing (all requirements of the law), I now have to ask the court's permission to make the following motions that are usually done at any time the need arises and "as of right", as of constitutional federal due process right which should pre-empt any inconsistent state law:

(1) I am asking the court to allow me to make a motion to vacate is orders and dismiss the proceedings for lack of subject matter jurisdiction as to several charges affected by a recent change in case law;  apparently, if the court does not have jurisdiction over the case, it cannot give or not give me permissions to challenge that jurisdiction, it is legal nonsense - but that's what I am required to do, under the threat of contempt of court, so that's what I am doing;

(2) I am asking the court to allow me to make a motion to recuse and disqualify the court, for the court's own misconduct;

(3) I am asking the court to allow me to make a motion to disqualify the prosecutor and to sanction her for frivolous conduct (since it is a civil proceedings and rules of frivolous conduct must apply to the civil prosecutor, as a point of equal protection of law).

We will see if the court will graciously allow me to make motions that federal law does not allow state courts to NOT allow, under the federal pre-emption doctrine.

Stay tuned.

Since there is no way to keep attorney licensing and discipline to even appear lawful and not stupid and insane, like it is in my case, shouldn't we simply abolish attorney licensing?

If I bring an Article 78 writ of mandamus and prohibition against a Referee, CPLR 7804(i) presupposes representation of the court-appointed Referee by the New York State Attorney General, obviously, at public expense, even if the Referee is sued for usurping an elected public office.  As I said before in this blog, New York does not have an effective legal remedy to enjoin unauthorized actions of appellate courts and their court-appointed referees or judicial hearing officers because the only venue where one can sue those courts is in those same courts.

  (i)  Appearance  by  judicial  officer.  Notwithstanding   any   other
  provision  of  law,  where  a  proceeding  is brought under this article
  against a justice, judge, referee or judicial hearing officer  appointed
  by  a  court  and  (1)  it  is brought by a party to a pending action or
  proceeding, and (2) it is based upon an act or  acts  performed  by  the
  respondent  in  that  pending  action  or  proceeding either granting or
  denying relief sought by a party thereto, and (3) the respondent is  not
  a  named  party  to  the  pending  action  or proceeding, in addition to
  service on the respondent, the petitioner shall  serve  a  copy  of  the
  petition  together  with  copies  of  all  moving  papers upon all other
  parties to the pending action or proceeding. All such parties  shall  be
  designated  as respondents. Unless ordered by the court upon application
  of a party the respondent justice, judge, referee  or  judicial  hearing
  officer  need not appear in the proceeding in which case the allegations
  of the petition shall not be deemed admitted or denied  by  him.    Upon
  election  of the justice, judge, referee or judicial hearing officer not
  to appear, any ruling, order or judgment of the court in such proceeding
  shall bind said respondent. If such  respondent  does  appear  he  shall
  respond  to  the petition and shall be entitled to be represented by the
  attorney general. If such respondent does not elect to appear all  other
  parties shall be given notice thereof.

CPLR 506(1)(b) provides that any justice of the Supreme 

Court can only be sued under Article 78 for a writ of 

prohibition in the Appellate Division of the Judicial District 

where the judge or justice serves.

    1. a proceeding against a justice of the supreme court or a judge of a
  county  court or the court of general sessions shall be commenced in the
  appellate division in the judicial department where the action,  in  the
  course  of  which  the  matter  sought  to  be  enforced  or  restrained
  originated, is triable, unless a term of the appellate division in  that
  department  is  not  in  session,  in  which  case the proceeding may be
  commenced in the appellate division in an adjoining judicial department;
  and

Therefore, the only way to sue an appellate judge and an appellate court

is in that same court - which is counter-productive, if not outright stupid,

or both, for obvious reasons.

What remains when the New York State Attorney General wears these hats:

(1) the one of an elected public official and my representative

who is duty-bound to protect me from fraudulent actions and deceptive

tactics of the government;

(2) the attorney for the State of New York and for each and every

one of its subdivisions, which representation includes my

disciplinary prosecutor and my disciplinary court (in the literal

sense - an appeal from the remand is still pending

in the U.S. Court of Appeals for the 2nd Circuit, with the

NYS Attorney General representing the disciplinary

court and the disciplinary prosecutors);

(3) an New York State officer with an exclusive authority to

bring a writ of quo warranto (ousting) proceedings 

pursuant to Executive Law 63-B

to oust Stephen R. Sirkin for usurping the power to act as if

he was elected as a Supreme Court Justice and appointed

by the NYS Governor to serve as a justice of the Appellate Division

before Sirkin retired (which never happened), because otherwise

Sirkin cannot be authorized in any way, shape or form to

decide motions in attorney disciplinary proceedings (which he

nevertheless did in my proceeding);

(4) an attorney designated by statute to represent Sirkin if I bring 

an Article 78 writ of prohibition against him to stop/enjoin him

from acting in usurpation of powers of duly elected and duly 

appointed by the Governor appellate justices, CPLR 7804(i).

