New York State Attorney General should pay attention to competence of his "assistants"

One more example that NYS Attorney General and his "assistant attorneys general" are wasting taxpayer money (including my money).

An "Assistant Attorney General" Kenneth Gellhaus, admitted to practice law in 1987 (28 years ago) has sent me a letter requiring me to "provide me with a physical location of your New York office in which you transact your legal business as a New York attorney".

How NYS AG can declare a default in a case where an Answer was filed in 2008 and representation was uninterrupted, nobody knows.

Mr. Gellhaus got so fired up because his office languished in prosecuting a case against my client for 7 (!) years - and I happened to remind him of that fact.  So, Mr. Gellhaus became all personal and demanded from me what no law allowed him to demand.

In his aggressive attack against me attempting to oust me from a case, Mr. Gellhaus relied upon NYS Judiciary Law 470 that requires "nonresident" attorneys to maintain a physical office in the State of New York, which was - guess what? - declared unconstitutional by a federal court 4 years ago, which declaration was not overruled (at least as yet) on appeal.

Judiciary Law 470 was amended by New York State Legislature on February 15, 2014, 2.5 years after the ruling in Schoenefeld v New York (above), and now it is as follows:

In an attempt to outsmart itself, the New York Legislature, noting that Ms. Schonefeld resided in an "adjoining state" (New Jersey), magnanimously allowed "nonresident" attorneys without an office to reside in "adjoining states" only.

It did not make much sense, because the appellant in the appeal from the decision in Shoenefeld v New York was not Ms. Shoenefeld, and mooting their own appeal for the State of New York was not the smartest thing to do, when such mooting does not cancel the determination of the U.S. District Court for the Northern District of New York in Ms. Shoenefeld's case, which was much broader than addressing discrimination of New York against "non-resident" attorneys only from "adjoining" states.

Yet, that is exactly what Mr. Gellhaus points out to me by stating that South Carolina where, he presumes from my P.O Box mailing address, I now exclusively reside (which is not true, because I have residences in New York state), is not "adjoining" the state of New York.

It is not.  But whether South Carolina where I reside IN ADDITION to residing in the State of New York, is adjoining the State of New York or not, is irrelevant to the decision in Schoenefeld v. New York:

Once again, the federal court in Schoenefeld v New York clearly indicated that it declares the statute unconstitutional not only towards Ms. Schonefeld (one attorney), but against "nonresident attorneyS" (plural, many attorneys), because of the statute's discrimination, in violation of Privileges and Immunities Clause.  Once again, the protected class here is "nonresident attorneyS", not "nonresident attorneys from adjoining states" only.  

So, New York's amendment of Judiciary Law 470 did not cure the constitutional defect that caused the statute to be stricken by the federal court.

Further, Mr. Gellhaus presumed that because I have a temporary mailing address outside of the State of New York, I am (1) a "nonresident" attorney and (2) am answerable to Mr. Gellhaus as to my physical address in New York "to transact my legal business", which, of course, is not true - as a matter of law - on both counts.

Under New York State law, no attorney has to disclose his or her residential address to litigants, opposing parties and their attorneys, and Mr. Gellhaus knows it very well.

Apparently, Mr. Gellhaus, very possibly, will be mighty frustrated if I happen to demand to know his residential address - in case I want to personally serve him with something, which was the presumed purpose of Judiciary Law 470 (declared unconstitutional 4 years ago by the U.S. District Court for the Northern District of New York in the case Schoenefeld v. New York, on 9/7/11).  Yet, he permits himself to demand such intrusive information from me. 

I've written in this blog time and again - when will our public servants LEARN TO READ?  Even the cases handled by their own office, such as Schoenefeld v. New York?

This is, alas, the competency level of our public servants in the State of New York...  And it is taxpayers' business to change that.  Soon.

Judicial candidate Porter Kirkwood shines as legal talent in the STOP-DWI "legal disclaimer"

I already wrote on this blog, with a link to a telephone recording, as to shenanigans of judicial candidate Porter Kirkwood, friend and colleague of Judge Carl Becker (who runs out of his office at the end of this July long before his term is up after fighting tooth and claw for being re-elected for that term).

I already wrote that Porter Kirkwood is the "best candidate" for Delaware County to replace Judge Becker since he is made of the same mold as Becker - incompetent, unprincipled and with a nasty temper smoothed out with smiles to and catering for necessary people, and about "hereditary" misconduct that will be continued by Kirkwood after Becker leaves office - if Kirkwood is elected in Becker's place.

I provided evidence (telephone recording) indicating that Porter Kirkwood is either lying that he does not know anything of the policies of the Delaware County Sheriff's department affecting people's constitutional rights, or he confesses to his incompetence in not knowing about such policies.

 Compare the recording of Delaware County's public official in charge of its jail explaining me about the alleged long-standing policies of searching attorney's files as a pre-requisite of visits of their clients, the direct link to the recording is here, (a made-up policy to prevent me from visiting my then client Barbara O'Sullivan in jail, to prevent any meaningful representation of her), and what Porter Kirkwood tells me that he does not know of any such policies, the same link.

Now for the new masterpiece that has to have Porter Kirkwood's hand all over it - a "legal disclaimer" on the website of Delaware County (supported by taxpayer's money).

