Cozier cannot be cozier - or is Barry Cozier just too cozy to practice law while appointing judges and advocating for their pay raises, while trying to make attorney disciplinary system uniform, efficient and fair?

On July 22, 2014, Barry Cozier, private attorney and a retired justice of the Appellate Division 2nd Department (retired since 2006) was appointed by NYC Mayor De Blasio as Vice Chair of the Mayor's Advisory Committee on the Judiciary.

The Committee is reportedly responsible for "recruiting, screening, and nominating candidates for judicial appointment to the city’s Family Court and Criminal Court, as well as the Civil Court for interim appointments".

On February 17, 2015, in his State of the Judiciary address, New York Chief Judge Jonathan Lippman announced creation of the New York State Statewide Commission for Attorney Discipline, a supposedly independent commission that was charged to "conduct a top-to-bottom review of the system throughout the state to assess what is working well and what can work better, and to offer recommendations on fundamentally reshaping attorney discipline in New York".

On March 30, 2015, Lippman populated the Commission by appointing its members, the overwhelming supermajority of which were attorneys.

On March 31, 2015, Lippman appointed Barry Cozier to Co-Chair to the Statewide Commission for attorney discipline with the then-Chief Administrative Judge A. Gail Prudenti.


On July 1, 2015 Lippman ALSO appoints Barry Cozier to be Vice-Chair of the Commission on Judicial pay raises.  Of course, Lippman is up for mandatory retirement at the end of this year.  He will not directly benefit from pay raises, but he does have an interest to keep his remaining judiciary buddies satisfied, since his friend Sheldon Silver has gone down and he needs to forge some connections and some favors before he left his position as Chief Judge.

On July 27, 2015 Gail Prudenti, Co-Chair of the Commission for Attorney Discipline, retires to pursue a career as an administrator in Hofstra Law School.

On August 10, 2015 Lippman promotes Barry Cozier as Chair to the Commission for Attorney Discipline.

Barry Cozier is also, reportedly, a long-time adjunct professor at Fordham Law School and he is on the Board of directors of the Fund for Modern Courts.

I also noted that on the website of Fordham Law School Barry Cozier is listed as a Supreme Court justice up to present time - screenshot taken today is below:

 

Here is a screenshot below from NYS judicial directory that does not list Barry Cozier as a Supreme Court Justice.

 

Barry Cozier retired from the bench in 2006, according to his advertising in another place, on the website of the law firm where he is partner.   11 years is enough time to change your information on your adjunct professor page and not mislead the public that you are still a judge.

Of course, Barry Cozier called himself a judge even now, while presiding over hearings in the Commission for Attorney Discipline - and while he announces on the webpage of his firm that he is not a judge, since 2006.

11 years since the retirement is enough to get it through his head that he is no longer a judge, and to get the statement that he is a judge from his advertisement at the Fordham School of Law page.

False advertisement is a disciplinary violation.  Barry Cozier knows the rules, and knows that they must apply equally to all attorneys.

His Commission's report specifically deals with advertisement violations by attorneys and are calling for a "uniform penalty" for such violations:

Are we supposed to believe that Barry Cozier, who picks judges in the De Blasio Commission and advocates for judicial pay raises in the Lippman Commission, ever be disciplined for false advertising?  I doubt that.

But I am positive that Barry Cozier's sitting on panels picking judges, advocating for judicial pay raises, and then presiding over public hearings where judicial corruption is presented as "an elephant in the room" at the core of the mess that attorney regulation in New York is in, that constitutes an irreconcilable conflict of interest.

Barry Cozier is a PRIVATE ATTORNEY who is a partner in a large law firm that appears in the same courts for which Barry Cozier appoints judges and sets salaries for judges.

Are we supposed to honestly believe that his activity on those panels does not influence judges in front of whom he and his law firm appears?

Barry Cozier is the WRONG person to be a fact-finder in public hearings raising the issues of:

• judicial corruption;
• self-dealing;
• selective enforcement of attorney discipline;
• violations of attorney advertisement rules

because he is, apparently, ENGAGED in all of the above.