So, NYS Attorney General represents everybody in town,

individuals and entities with diametrically opposite and 

irreconcilably conflicting interests, and acts as a prosecutor,

a witness, a counsel and a protector to the same people

in various related proceedings.  Apparently,

all of these actions of the NYS Attorney General,

including representation, at public expense, of individuals

sued for exceeding their authority, acting without authority,

or acting in malicious and corrupt manner, and representing

at the same time clients with irreconcilable conflicts of interest

is apparently "authorized by statute" in New  York.

The same behavior, at the same time, is prohibited to

all attorneys by New  York Rules of Professional Conduct,

begging, once again, the question. 

If NYS Attorney General, wielding tremendous

power in the State of New York and who can wreak

real havoc in people's lives with this power, is not amenable

to attorney discipline because he is "designated by statute"

to de facto violate Rules of Professional Conduct for attorneys, 

why do those Rules and attorney licensing and

discipline based on alleged violations of those Rules 

even exist? 

Simply as a means of social control and quashing competition

by powerful and politically connected law firms?

Attorney disciplinary against me proceedings are handled, 
allegedly, in order to protect the public from me, but the public is not allowed to see how it is being protected from me, and I am being criminally charged for allegedly attempting to tell the public about how it is being "protected" from me.  

And this secret "protection of the public" without
public participation is getting stupider and stupider
by the day.

Isn't THAT proof that attorney licensing should be abolished?

What happens to people who file false criminal charges in retaliation for civil lawsuits filed against them? Depends who files such false criminal charges?

Mary Gasparini attempted to charge me criminally for violating allegedly three "mandates" of the court:

(1) an order of December 17, 2014 that "sealed" my disciplinary proceeding pursuant to Judiciary Law 90(10) which protects, according to the case decided by the same court in 2009, either the complainant in such a proceeding (and in my proceeding there was no complainant) or the attorney who is subject of the disciplinary proceeding (and I expressly waived my privacy and confidentiality in these proceedings); I already wrote that Mary Gasparini (the disciplinary prosecutor) is uniquely trying to put me in jail in punishment for violating my own privacy - an outrageously stupid and incompetent move, but I did not see anything but stupid and incompetent moves from Mary Gasparini in these proceedings;  such a "mandate" may not be legal, as explained here, and a criminal contempt of court for this mandate does not lie;  see also the list of papers that the court has "sealed" under this order which shows just how laughable a "sealing" order under Judiciary Law 90(10) is;

(2) this letter by the court clerk dated December 31, 2014 and written when the court was not in session, explaining to me that I need to provide to the court a "good cause" to waive my own privacy in my own disciplinary proceedings; a letter of a clerk is not a mandate of the court for purposes of criminal contempt of court proceedings, and criminal charges for violating the "mandate" of a "letter" of a court clerk may not be used, in my legal opinion  after diligent research, to start a criminal proceeding against a person;

(3) this letter by the court clerk dated January 9, 2015, see my blog post here.  The court pretended to have sent it to me to my unplugged fax machine on January 7, 2015.  The prosecutor Mary Gasparini had delivered to me personally on January 12, 2015, acting as an agent of the court and further disqualifying herself. 

The letter was written when the court, and written to me similarly when the court was not in session, invites me to make a motion to disqualify the referee.

Neither of the letters may be considered as a "lawful mandate of the court" for purposes of a criminal contempt proceeding.

And I remind my readers that Mary Gasparini has filed the false criminal charges against me after and appears like in retaliation, because I sued her on December 10, 2014 for fraud upon the court and blogged about the filing of the lawsuit the same day.

But - since a disciplinary prosecutor is bringing this crap, excuse my French, she will probably be allowed to proceed, and even win.  She has never lost before, no matter how frivolous, fraudulent, stupid and outright insane her claims were.