First of all, the font of that "disclaimer" is black on dark blue background.  So, if you are not computer savvy, you will have to squint heavily to read what is there in the disclaimer.

If you are a little savvier, you will highlight the entire disclaimer, and then the font will become white.  That is what I did to make snippets of that disclaimer for this blog - and then the highlighting within the snippet somehow became black on gray, but still more readable than black on dark blue.

I do not think that the choice of font and background in the "legal disclaimer" is accidental.

I believe that the choice was intentional, so that, on the one hand, the disclaimer is there, and on the other hand, not many people would strain themselves to read it, and especially analyze it.

Here is the "legal disclaimer" for the STOP-DWI program of Delaware County, New York:

Now, "information contained herein" is information provided to the public on the public website supported by taxpayer's money.  As such, it constitutes a public record, and people who provide such information to the public must first check if it is correct.

Yet, Delaware County, while providing information to the public on a taxpayer-supported website, attempts to claim that it gives the public "no warranties, express or implied", as to the "accuracy or completeness" of information contained on the website about the STOP-DWI program.

In other words - read it, but do not believe a word, because what we say might not be true.

The next marvel is when the website directly addresses you and states that Delaware County will not be liable to you in any kind of damages if you dare to sue Delaware County for anything contained on its website.

Well, interestingly, it is not for Delaware County to make that determination, but for courts, and Porter Kirkwood, legal advisor for Delaware County, must know that before publishing this nonsense.

The very next marvel is that "you" (whoever you are) somehow "agree that the liability of accuracy or completeness of any information on the sites arising out of any kind of legal claim (whether in contract, tort or otherwise) in any way connected with the information therein shall not exceed the amount you paid to Delaware County, its departments or its agencies or its respective employees or agents for use of the service, if any."

Who it is that unknown "you" and what is the condition of the agreement - seeing the "legal disclaimer" on the Internet, I guess - and why, let's say, a civil rights lawsuit that may be brought against Delaware County based on its statements on its own website, should not "exceed", by agreement no less, whatever monies "you" paid to Delaware County "for use of the service, if any" - nobody knows.

And, of course, nobody knows what was the reason for inclusion into the "legal disclaimer" of the statement that all expenses of the Delaware County's STOP-DWI programs are funded by fees provided by individuals convicted for DWIs.

By the way, since Delaware County is not the most sought tourist destination, in fact, it looks like a ghost zone and its towns look like ghost towns, the only people passing through the county and stopped for alleged DWIs are its own residents, who are predominantly poor and poorly educated.

So, it is off those poor and poorly educated residents that STOP-DWI program, and the police, and the prosecutors, and the legal aid in Delaware County, are financed.  All off their backs.  All off your backs, Delaware County taxpayers.

And no "legal disclaimers" will help hiding the inconvenient truth that the STOP-DWI program, while declaring its good intentions, is a program based on financial corruption of government officials in order to increase convictions and revenues for the local government - and, I am sure, that perverse incentive, as I wrote in my previous blog post, lead to wrongful convictions, possibly, massive wrongful convictions.

And another truth is that the Delaware County residents will be saddled with the author of this "legal disclaimer" Porter Kirkwood, now as a judge, as unprincipled and as incompetent as he was in his position as a County Attorney, if they do not come to those voting booths and do not say "no" to Porter Kirkwood.

Delaware County residents who suffered for nearly two decades from the petty tyrant Becker, deserve better than two petty tyrants Kirkwood and Northrup who are about to replace Becker.

Do not allow the Hydra that Judge Becker was to sprout two ugly heads instead of the one that is leaving.  

Vote "no" as to both Kirkwood and Northrup.  Come to those voting booths, and tell your family, friends and neighbors to come and vote "no". 

You will save yourselves and your loved ones, for years to come, from a lot of misery.

Somebody is antsy in Delaware County...

In the morning, I published a blog about a "financial arrangement" in Delaware County, New York, where conviction fines finance the police, the legal aide, and now the prosecutors.

I also stated in the blog that the "masterminds" of the "deal of the century" are two judicial candidates, Porter Kirkwood (Delaware County Attorney) and Richard Northrup (Delaware County District Attorney) and listed instances of shady behavior of Richard Northrup before this "financial arrangement".

In the afternoon, my friend in Delaware County was already threatened with being "locked up" if she "does not stop blogging with" me.

It means that:

1) my blogs are read;

2) my blogs work in exposing misconduct of people;

3) those who intimidate my friends are really stupid people since they do not even know what blogging is when they demand that my friends stop blogging "with me".

I am blogging alone, individually and separately from my friends.

Yet, I will be publishing names of people who attempted to intimidate my friends or to pass intimidating statements from others.

One of such "referral source" is attorney Carol Malz of Oneonta, NY, who arranged a meeting with my friend, under an obviously fake pretext, to convey to her that she and I must stop blogging, "or else" there will be serious consequences for my friend in court, and that all troubles of my friend and her daughter (!) in litigation are because they associate with me.  

By the way, the 1st Amendment to the U.S. Constitution protects freedom of association from intrusion from the government, so it is obvious that the court system MAY NOT, constitutionally, take my friend's association with me (as the critic of judicial misconduct) against her in the court's rulings.