After reading all of the above, I encourage you to watch 

1. Barry Cozier's behavior during the testimony of Elena Sassower at the public hearing in New York City - his tense and hostile body language, his rudeness, his deliberate lack of control over the bulky male armed court officer hovering over the petite Elena Sassower trying to shut her up and following her around the hearing room;
2. Elena Sassower's interview after the hearing where she says that members of the panel - including Barry Cozier - fled without reviewing what she had to offer them, and
3. The video report by Gary Jacobs of the Long Island Backstory indicating that the Cozier-Chaired Commission threw Gary Jacobs out of the building and threatened to throw him off the sidewalk in front of the building where the hearing was supposed to be held, and after that, it lied in its Report, by omission, showing that Gary Jacobs and his PHOTOGRAPHER were present at the public hearing, but omitting the fact that Gary Jacobs and his VIDEOGRAPHER were thrown out of the building, and not providing the link to Gary Jacobs out-of-the-building video report calling the Commission a sham.

Of course, 6 years ago, Elena Sassower testified in New York Senate in opposition to appointment of Chief Judge Lippman, testified about his corruption, about a pending investigation against him by the Judicial Conduct Commission that should have precluded his confirmation for the position of Chief Judge.

That is, the Lippman who was confirmed because the Senate was led by Lippman's childhood buddy Sheldon Silver who, of course, disregarded any opposition to Lippman's appointment.  Sheldon Silver who is now indicted by the feds for corruption.

The Lippman who ruled Sheldon Silver's way as soon as he got the confirmation to the high court with Lippman's help while, reportedly, bypassing multiple Senate rules.

The Lippman who gives Cozier his cozy appointments that Cozier uses to advertise and promote his private business.

So, Elena Sassower could not possibly get a fair review by Cozier, not when she was telling Cozier, part and parcel of the cozy legal cartel between private corporate attorneys and the judiciary, that that cartel is at the core of the problems with the "access to justice" crisis that Lippman hypocritically claims from high pulpit, while organizing behind the scene.


People who sat on that Commission, starting with Cozier, are the PROBLEM, not the solution.

And the only way to upend that apple cart, reduce corruption in court proceedings and ensure independent representation in court is to DEREGULATE the legal profession COMPLETELY, taking it away from the grips of corporate interests like Cozier's.

Peter Skelos engaged in soliciting unauthorized practice of law - according to his own recent ruling

I just ran a blog about the New York State Statewide Commission for  inviting legal ethics Professor James Milles out of SUNY Buffalo Law School to testify as a legal expert before the Commission.

I also mentioned in that blog that Professor James Milles is not shown as a licensed attorney in New York State Attorney Directory.

That brings up an extremely interesting point.

One of the members of the Commission was Peter Skelos.  Peter Skelos is a recently retired judge of New York State Appellate Division 2nd Department, one of 4 courts in the State of New York that handle attorney licensing.

I wrote about Peter Skelos on this blog here and here.

On June 3, 2015 Peter Skelos, as part of a judicial panel, issued a decision in the Matter of Joel R. Brandes denying reinstatement to Mr. Brandes, a disbarred attorney, for allegedly engaging in unauthorized practice of law.

Here is what Peter Skelos, together with companion judges, said in that decision:

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Quote
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We find that Mr. Brandes engaged in the unauthorized practice of law during the period of his disbarment when he provided paralegal services via the Internet. Mr. Brandes represents that he has since ceased this portion of his Internet business because it proved unprofitable. Mr. Brandes's provision of such services through his corporation, Joel R. Brandes Consulting Services, Inc., during the period he did operate this portion of his business, violated Judiciary Law § 90(2) and this Court's order of disbarment, which, inter alia, directed that Mr. Brandes "desist and refrain from . . . practicing law in any form, [and] giving to another an opinion as to the law or its application or any advice in relation thereto." 