We will see what happens.  Stay tuned.

Beware of the court reporter Debra Garrison. She falsified my court transcript and can falsify yours, too.

Here is the front and the last pages of a transcript of the pre-scheduling conference in my disciplinary proceeding that was held on January 12, 2015, as well as the "Exhibits" page.

The front page of the transcript shows that court reporter Debra Garrison took the record and calls it mysteriously "proceeding of Tatiana Neroni" instead of a "pre-trial scheduling conference".

The "Exhibits" page shows a "witness" and "witness's" "statements" - instead of a "Direct Examination" and "Cross-Examination", the usual designation of a witness's testimony at hearings.

The next page of the transcript shows that it is allegedly an EBT, that I allegedly made waivers and stipulations in that EBT, was called to testify, was sworn in and testified.

Of course, there was no EBT, no stipulations or waivers, no calling of witnesses, no swearing in of witnesses and no testimony - nor could there be because the Referee made a Decision on liability against me 22 days before that alleged "hearing" (or, in reality, what was noticed as a pre-trial scheduling conference of January 12, 2015):

In the middle of the transcript I tell the Referee that I am aware that the previous stenographer incorrectly claimed that the previous scheduling conference was "a hearing" and that I made stipulations and waivers, and indicate that I make no stipulations and waivers on January 12, 2015.

The Referee confirms - "no waivers".

After hearing that, stenographer Debra Garrison still prepares a transcript where she puts at the top of it that there were waivers, stipulation and that it was a hearing.

Moreover, knowing full well that 

• I was never called as a witness, that
• Debra Garrison has never sworn me in and that 
• I have never testified on January 12, 2015 (nor could I, because the appearance was noticed and scheduled as a pre-trial conference and because the Referee announced his "Decision" up front and later stated that the only further proceedings will be "in mitigation", and that was not yet scheduled)

Debra Garrison provided at the end of the transcript a false certification that I was properly sworn in and testified:

Of course, I will contest this clear falsification under oath.

But I am publishing this post for the public to beware of this "professional" court reporter.

She can falsified your court transcripts, ladies and gentlemen, the same way as she falsified mine.

Referee Sirkin's harassment of attorney Tatiana Neroni and his lack of either competence or mental capacity to serve as a referee are now confirmed by documentary evidence

On December 4, 2014 Referee Sirkin, by letter, scheduled a pre-trial scheduling conference in my disciplinary proceeding for January 12, 2014.

On December 8, 2014 my disciplinary court gave the Referee 60 days to hear and report outstanding issues of fact in the hearing that was supposed to be scheduled at the conference on January 12, 2015.

On February 5, 2015 I received a "Decision" by Referee Sirkin, which I will discuss in detail pertaining to its legality and contents in a separate blogpost.

What is relevant in that decision now is the date when it was made.

Here is the last page of the "Decision" with the date:  December 21, 2014.

Yes, the Referee made "a Decision" on liability against me 22 days before the scheduling conference that was supposed to even schedule a hearing that the court ordered the Referee to hold, "take proof" and report.

Apparently, to this Referee the court-ordered hearing was unnecessary, everything was clear to him without a hearing.

I kept wondering what makes the Referee withhold his "Decision" from me for so long after January 12, 2015 when he first announced to me its existence in a conference where I appeared by phone.

When I received the "Decision" finally, and from prosecutor Mary Gasparini, not from Referee Sirkin, I learnt, why.

Because the pre-trial scheduling conference set for January 12, 2015 was unnecessary under the circumstances where the Referee already made a decision that eliminated the trial (which, of course, he had no right to do - but he did anyway).

The question is - why the Referee did not send his "Decision" made on December 21, 2014 and why did the Referee did not eliminate the need for a "pre-trial scheduling conference" on January 12, 2015?

Why did the Referee hint that I was lying to him that the weather in Delaware County on January 12, 2015 prevented me from traveling over the frozen mountain roads from Delhi, NY to Syracuse, NY, despite a letter I faxed to him with a weather advisory for the area?

Compare (please, note that I was NOT called as a witness, was NOT sworn and was NOT testifying, because the appearance on January 12, 2015 was noticed to me as a pre-trial scheduling conference and was never meant to be a hearing, especially - and without my knowledge - that Referee Sirkin already made a decision that eliminated a hearing 22 days before the scheduling conference, on December 21, 2014):

Mental capacity and perceptive abilities of this Referee are amazing, since he judges what the weather is in the Catskill mountains of Delaware County by what he sees around Rochester or Syracuse, 3.5 hours' drive away from Delaware County.