According to my friend, Carol Malz tried to subtly and not so subtly drop hints that my friend should really drop her civil lawsuit against police officer Derek Bowie (who assaulted her with a vehicle), and then the Delaware County District Attorney (who employs Derek Bowie's uncle, and therefore, prosecutes not Derek Bowie for assault and attempted murder, but my friend, Derek Bowie's victim, for a made-up crime) will "go easy" on her.  And, if she does not drop that lawsuit, she will be locked up.

Today the tune of intimidation was repeated - stop blogging (apparently "in association with" THAT Tatiana Neroni) - or you will be locked up.

Says a lot about integrity of judicial system, doesn't it, that simply being a friend of a critic of judicial misconduct puts a bull's eye on you and makes you a target of retaliation by the entire judicial system. 

Once again, I do not blog "in association" with people.  I blog on my own.

Intimidating my friends will not stop my blogging, as I believe my blogs protect them, not jeopardize them.

I believe that my friend Barbara O'Sullivan is safer when I blog about her.

What endangers her is the silence.

What helps judicial misconduct, police misconduct and prosecutorial misconduct is the silence, silence of people who, for financial or other reasons, are afraid to raise their voices against injustice that they clearly observe in front of them.

That's their choice.

And blogging is mine.

And I will not stop.

A new prosecutor funded by convictions and "expected" to raise conviction rates and revenues for Delaware County - well done, judicial candidates Porter Kirkwood and Richard Northrup!

The local newspaper for Delaware County, New York, reported on July 23, 2015 that "the Delaware County Board of Suprevisors authorized the funding of a new position in the District Attorney's office" at its meeting on July 22, 2015.

The salary for the new prosecutor is expected to be $32,084 per year.

The benefits for the new prosecutor, including "retirement, health insurance and other 'fringe' benefits" "increase the total to $51,872", according to the Walton Reporter, Lillian Browne.

Thus, $19,788 per year for health insurance (for the prosecutor and the prosecutor's family, no doubt), as well as the prosecutor's health insurance will be paid from - guess what - conviction fines!

Delaware County gleefully advertises this completely unconstitutional arrangement through the lips of its "STOP-DWI Program Coordinator" Scott Glueckert, who is also the county's probation director.

Walton reporter cites Scott Glueckert, the Delaware County public official to say the following: 

• that the new position will be funded with a portion of the $200,000 reserve in the STOP-DWI fund, a fund being formed by fines obtained from convictions for DWI; and
• that Scott Glueckert thinks that "the most productive use [of the money] is to give it to an agency that will use it effectively to put more offenders behind bars or on probation and hold them accountable for the crime they've committed".

Now, several conclusions can be drawn from this starkly frank and starkly unconstitutional statement.

First.

Since the statement comes from the Delaware County's director of probation, funding of the prosecution by:

1) probation (post-conviction management authority that has no right to control the prosecution, financially or otherwise);

2) out of conviction funds (which undermines the presumptive neutrality of the prosecution and creates a direct incentive for the prosecutor to drum up convictions, whether such convictions are lawful or not) 

- is the POLICY and the LAW in Delaware County.

2) "Savings to taxpayers".  

I am one of Delaware County taxpayers and, yes, I am interested in savings.  But not in savings in violation of the law and especially in violation of the U.S. Constitution, "savings" that will subject the Delaware County to civil rights lawsuit under 42 U.S.C. 1983 as an unconstitutional financial arrangement.

By the way, not only the Delaware County itself, but its public officials, individuals who are responsible in promoting such a program, starting from 

• judicial candidate Delaware County Attorney Porter Kirkwood (without whose blessing this "arrangement" could not have emerged);
• judicial candidate Delaware County District Attorney Richard Northrup (without whose blessing this "arrangement" could not have emerged either - the DA had to have given consent to accept this perverse financial incentive undermining his entire office's integrity, as well as criminal defendants' constitutional rights);
• probation director/STOP DWI "coordinator" Scott Glueckert who openly admitted that the interesting financial arrangement is MEANT to provide incentives to the new prosecutor - and to the DA's office to convict more.

Scott Gleuckert did not stop at his initial statement indicating that:

1) the new prosecutor (and the DA's office) will be funded out of convictions and

2) that the money is meant to be "effectively used" to increase the number of convictions.

Scott Gleuckert went further and made public statements to the Walton Reporter as to the revenue obtained by the Delaware County from DWI convictions.

In the "down" year, according to Scott Gleuckert, as reported by Lillian Browne, of Walton Reporter, the Delaware County "might net $75,000".

In an "up" year, according to the same source, the revenues from DWI convictions of the Delaware County are "up to $150,000".

Mr. Glueckert further publicly expressed an "expectation" that "the new prosecutor will create additional revenue through successful conviction of cases, which will help pay for the salary and benefit costs".

Now, wait a minute, Mr. Glueckert.

Didn't you just said that the salary of the prosecutor will be paid by the taxpayers and not from conviction fines?

And did not you just said that the monies for the new prosecutor are meant to "simply" increase the conviction rate, make more offenders "accountable for their crimes" and, thus protect the public.

Now you are saying that the new prosecutorial position is actually to bring more revenues to the County?

Nothing like a public official putting his own foot into his own mouth - deep.