"The practice of law involves the rendering of legal advice and opinions directed to particular clients" (Matter of Rowe, 80 NY2d 336, 341-342). Under the guise of being a paralegal, Mr. Brandes, a noted authority and expert on New York family law and divorce (see Brandes, Law and the Family New York [2d ed rev 1997] and cumulative supplements), for instance, would give advice to an attorney, who had a difficult case.  Mr. Brandes would speak to the attorney over the telephone or by e-mail regarding a particular aspect of the difficult case. Upon presentation of the particulars of the case or problem, Mr. Brandes would guide the attorney to the applicable statutes and precedent cases, and offer his past experience. Such rendering of legal advice or opinion constitutes the practice of law, since Mr. Brandes in so doing, exercised professional judgment directed at the legal problem of a particular client, notwithstanding the fact that Mr. Brandes had no direct contact or relationship with the client. In many other instances, Mr. Brandes contracted to draft briefs and other litigation papers for other attorneys. Given the fact that Mr. Brandes was vastly more experienced in matrimonial and domestic relations matters than the attorneys for whom he was performing services, the provision of such services can be deemed to be performing legal services for a client, namely, the attorney for whom he drafted the brief and documents. Such giving of advice and performance of legal services certainly violated the spirit, if not the letter, of Judiciary Law § 478 (see 22 NYCRR 691.10[a]).
Accordingly, we find that Mr. Brandes does not demonstrate the requisite fitness and character to practice law.

ENG, P.J., RIVERA, SKELOS, DILLON and BALKIN, JJ., concur.

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Unquote
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First of all, it must be noted that Peter Skelos does not rely ON THE STATUTE in deeming certain behavior in violation of a CRIMINAL STATUTE.

He relies upon a case Matter of Rowe and indicates that Mr. Brandes' behavior violated the "spirit, if not the letter" of the criminal statute.

What constitutes a crime in New York is a matter of statute, and it is a matter of statute, because what constitutes a crime requires a clear notice to the public of prohibited conduct BEFORE such conduct is prosecuted, not AFTER a judge, like Peter Skelos decides after the fact which conduct WAS criminal, according to judge's subjective opinion as to the "spirit, if not the letter" of the criminal statutory law.

When the judge rules on the basis of his own perception of the "spirit, if not the letter" of the criminal statutory law, the judge engages in unlawful amendment of a criminal statute which the judge has no authority to do, only the Legislature has authority to change criminal statutes.

Peter Skelos and his fellow judges who authored the Matter of Brandes, obviously, did not care about the law or the doctrine of separation of powers.

The way Peter Skelos decided the Matter of Brandes is not only a violation of separation of powers, but a classic ex post facto law and bill of attainder, both prohibited by the U.S. Constitution that Peter Skelos was sworn to protect as a judge and as an attorney. 

But, the beauty of Peter Skelos' behavior is that, when he made his decision in Matter of Brandes, he was not going to adhere to the law he himself unlawfully created against disbarred attorney, when he himself needed law expert testimony.

So, as of June 3, 2015, Peter Skelos MADE the law in the State of New York that provision of services as a law expert by a person who does not have a law license, constitutes the crime of unauthorized practice of law.

Then, the same Peter Skelos, as a member of the Statewide Commission on Attorney Discipline, invites a person who does not have a law license, Professor James Milles, to engage in what Peter Skelos said was unauthorized practice of law in front of the Commission.

Aiding and abetting unauthorized practice of law is a crime.

So, will Peter Skelos be prosecuted for, first, deeming a certain conduct as UPL from the judicial bench, and then inviting, prescreening and allowing expert testimony before the Commission which, according to Peter Skelos' own recent appellate ruling, was a crime of unauthorized practice of law? I doubt it, too many connections in high places.

Double standards in the honorable legal profession are simply screaming, and Peter Skelos appears to feel absolutely immune in anything inappropriate he is doing, like his recent jumping off the bench after the indictment of his brother, at that time the speaker of NY Senate, in order to be able to catch a business opportunity in a law firm favored by the new Speaker of the New York State Legislature.

I am sure that, if sued as a member of the Commission, Peter Skelos will claim some kind of immunity for malicious and corrupt, and discriminatory acts.

So, Peter Skelos as a judge said a disbarred attorney Joel R. Brandes, an expert in law, may not provide expert services, it is unathorized practice of law.

Peter Skelos as a member of Statewide Commission on Attorney Discipline established by Chief Judge of the State of New York, invited to testify a law expert James Milles, who is not an attorney, 

to testify to the Commission, thus providing to the Commission legal services as a law expert (in accordance with Peter Skelos' decision as a judge in the Matter of Brandes), and whether that law expert service to the Commission was for a fee or not, doesn't matter.  