The Referee, in his grumbling to me as reflected in the falsified transcript above (falsified because it states I was "testifying") refuses to even acknowledge that I have faxed a weather advisory to the Referee ahead of time to the Grievance Committee where the appearance was scheduled and held:

Now, let's follow the dates.

At no time during the proceedings did Referee Sirkin tell me that he has made his "Decision" on December 21, 2014.

Yet, look how Referee Sirkin reacts to the request by the Disciplinary Prosecutor to admit evidence LONG after Referee Sirkin already granted the prosecution's motion on liability for which the evidence was meant - and it was not meant for introduction at a "pre-trial scheduling conference" either.

Once again, the Notice to Admit was served on December 23, 2014.

By that time, Referee Sirkin has already made his "Decision" on December 21, 2014 that precluded any further introduction of evidence.

Prosecutor Mary Gasparini who was present at the pre-trial conference on January 12, 2015 in person, and thus had to see the date on the Decision, still pushes before the Referee her argument that the Referee should admit evidence after he made his Decision on liability, even though Mary Gasparini knows that the Notice to Admit was sent to me 2 days after the Decision was made, and was thus invalid - and that I do not know about it because I appear by phone and because nobody told me about the date of the Decision.

Yet, what Mary Gasparini asks of Referee Sirkin, Mary Gasparini gets, no matter what.  Here is what Referee Sirkin answers to Mary Gasparini in response to her request to consider evidence that I allegedly did not timely respond to her Notice to Admit served (without my knowledge) 2 days after Referee Sirkin made his Decision:

Please, note how Mary Gasparini puts her dainty foot into her own mouth by pointing out to Referee Sirkin that "as the court is aware, we've filed a Notice to Admit", so Referee Sirkin MUST know that the Notice of Admit was filed and served 2 days after he made his Decision.

Yet, Referee Sirkin responds to Mary Gasparini's request to consider new evidence after he made his "Decision": "I can do that".

I have a funny feeling that the 4th Department, in co-ordination with the disciplinary committee, has fished out the most incompetent and/or the most mentally incapacitated referee to handle my case, as the Referee does not seem to be aware of dates distances, possible differences in the weather between geographical locations, and lacks elementary perception and judgment abilities.

The Referee also does not seem to understand the authority that the court has given him, and the authority that the court did not give him, and he does not seem to know which rules of procedure do and which do not apply to the attorney disciplinary proceedings.

By the way, Referee Sirkin did not send the Decision to me and apparently wanted me to travel over frozen mountains, risking to kill myself, in order that he would have the pleasure of announcing the 22-day old decision to me in person.

"Coincidentally", in October of 2014 (of course, there was no snow, only rain that day), Referee Sirkin made me appear at a similar scheduling conference that lasted 10 minutes during which he announced that he will not be scheduling anything because of a motion that I filed 2 weeks prior.

It appears that Referee Sirkin had a sadistic pleasure in dragging me in by 9:00 am (which required me to wake up at 5:30) and refusing me a meeting at a later time, only to tell me that the conference is unnecessary.

Note that Referee Sirkin attempted to do the same with the so-called "mitigation hearing":

A Referee is scheduling a mitigation hearing, but he has "a conflict in the afternoon", so the hearing may be only held for a limited time and must start at 9 in the morning, with all the witnesses having to come over frozen mountains from Delaware County to Onondaga County, no shifts in time allowed.

On three occasions Referee Sirkin denied my requests to hold appearances a little later than 9 am, to accommodate how far away I live:

1. On October 2014 - when Referee Sirkin dragged me into an unnecessary scheduling conference where Referee Sirkin knew ahead of time he will not be scheduling anything and that would last 10 minutes, but would require of me 7 hours' travel roundtrip;
2. On January 12, 2015 when Referee Sirkin similarly refused to hold the pre-trial conference at a later time in the day, but was unhappy that I could not make it over the frozen mountains only to hear that the pre-scheduling conference was no longer necessary, because Referee Sirkin already made up his mind and made a Decision without any court-ordered hearings, contempt of court be damned, and
3. When Referee Sirkin was scheduling a mitigation hearing.

It appears that Referee Sirkin considered it his duty to harass me throughout the proceedings and that was the only thing that he did competently.