Once again, this "legal wonder" of an arrangement could not have seen the light without the help of two attorneys who currently run for two judicial positions in the Delaware County:

Porter Kirkwood, the current Delaware County Attorney, and

Richard Northrup, the current Delaware County District Attorney

Their feet are also in their mouths - equally deep.

It is clear that by pandering such "savings" to Delaware County taxpayers they are trying to appease voters - financially - which means to bribe them into voting them into office, which I will address separately to appropriate authorities.

According to Delaware County District Attorney Richard Northrup, as reported in the same article, in 2014 the DA's office prosecuted 172 DWI cases, in 2015 so far - 93 DWI cases.

Richard Northrup indicates that his office "does not compile conviction rates" - of course, it doesn't, because if it does compile such statistics, it will have to disclose it through Freedom of Information request.  The easiest way to beat a Freedom of Information request asking for potentially damaging statistics is to simply not "compile" such statistics.

Yet, what Mr. Northrup did not take into account is that such statistics can be easily compiled by FOILing for copies of dispositions themselves - one will immediately see how many of 172 DWI cases in 2014 resulted in a conviction, bringing revenue to the county.

Richard Northrup expressed support for the financial arrangement - thus, in my opinion, approving of the policy, participating in the bribery of voters, and exposing himself, his office and the county to liability for civil rights lawsuits.

Richard Northrup also expressed an "expectation" that "the quality of dispositions" will be improved with the program.

I have no doubt that by "the quality of dispositions" Richard Northrup meant the conviction rate, otherwise his new prosecutor will simply have no funds to be funded out of.  

Of course, Richard Northrup concluded his interview to the newspaper with the usual politically correct words that with the new arrangement his agency "will be able to take a more aggressive stand against drunk drivers and through treatment and deterrence make the roads in our county safer for everyone".

Yet, the money paid for the new prosecutorial position - and to the DA's office - out of conviction fines - tells a completely different story, that convictions will be sought not to be "tough on crime", but for much more prosaic purposes - to increase revenues for the county, something a county prosecutor faithful to his oath of office MAY NOT even CONSIDER as his role or goal.

I would like to remind my readers that Delaware County District Attorney's office has recently been the target of the media because of nebulous scheme of financing and employment of social services investigators.

I would like to remind my readers that the Delaware County District Attorney's office aggressively prosecutes a woman, Barbara O'Sullivan, an active critic of police and judicial misconduct, who is the victim of a retaliative vehicular assault by the a Delaware County police officer Derek Bowie, while that police officer's uncle is employed by the Delaware County District Attorney who neither disqualified himself or his office, nor even disclosed to the court the fact of employment of the alleged victim's uncle.

I would like to remind my readers that the Delaware County District Attorney signs "deals" with drug offenders reducing their criminal sentences in exchange for indemnification (release from civil liability) of Richard Northrup personally, and the county, state and even federal public officials, officers and employees.  I have witnessed and reported one of such deals, and was retaliated by sanctions by the "drug court creator" Judge Becker (now swiftly retiring before expiration of his term) who benefited from that unlawful indemnification, but "so-ordered" that unlawful indemnification that was meant for the prosecutor, the police and for himself.

So, this "arrangement" is no surprise from the point of view of integrity of the Delaware County District Attorney's office and this particular District Attorney specifically.

But, surprise or no surprise, Richard Northrup is running for a County Judge, as well as Porter Kirkwood, another mastermind of this completely unconstitutional "arrangement" pandered to voters as "savings" to the county, while it has the potential to blow up into the taxpayer's face with as many expensive federal lawsuits, as many DWI prosecutions this new prosecutor will handle.

Voters and taxpayers of Delaware County - don't get hooked up on the false promises.

Vote for impeachment of Richard Northrup.

Vote for impeachment of Porter Kirkwood.

And do not vote them into yet another public office, now a higher and even more powerful office, the judicial office where they will act like corrupt kings with "immunity".

With such a "record of integrity" before they are on the bench, when/if they come to that bench, you will have a disaster on your heads much worse than the outgoing judge Becker.

And one more interesting statement of Scott Gleuckert is that the STOP-DWI program (funded by fines and fees paid by convicted criminal defendants) pays the "local law enforcement agencies" to conduct road checks and patrols.

So, when a prosecutor is prosecuting a criminal defendant, he or she is supposed to be neutral.

Moreover, when a police officer is investigating a crime, he is supposed to be a neutral investigator.

Not so on both counts, if both the prosecutor and the police, and the probation with its probationer-paid expensive "programs" supported by violation of probation petitions and by prison/jail convictions, are paid out of convictions.

So, what we have is a perfectly spelled out corruption scheme.

Not to mention that the legal aid attorneys - the details will be in my next post - are, guess what - also paid from conviction fines.

One big happy family! All paid out of conviction fines!  In a county with 95% conviction rate (whether Richard Northrup "compiles" the statistics or not).  In the country with the most per capita imprisoned population than anywhere in the world and certainly than anywhere in the civilized countries.  In the country where prison industry is run by for-profit prisons and constitutes a big business.  In the country which has recently become the target of attention from international community because of its "criminal injustice system", to the point that it warranted attention of the President.