Yet, I will make it a point to notify Joel R. Brandes and his attorney as to the interesting developments in:

• Mokay v Mokay - a Delaware County Supreme Court case, Index No. 2007-695 - where Judge Kevin Dowd, on June 23, 2014, called it "mind-boggling" and "bizarre" and rejected my argument when I pointed out exactly what Peter Skelos said in the Matter of Brandes, that drafting of legal papers by a paralegal constitutes unauthorized practice of law; and allowed attorney Richard Harlem, son-of-a-judge, to charge legal fees for legal services of his unlicensed paralegal Patrick Orr in drafting legal papers, an affirmation and a memorandum of law;
• Neroni v Zayas - a U.S. District Court for the Northern District of New York case, Case No. 3:13cv127 - where Judge Lawrence Kahn claimed, dismissed claims that what is not enforced as UPL against never-licensed individuals, is enforced as UPL against disbarred attorneys, pointing out specifically at paralegal and law expert services;  Judge Kahn while dismissing the pre-enforcement claims challenging UPL statutes for selective enforcement, vagueness and overbreadth on March 31, 2014 and on June 4, 2015, claimed that it is not reasonable for Mr. Neroni to think that UPL statutes will EVER be interpeted by courts as including work as a law expert;
• Matter of Brandes - a NYS Appellate Division 2nd Department case where Judge Peter Skelos with companion judges ruled that what Judge Dowd said was not UPL for the person who never had a law license, is UPL for a person whose law license was revoked, the exact claim that Judge Kahn rejected as unreasonable;
• Testimony as a law expert of non-attorney Professor James Milles before the Commission, including Peter Skelos, by invitation on August 4, 2015, 4 days after Peter Skelos' retirement from the bench where he made a decision in Matter of Brandes two months prior - where Professor James Milles is not an attorney, is giving expert testimony to the Commission, by Commission's invitation which qualifies as being the Commission's expert and is, according to the ruling of Commission member Peter Skelos made against Mr. Brandes, engaging in unauthorized practice, which the same Peter Skelos, as member of the Commission has actively solicited, aided and abetted

I hope Mr. Brandes can reinstate his law license using these cases, and can use them to make a successful motion to vacate the denial of reinstatement, based on new evidence.

And as to Peter Skelos and his double standards and unlawful behavior - it appears it runs in the family.  After all, denying to a disbarred attorney what Peter Skelos solicited from an unlicensed law professor is not the first appearance of impropriety that Peter Skelos, brother of the recently indicted Dean Skelos and uncle of the indicted Dean Skelos' son, has committed - knowing that his own and his family members' high status and connections will shield him from any accountability.

Runs in the family, doesn't it? 

And, the right person to sit on this particular Commission.

The now-taboo word the NYS Statewide Commission on Attorney Discipline did not use in its Report (only in testimony): self-regulation of the legal profession as a federal crime

Since last week, I have been analyzing the Sept. 24, 2015 Report and Recommendations of the New York State Statewide Commission for Attorney Discipline (from now on in this blog post - the "Cozier Report", named after the Chair of the Commission, private attorney and former judge Barry Cozier who continues to call himself a judge), and I could not shed the feeling that something that I usually see in attorney's reports and statements about the system of attorney regulation, was missing.

It was like a phantom pain, I could not put my finger on it.

Then it dawned on me.

The word "self-regulation" is entirely missing from the Report.

I did find a statement about lawyers "self-policing" its own profession made in the testimony of Mr. Krinsky in the public hearing before the Cozier Commission in New York City (see p. 12 of the transcript).

Attorney Krinsky spoke on behalf of New York State Academy of Trial Lawyers, see witness list.

Here is Attorney Krinsky's registration information.

I do not know whether Mr. Krinsky read the North Carolina Board of Dental Examiners v. FTC case or was aware of it.

At least some members of the Commission certainly were, because I personally notified them through my pleadings, moreover, knowledge of the law is presumed.

Attorney Krinsky had duty of candor to the tribunal.

The Commission is a tribunal.

Making a statement about self-policing as a good thing, after the U.S. Supreme Court saying that self-policing of a profession by members of the profession under the guise of state licensing is an antitrust violation, in my opinion, was frivolous and a disciplinary violation for an attorney.