And this little "financial arrangement", pandered for all the good declared reasons, savings to taxpayers and safety on the roads, is the cornerstone of what is wrong in our criminal justice system.  

Because this "financial arrangement" where the prosecutor and the police are paid out of conviction rates is called corruption of the prosecutor and the police - and it stinks.

As to the "human cost" of this corrupt arrangment, on top of the money that mostly indigent DWI defendants must pay in terms of various "fines", "surcharges", treatment costs, "crime victim funds", DNA funds, ignition interlock devices "rented" per month from probation agencies or agencies associated with probation, at ungodly prices - unlawful DWI convictions brought about by perverse financial incentives for the police and the prosecutors have one other potential cost, complete loss of ability to earn a living in rural communities where there is no public transportation and where being able to drive is an equivalent to hold any meaningful employment.

Recently, the New York State Department of the Motor Vehicles introduced regulations where an individual loses his or her driving license PERMANENTLY, FOREVER if he or she has three alcohol or drug-related convictions.

Those convictions are obtained very easily.

First, you are stopped by a STOP-DWI funded police officer who is paid based on how many stops leading to an alcohol-related conviction he or she can generate.

The officer will then lie to the court under oath (called "testilying") that the officer saw you with "glassy eyes and impaired motor co-ordination".

The local justice (who is most often not an attorney) or the County Judge (who is most likely a former prosecutor) will rubber-stamp that testimony, if it even hears it.  In most cases, there is no testimony.  The legal aid funded out of conviction fines, who will not be assigned to more cases (paying from $60 to $75/hr depending on whether it is a misdemeanor or a felony charge) will plea you "down" to a DAI (driving while ability impaired), which is still a conviction countable towards the "three strikes and you are out".

As a result, you lose PERMANENTLY your ability to earn a living because of corrupt actions of the police and the prosecutors financed through such little arrangements.  

You cannot earn a living without a driver's license in America, especially in rural communities. 

And, when you are unable to get a job because you were stopped by a conviction-funded police officer, prosecuted by a conviction-funded prosecutor, represented by a conviction-funded legal aid, pled down to an "AI" and now have a "record" for purposes of DMV, because you were persuaded, three times, by your conviction-funded legal aid attorney that to go to trial and fight for your rights is not good when an opportunity to "plead down" to an "AI" with "just" 90 days' suspension of your license exists - by such "simple" steps you very easily step, as thousands of New Yorkers do, on a path towards poverty, homelessness and human degradation. 

And that is a human rights problem of constitutional dimensions.

Once again on the composition of the Statewide Commission on attorney discipline - "experts" on the loose

The recent invention of NYS Chief Judge Jonathan Lippman will soon hold the so-called "public hearings" on how to make attorney discipline more "uniform", "fair", and "effective". 

I already blogged about the composition of the Commission and as to how the Commission scheduled the so-called "public hearings" where both the composition and how the "public hearings" are scheduled suggests that the Commission is not serious about its role in changing the situation where attorney discipline is used not for protection of the public, but as a shield for politically connected attorneys and as a sword against critics of such attorneys' misconduct and against misconduct in the judiciary and other branches of the government.

I would like to note once again the point that I made earlier in my blogs in connection with discussion of the case North Carolina Board of Dental Examiners v Jacobs, a case decided by the U.S. Supreme Court that was vigorously opposed by multiple bar associations as bringing about the doom to the way discipline is imposed - by stripping the so-called immunity from lawsuits for actions violating anti-monopoly federal laws of the United States against members of disciplinary committees who are practicing attorneys and players in the same market themselves.

In that blog, posted before the U.S. Supreme Court has made its decision actually stripping the immunity for monopolistic activities of attorney members of disciplinary committees, and before I filed the currently pending request with the Federal Trade Commission to investigate and prosecute all attorney disciplinary committees in New York State for monopolistic activities, as the U.S. Supreme Court provided in North Carolina Board of Dental Examiners v Jacobs, I raised an issue pertaining to the oral arguments in that case that I've heard (audio recordings of oral arguments before the U.S. Supreme Court is publicly available on the Internet).

The issue was raised by one of the U.S. Supreme Court judges - isn't it appropriate to have experts "serve" on such committees, and who other than dentists (or, in the case of the Statewide Commission - attorneys) would know better the ins and outs of the practice of their profession, to see whether an attorney violated rules of ethics and of professional conduct, whether discipline is necessary, and what kind of discipline is necessary.

My response to that question - then and now - is:

Problem No 1 - the role of an expert in any litigation is that of EDUCATOR OF THE FACTFINDER, and only when the factfinder NEEDS such education.

An expert whose knowledge is being used in litigation to inform the factfinder may never BE the factfinder, may never be conflated with the factfinder.

In fact, in all jury trials, attorneys for parties painstakingly weed out attorneys and legal experts from the jury, so that the factfinders make their determinations only on evidence presented, and not be swayed by pre-conceived notions of experts on the jury.

Problem No. 2 - an expert in New York state is not allowed to testify on the ultimate issue of litigation.  It is a settled rule.  Putting an expert as part of the factfinder undermines that rule.

Problem No. 3 - Moreover, even when the expert's knowledge is required, that expert must be NEUTRAL - another must.