Moreover, according to the Commission's information on its website, testimony of witnesses was pre-screened, so the Commission knew what Mr. Krinsky was going to say and intentionally allowed such misleading testimony, which was a disciplinary violation for all attorney members of the Commission.

As of February 25, 2015 the U.S. Supreme Court has branded "self-policing" by private professionals of their own profession under the guise of state occupational licensing as an antitrust violation and stripped such "self-policers", members of disciplinary committees, of their immunity in antitrust civil lawsuits.

Bar associations, as I wrote before on this blog, filed "friend of the court" briefs in droves to prevent that case from being decided the way it was eventually decided, and the Cozier Commission was created because of the legal profession's fear of the impact of that case upon their protected fiefdom.

Another member of the legal profession who was trying to revive an already dead horse, the concept of "self-regulating profession" that has become criminal as of February 25, 2015, was Professor Milles, Professor of legal ethics from SUNY Buffalo Law School.  I wonder if Professor Milles was aware of the ruling in North Carolina Board of Dental Examiners when he continued to speak about "self-regulating" profession (see Buffalo transcript, p. 55) and about drilling into his students and the public the idea of respect into what has already become criminal behavior.

 According to New York State registration website, Professor James Milles is not a licensed attorney in New York.

Yet, even if Professor Milles statement was not a disciplinary violation as an attorney because he is not an attorney, Professor Milles is teaching future lawyers and is embedding into their heads that they must respect what has become criminal behavior, and embeds that, through his authority as a professor, into the heads of the public.

Once again, the Commission, consisting nearly entirely of lawyers, and hearing panels in New York City, Buffalo and Albany consisting only of lawyers, pre-screened testimony of all witnesses who wanted to testify orally by requesting prior written submissions of that testimony, so Professor Milles' statements about teaching respect to what was characterized by the U.S. Supreme Court as a federal antitrust violation, was approved by the Commission - because no statements came from the Commission attempting to correct Professor Milles who was misleading the public, not during the hearing and not in the Report and Recommendations of the Commission.

By the way, by putting nearly only lawyers on the Commission and only lawyers into the hearing panels, the criminal "self-regulation" continued.

Thus, the Commission intentionally allowed, without any corrections, the misleading testimony that self-regulation of the legal profession is proper and should be further respected, instead of prosecuted as a crime.

It appears that Professor Milles is either not keeping himself up to par on the relevant law, or, being a professor and knowing the applicable law, intentionally misled the public by testifying that self-regulation of the legal profession, which was branded as a federal antitrust violation since it's done under the guise of state licensing, still warrants respect, and describing that "we", as "we in the Commission", or "we in the legal profession", or "we the legal ethics professors" "are trying to infiltrate respect for the disciplinary process, for the idea of the self-regulating profession".

Nothing like a legal ethics professor trying to "infiltrate respect" for criminal behavior.

I already wrote about Professor Milles' testimony to the Commission earlier in this blog.

There were no statements about "self-regulation" made in the Albany hearing as far as I could see, please, correct me if I am wrong.

Here are two excerpts from the decision of the U.S. Supreme Court about "self-regulation" of a profession by members of the profession:

With no oversight required by the U.S. Supreme Court over attorney regulations by "non-sovereign actors", such regulation in its entirety runs afoul of antitrust laws, and making cosmetic changes in it will not suffice.

Yet, a member of the legal profession and a professor teaching legal ethics continued to promote what has been ruled as a federal antitrust violation in public hearings before the Commission, the Commission approved of it by, first, allowing such testimony-by-invitation after pre-screening it, while not allowing 50 willing witnesses to testify, according to Commission's own Report, and making no statements whatsoever in the hearings or in the Report addressing the issue that continued "self-policing", or "self-regulation" of the profession is improper and a statewide STAY of attorney discipline must be imposed until New York State makes its attorney licensing comply with federal antitrust laws.

I would like to repeat my main idea again.

When private professionals claim that what is official called occupational licensing of attorneys by the State of New York, is in reality "self-policing" of private attorneys by other private attorneys, that is an admission to a federal antitrust crime and should be STOPPED and PROSECUTED as a crime, as against all perpetrators of that crime, including co-conspirators and aiders and abettors, instead of "infiltrating respect to the idea".
 

The new case in the 2nd Circuit denying immunity for prosecutorial misconduct - the window is too narrow to address wrongful convictions

I've written on this blog recently about a new case decided by the U.S. Court of Appeals for the 2nd Circuit where the 2nd Circuit denied a criminal prosecutor ANY immunity for presenting to the grand jury "summaries" of billings in a Medicaid fraud case with omissions that were misleading and amounted to misrepresentations.

Thus, the court affirmed a multi-million verdict against the prosecutor that, most likely, will not be paid out of the prosecutor's own pocket, but will be put on us, the taxpayers - which is, of course, grossly unfair, since public officials must pay out of their own pocket for their own wrongdoing.

Yet, while analyzing this case further, I came to the conclusion that the new precedent has an extremely narrow application and will not be applicable to wrongful convictions.

Morse v Fusto involved an extremely rare case of acquittal, which was even more rare that the acquittal was in a bench trial.  Judges, in trials sitting without a jury, usually convict.

And, this double-rarity may explain why immunity was denied.  It was an egregious case, and it was a kind of a "class of one", to a certain degree, because, once again, an acquittal in a bench trial happens as often as, probably, being twice struck by a lightning.

New York has a serious problem about wrongful convictions though, and with non-enforcement of attorney discipline against criminal prosecutors who mastermind such wrongful convictions.

Reasons for such non-prosecution are very transparent.

If you look at the background of the majority of appellate judges and of supreme court and county court-level trial judges, the majority of them have a prosecutorial background.

Thus, any unraveling of wrongful convictions and disciplining people who were prosecutors who brought about those wrongful conviction can very well result in prosecution of a judge, and judges are controlling attorney discipline, so, same as judges invented absolute immunity for malicious and corrupt acts for themselves and for their breeding stock, the prosecutors, judges also prevent disciplining their breeding stock, with all fake assurances to the public that that is not happening, and that prosecutorial immunity is given based on a promise of availability of prosecutorial discipline.

The situation with non-discipline of prosecutors already resulted in a string of articles by ProPublica.org specifically targeting non-disciplining prosecutors who mastermind wrongful convictions, and in a legislative Bill S24 pushing for creation of a special Commission dealing exclusively with prosecutorial misconduct.

While I have mixed feelings about this "Commission" because it is being "modeled" on the Commission for Judicial Conduct which operates as nothing but a glorified shredder of complaints against judges, the whole idea of creating this separate Commission for Prosecutorial Conduct, as well as the mixed vibes sent by the NYS Statewide Commission for Attorney Discipline that, on the one hand, denies existence of nonenforcement of attorney discipline against criminal prosecutors and, on the other hand, attempts to derail efforst at creating the Commission dealing with prosecutorial misconduct, is an indictment to the system of attorney regulation.

The fact that a separate Commission had to be created for the most powerful class of attorneys, and that is being done because of irrefutable statistics that New York has an extremely high rate of wrongful convictions, and evidence that wrongful convictions are caused by prosecutorial misconduct, which remains unaddressed by the existing disciplinary committees.

Yet, if the existing system does not address misconduct that causes the most harm to the public, why does it exist at all?

And shouldnt' then New York criminal prosecutors, as a matter of honor, waive immunity that was given to them on a promise to the public that discipline against prosecutors is available.  If discipline is unavailable, shouldn't prosecutors return the conditional gift of absolute immunity because the condition is not being satisfied?

Well.

All that said, let us see what will happen in scenarios that do not involve an acquittal, as it did in Morse v Fusto case where the prosecutor was not given any immunity and a multimillion dollar jury verdict against the prosecutor for preparing and presenting false evidence to the grand jury stood.

Those scenarios may include:

• a  wrongful conviction where a defendant was coerced into a plea by threats, 
• a wrongful conviction where a defendant took the plea for reasons unrelated to his or her guilt or innocence, but rather related to the existence of the death penalty in this country, which is an irreversible event if it happens, with the hope that at some point justice will be served, the conviction will be overturned and the convicted person will be still alive to enjoy it - and went to prison for life as a murderer and, possible, child molester and murderer for the crime the defendant did not commit, because the defendant knew that nature of the charge will incite the jury so much that a death penalty, if requested by prosecutors, is a given, and prosecutors do usually request death penalty if it is available because, see above, prosecutorial positions are a path to judgeships, and judges are elected on "being tough on crime" platform;  over 95% of convictions in this country occur through pleas, where issues were never tried and there is no assurance that those 94% of convictions that are bankrupting the country through the necessity to support the prison system and that already resulted in a human rights crisis of gigantic proportions, are not all wrongful convictions;
• a wrongful conviction because prosecution fabricated evidence at trial and/or presented perjured witnesses - that would be the Morse v Fusto situation, but in Morse v Fusto there was an acquittal, not a conviction.