When the so-called expert has a vested financial interest in the market he is testifying about, when the expert is deriving income from that market as a participant in that market, his or her testimony is tainted and is inadmissible as a matter of due process, fairness and equity.

Expert neutrality is a well settled rule.

Problem No. 4 - there is no jury to sway on that Commission, all other members-factfinders have vested interest in preserving the status quo, as bad and as stinking as it is at this time.

With that in mind, I would like to focus on two individuals chosen by Judge Lippman to "serve" on the Statewide Commission for attorney discipline.

One is professor Stephen Gillers.

The other is professor Hal Lieberman.

I was educated in law school in legal ethics on books of professor Stephen Gillers.  Those books are still actively sold on Amazon.com and, I am sure, law students all over the country are being taught about "legal ethics" based on Professor Gillers' law books. 

The problem with professor Stephen Gillers on the Commission is problems No. 1  and No. 2, and, I would say, to a certain degree No. 3 - an expert-factfinder, an expert on the jury.  Even if the factfinder would consist, as it should have, of a cross-section of members of the public, since the purpose of attorney discipline is protection of the public, presence of an expert as part of the factfinder rather than as an expert whose opinion is consulted by the factfinder without including the expert into the decisionmaking.

The biography of Professor Gillers suggests that he derives his livelihood from teaching about regulation of the legal profession.

Thus, professor Gillers will not be the one to suggest what the public needs to receive truly independent legal services - a full deregulation of the market of legal profession and liberation of the legal professionals from the slavery of brown-nosing the judiciary under the fear of losing their livelihoods that is in the judiciary's hands, and to turn a blind eye to rampant judicial misconduct occurring in practically every court in this country, for the same fear of losing their livelihood.

Instead, professor Gillers publishes articles such as "Lowering the bar" where he indicates that the public is not properly protected by attorney discipline - but makes no mention whatsoever in that 58-page article of the constitutional infirmities of attorney discipline procedure in New York, its failure to protect the public because of its selective non-enforcement to influential and politically connected attorneys, as well as attorneys who are family, employees or friends of influential people, including judges, of the rampant bad faith and self-interest in the attorney disciplinary committees.

In that same article, "Lowering the Bar", (available on the Internet for free in pdf format, please, look up the article, it's worth it - but there is no way I can interlink on this blog a pdf document  downloadable from that website), which was highly praised in the press, Professor Gillers expresses a belief that attorney discipline in New York is imposed mostly for three reasons:

• violence;
• various types of dishonesty in and out of court;
• neglect of clients.

Professor Gillers makes NO references in his article to the possibility of attorney discipline as:

• elimination of a successful solo independent competitor by the members of the disciplinary committees, practicing attorneys;
• elimination of a critic of judicial misconduct, a civil rights or a public defense attorney

Raising such issues will, of course, most likely result in Professor Gillers not being able to "serve" on multiple committees around the country and to lecture around the country on attorney regulation - the sterilized version.

Since Professor Gillers closes his eyes as a scholar to these important topics which should be core topics in protection of the public from truly bad attorneys, there is no reason to expect Professor Gillers to stand up to these issues as a member of the Statewide Commission.

The problems that I see with appointment of Professor Hal Lieberman, adjunct professor of the Columbia Law School, (my personal opinion, protected by the 1st Amendment, as it is on matters of public concern, protection of the public from incompetent attorneys while ensuring true access to courts to all members of the public guaranteed by the 1st Amendment of the U.S. Constitution) are problems No. 1, 2 and, most prominently, 3.

Professor Hal Lieberman was a trial counsel in New York attorney disciplinary committee for the 1st Department for 13 years, as he discloses in his biography for the book on attorney discipline that he sells on Amazon for $209.00 a piece, and is and has been for decades a practicing attorney representing other attorneys before that same disciplinary committee.

In other words, Professor Lieberman is an insider of the attorney disciplinary system deriving his income from the system, and as such, in my opinion, he fails on the issue of expert neutrality - and is especially dangerous as an expert-factfinder whose authority may sway the factfinders.

While Professor Lieberman did raise publicly issues whether attorney disciplinary proceedings in New York are fair, same as Professor Gillers, Professor Lieberman will not seriously consider protection of the public - because such a stance will run contrary to the interests of his paying clients whom he represents before the disciplinary committees and who provide for adjunct Professor Lieberman's livelihood.

Moreover, Professor Lieberman made a statement in one of his articles or blogs which I found disturbing, in one of his blogs, that the fact that disciplinary committees win 90% of disciplinary cases somehow is evidence of attorney discipline being administered "vigorously" and "effectively".

Yet, one area where disciplinary prosecutors do not dedicate any of their otherwise "vigorous" and "effective" work is - criminal prosecutors (and other influential attorneys, of course).

If that is true, then 95% or more of criminal convictions in this country is evidence of vigorous and effective work of prosecutors.  Yet, prosecutors (also licensed attorneys subject to attorney regulation from which Professor Lieberman derives his income) are subjected now to the increased public concern and awareness of their rampant misconduct. 

Moreover, the system of criminal justice rendering 95% of criminal convictions and the highest in the civilized and uncivilized world rate of incarceration per capita of population in a for-profit run prison system is the target of increasing criticism around the world - and, most recently, in the presidential address. 