An acquittal, as I mentioned before, is very difficult to obtain.

Most criminal trials, whether bench trials, or jury trials in the U.S., end in convictions, that's why plea bargaining is so popular.

Prosecutorial misconduct and presenting to the grand jury or to the trial jury of fabricated evidence, with complete immunity for prosecutors, is a factor in why criminal trials mostly end up in convictions, and why plea bargaining is so popular - defendants and their attorneys know about the problem and use plea bargaining as a hedging technique, picking the best of the two evils - to be convicted and sentence to  maximum, as charged, and prosecutors usually overcharge to induce plea bargaining, or to have a chance to escape incarceration through a plea.

It is practically impossible to overturn a conviction based on a plea bargain on appeal. 

Pleas are deemed by appellate courts as consensual, judges take precautions to advise criminal defendants of what rights they are waiving and obtain those waivers from criminal defendants in writing, with prior advice of counsel, any wrongful-conviction issues are thus deemed waived, and the conviction is iron-clad.

If under such circumstances the convicted person goes to federal court and tries to sue the prosecutor under the very same scenario as resulted in no immunity for prosecutor in Morse v Fusto, it results in a dismissal under the so-called Rooker-Feldman doctrine where the court does not even consider the merits of the case.

So, event though a wrongful conviction has a more lasting effect upon the criminal defendant, his family, the country, the taxpayers and the perception by the public of lack of integrity of the court system, these cases of wrongful convictions will not be covered by Morse v Fusto.

The remedy?

I see two remedies.

1) legislative abolishment of prosecutorial immunity, and if legislatures refuse to do so, then an amendment of state constitutions and, possibly, the federal constitution, canceling all immunities to public officials for malicious and corrupt acts in office and for violation of constitutional rights of citizens;

2) ratification by Congress of the International Covenant for Political and Civil Rights, so that Americans acquire rights that people from other nations already enjoyed for years and decades - the right to sue their country in the court of an international human rights court.  

Once prosecutors realize that they are not immune from lawsuits for money damages out of their own pockets for fabrication of evidence and wrongful convictions, such fabrication will drop immediately.  People tend to react to being hit in their own pockets.  

The Report of the NYS Statewide Commission on Attorney Discipline: No Luxury of Time, Round 2

I have posted here today an analysis of the claim of the Cozier Commission (for shortness' sake) that time was a luxury and it did not have time to implement recommendations that it was making.

Let's review whether that was true.

Here are some of the recommendations of the Commission, with comments:

Note that the Commission carefully avoids the sticky issue that what constitutes the PRACTICE OF LAW that is regulated by attorney licensing, IS NOT DEFINED BY NEW YORK LAW.  When the subject of regulation is not defined (and that continues to be the subject of Neroni v Zayas lawsuit, appeal pending in the 2nd Circuit), how can one define "professional misconduct" in practicing nobody-knows-what?

A noble task, but representatives of 4 departments were members of the Commission, what prevented them, over 6 months time, to come to a consensus on rules that they themselves can issue without asking permission of Chief Judge Lippman or anybody else and without public hearings or reports?

And, seems hypocritical to me to claim that there is no such system at this time, but to continue to enforce it and not stay it until such uniform rules are in place

There are already in place court procedures for conservatorships.  No additional proceedings are necessary, so here the Commission is using its "time which is luxury" on something that already exists.

Not to mention the awkward working/typo, this is a good point, because at this time the only way to accept resignation is through admission of wrongdoing, and many people would not like to do that, continuing litigation.  Yet, once again, representatives of 4 Appellate Divisions were already members of the Commission and could just DO that, pursuant to their rule-making power, at any time, without any reports and recommendations.

This is rich, coming from this particular Commission, with this particular membership.