Hal Lieberman, a professor, a lawyer and an insider of the disciplinary system, simply cannot be so naive as stating that 90% success rate (and maybe higher) of disciplinary committees in New York is the result of those committees' hard effective vigorous work - and not the crooked way the system is set and the even more crooked way in which the system works, whitewashing the high-and-mighty attorneys and dedicating the "limited" resources in a seemingly unlimited way against whistleblowers of judicial misconduct, solo criminal defense and solo civil rights attorneys.

I have written on this blog extensively, with documentary examples, of bad faith, fraud, incompetence and outright political retaliation in attorney disciplinary committees.

Multiple attorneys cited in multiple lawsuit rampant misconduct of attorneys in disciplinary committees.

Recently, a lawsuit was filed as to the policy of the 1st Department disciplinary committee, where Professor Lieberman worked for 13 years, of a long-standing policy of white-washing and destroying files and complaints against politically connected attorneys.

Recently, I FOILed statistics on attorney discipline in New York.  New York Court Administration, the same court system under the guidance of the same Judge Lippman, denied me access to that statistics and to records of appointments to the disciplinary committees.

It appears that New York court system - intentionally, in my view - does not keep statistics as to whether discipline is imposed upon solo attorneys, civil rights attorneys, criminal defense attorneys disproportionately to attorneys from large law firms employing relatives of judges.

Archives of complaints in the disciplinary committees are not preserved.  I know it for a fact as to the 3rd and 4th Department where I have personal experience with denial of access to those files, on my own behalf and on behalf of my client (and husband), and with denial of my complaints against attorneys working for or connected to the government, with the letters of denial being template letters bearing no file numbers of attorney names and preventing the tracking of the disciplinary files of such attorneys.

In fact, in the 1st Department disciplinary committees, according to an insider's lawsuit of attorney Anderson, complaints against politically connected attorneys are destroyed and whistleblowers of that misconduct, such as attorney Anderson, fired.

Lawsuits against disciplinary attorneys are routinely dismissed on grounds of "judicial" immunity.  Yet, disciplinary attorneys act as prosecutors - part of executive branch - in courts which legislate, adjudicate and, through disciplinary committees as "arms of the court", prosecute attorney discipline, a complete disdain to the concept of separation of powers or the true rule of law.

None of that I saw in Professor Lieberman's blog, or his articles.

I guess, touching upon issues that are too sensitive, which are at the core of what is wrong with the legal system, which are at the core of why there is no hope for truly independent legal representation in the State of New York while attorney regulation exists the way it does, may undermine financial well-being of the "expert", and, as part of the Commission, investigator and trustee of public safety and of public access to legal services. 

In my personal opinion, it appears that Professor Lieberman's vested financial interest in preserving the status quo of attorney regulation - including his insider ties to the industry and his income derived from representing attorneys before disciplinary committees and being on speaking terms with attorneys in such disciplinary committees - undermine the neutrality or appearance of neutrality, for that matter, of Professor Lieberman as an expert/participant in the Statewide Commission that is seeking to establish uniform and fair attorney discipline while protecting the public.

For that reason, I will not really be holding  my breath waiting for reports from the Commission advised by such experts.

On the nature of orders to show cause

It is my experience that both the pro se litigants not trained in law, and seasoned attorneys - and even judges - often have an interesting misconception about the nature of what is called "an order to show cause".

The usual "order to show cause" is - as it says - an order of the court, with a peculiar language that is the source of confusion.

The "order to show cause" usually demands that the litigant or his/her attorney "show cause" to the court as to why something should NOT be done.

This negation, once again, is the source of confusion, leading the party or attorney against whom the order to show cause has been filed (and often, the court) to believe that the burden of proof is somehow on the party or attorney who the order to show cause demands to show why things should NOT be done to them or against them.

Yet, as a matter of law, an order to show cause is nothing other than a motion - only a motion made upon an order of the court.

An order to show cause may be made upon application of a party or a party's attorney if the party is represented, or upon the court's own application (called sua sponte).

The reason to apply for an order to show cause for a party or attorney is usually to obtain some ruling from the court BEFORE the motion that is made by order to show cause is reviewed and decided, such as - some immediate relief (injunction in a divorce action against looting of marital assets by one of the divorcing parties, or prohibition to one of the parents from taking a child out of the state while the motion for temporary custody is pending).

Orders to show cause can provide for a variety of immediate reliefs, most commonly they change the statutory deadlines for service of process.

As another illustration, usually a motion on notice may be made by personal delivery of the properly made notice of motion (CPLR 2214(a)) and supporting affidavits or by delivery by mail if the party to be served already appeared in litigation, pro se or by an attorney (pro se parties may not serve their own motions, they should ask somebody else to do that and provide an affidavit of service so that the pro se party is able to file the affidavit of serve to the court before the returnable date).

In New York, a motion on notice should be personally delivered at least 8 days before the "returnable date" of the motion, the date when the court is to hear the motion. 

If service is by regular mail, then 5 days must be added to the 8 day minimum. 

By overnight mail - 1 day should be added. 

If the moving party wants to be able to have time to react to the opposition to the motion, it is prudent to serve the motion 21 days or more in advance of the returnable date (to pick the returnable date, if that is possible, 21 days in advance of service of motion) and demand from the opponent, under CPLR 2214(b), to serve responding papers within 7 days of the returnable date.

If a motion on notice is made before a judge who has regular motion terms in a particular court, it is easy to verify when the next motion term of that particular judge is going to be and, if it will be far enough in time to allow for the statutory period to serve the notice of motion, the party may pick that date without the court's permission, put it into the notice of motion and serve the opposing party with a "notice of motion" and supporting papers (affidavits, exhibits).

If the presiding judge does not have a regular motion term in that particular court, the party or attorney intending to make a motion may inquire with the court clerk to set that date, and then make the notice of motion.

With motions made on "orders to show cause", shortened service may be ordered by the court.  The court may order service by mail within less than the statutory minimum of 13 days, or may order service by alternative means, such as fax or e-mail, which would not be an appropriate way to serve a motion on notice, the statute does not allow such means of service for motions made on notice.

One needs to realize that if one is asking for permission of the court to sign an order to show cause, one can get three answers -

• "yes", the court will sign the order to show cause as it is drafted and suggested by the party and grants all the preliminary relief requested before the motion is heard and decided,
• "no", the court refuses outright to sign the order to show cause and, if there is no anti-filing injunction upon the party, the party may then proceed to make the motion on notice (while most likely losing a filing fee of $45.00 already paid for the order to show cause), and
• "yes, but" - when the court allows the motion on an order to show cause to proceed by signing the order to show cause, but in a modified format, crossing out some relief requested, and modifying the drafted order to show cause as to other relief requested.

Yet, with that said, that is the end of what distinguishes a motion made on an order to show cause from an order made on a notice of motion.

What unites both motions made on notice of motion and motions made on orders to show cause is:

1) both are still motions, to be heard and decided by the courts, with all applicable laws as to how a motion is properly made (in New York - a motion is made when it is served, and served properly, so a defect of service in making a motion may defeat a motion in its entirety, be it a motion made on notice or on an order to show cause);
2) the burden of proof is still on the moving party - the party who either made a motion by serving a "notice of motion", or the party who applied to the court to first sign the "order to show cause" and made a motion by serving the "order to show cause" and papers upon which it was granted, and served it in the way that the order to show cause required.

The language demanding from the opposing party to "show cause" why things should NOT be done to the party is, once again, confusing, and may suggest that the burden of proof in motions made on orders to show cause somehow shifted to the opposing party.

As a matter of law in New York, that is not so.

The moving party still bears the burden of proof - in other words, the party who applied for the order to show cause must still FIRST prove to the court that it is entitled to relief, and only then the court can grant the motion if there is no opposition. 

I am not suggesting that if the party obviously did not make its burden of proof, one should not oppose an order to show cause, it is a dangerous strategy, because in our day and time, with overworked, or biased, or inexperienced, or lazy judges (motion is TL;DR - "too long, did not read"), lack of opposition is sometimes a sign that a motion should be granted no matter whether there is an entitlement to relief in law or not.

What I am saying is that the opposing pro se party should closely analyze whether the party who applied for the order to show cause "met the burden of proof" and is entitled to relief as a matter of law when opposing the motion, because often pro se litigants are shell-shocked by the words "why XYZ should NOT be done" to them - indicating to them that XYZ is somehow inevitable.

Orders to show cause can also be made on the court's own motion (sua sponte).  I always believed that such orders are inappropriate because they put the court in a position of an advocate, witness and adjudicator/judge in the same case.  Yet, such orders do happen, and they should be opposed in the same way.

If the court undertakes to make a motion, it must abide by rules applicable to motion practice: the motion must be properly served, and the court must meet the burden of proof before granting - to itself, obviously - relief it is seeking.

And sua sponte motions should be opposed the same way as motions by parties are opposed.

This blog has been posted as a response to several conversations I had with my readers, pro se parties in litigation, who felt confused and intimidated when facing orders to show cause.

A motion to vacate the ex parte decision in the Mokay trial was filed

New York statute, CPLR 5704(a) allows to file motions to vacate directly to the Appellate Division of orders of the court made in an ex parte manner.

Since that is exactly what Judge Kevin M. Dowd did in the Mokay case (see my earlier blogs on pertaining to the Mokay saga searchable by the words "Mokay" in the search window on the right of the blog) by proceeding to trial in the absence of counsel who was on a legitimate documented medical leave, diagnosed by a licensed physician for a documented back injury and pain, and by making a decision in that ex parte trial, of July 12, 2015, such a decision is, as a matter of law, in my legal opinion, an ex parte decision addressable under the CPLR 5704(a) to the Appellate Division.   

For that reason and to protect my client's rights, I have filed a motion to vacate pursuant to CPLR 5704(a) and my client's constitutional right to a jury trial with the Appellate Division.

An attorney, by being injured and being on a medical leave ordered by her physician, is protected by federal privacy laws and by the federal Americans with Disabilities Act which pre-empts any inconsistent state law, and no court may order her to appear despite her doctors orders not to work and despite her physical inability to move due to her injury.

No court may rule that by not appearing because of her injury and medical leave, an attorney somehow waives her client's state constitutional right to a jury trial.

Let's see what the Honorable appellate court will make out of Judge Kevin Dowd's spiteful shenanigans.