There was testimony before the Commission that complaints of legal consumers are rejected without explanation and complainants are not given any explanation (Ms. Alves' testimony in the New York City hearing):

But, look at the testimony of Timothy O'Sullivan, the chief attorney of the Lawyers' Fund for Client Protection who was called as the very first witness at the very first hearing, and was, thus, considered by the Commission to be the most important witness at the hearings.

Timothy O'Sullivan admits that the fund's goal is to protect legal consumers specifically from DISHONEST behavior of attorneys.

That restricts Timothy O'Sullivan's authority to receiving sanctions specifically for DISHONEST behavior of attorneys.

Yet, in my practice, Timothy O'Sullivan runs disciplinary committee as a cheap collection agency for his trust fund to shake out civil rights attorneys of sanctions imposed for making motions to recuse judges raising constitutional issues of public concern.

Those retaliatory sanctions, imposed for motions to recuse that clients wanted, needed and asked for, have nothing to do with DISHONEST behavior of attorneys toward clients.

Yet, Timothy O'Sullivan continues to relentlessly work as a shakeout and continues to use the disciplinary committees as collection agencies, even though collection on judgments is NOT their function, and Timothy O'Sullivan acknowledges that he simultaneously refers unpaid sanctions to the disciplinary committee AND to the New York State Attorney General "for collection", but collection through harassment by the disciplinary committee is obviously faster and cheaper.

I already sued Timothy O'Sullivan and his fund for exactly that in Neroni v Peebles, but the lawsuit was dismissed because of various court-created restrictions to jurisdiction, without reaching the merits of the case.

Look how Timothy O'Sullivan proudly admits to using disciplinary committees as cheap collection agencies:

Wait, didn't Ms. Alves testify that 98% of complaints get dismissed without an explanation to the complainants?

So, there are complainants and complainants?

Some whose complaints are dismissed without an explanation, and some, like Timothy O'Sullivan, whose shakeout efforts receive "invaluable assistance and unfailing support" that they "receive daily from HIS COLLEAGUES in the attorney disciplinary system".

Wait, wait, wait.

So, Timothy O'Sullivan, unbeknownst to legal consumers or attorneys, is now deems himself a COLLEAGUE of the disciplinary committee, a PART of it?

And, as PART of it, has access to information that is not shown to other complainants?

Interesting!

Timothy O'Sullivan kept going on.  He states, with iron fervor, that those attorneys who steal must be disbarred.

Who would argue?

Yet, Cornelia Cahill, wife of Chief Judge of New York State Court of Claim Richard Sise, was not disbarred by Timothy O'Sullivan's colleagues, when she, and 100 more attorneys, were caught stealing from state benefits and pension system, pretending they are employees of the school system when they were not, doing it for YEARS AND DECADES, and Timothy O'Sullivan does not seem to raise any riots.

Cornelia Cahill, instead of being disbarred, was accepted AS A LAW PARTNER in the law firm of one of members of the disciplinary committees who was charged with a duty to investigate and prosecute her!  That's one way to give a judge a favor and promote one's business, isn't it - to save his wife from disbarment?

Steven Baum whose law firm was behind the "robosigning" scandal in judicial foreclosures, against whom the feds were making probes as to his "faulty filings" in foreclosure cases, who, thus, was responsible for helping steal thousands of homes from New Yorkers, was not disbarred or publicly disciplined, and I did not see any statements by Timothy O'Sullivan concerned about that state of events, of Steven Baum's dishonesty as an attorney.

The list goes on and on.

Timothy O'Sullivan doesn't stir.

Timothy O'Sullivan boldly claims that attorneys who steal must be referred for prosecution to criminal prosecutors, as part of a uniform policy.  

Great!  Cornelia Cahill and Steven Baum, too?  Or just solo and small firm independent criminal defense and civil rights attorneys?

One of the witnesses who testified before the Commission in New York City, was not at all confident that any new rules or policies will be followed though:

No mentioning of this "elephant in the room" in Timothy O'Sullivan's speech and none in the Commission's report.

You know what Timothy O'Sullivan REALLY concerned about? 

To make "dispositions" in attorney disciplinary proceedings FASTER.  That means, to afford an attorney even less time than he/she currently has to answer the complaint - now it is even less than allowed for a civil lawsuit, which is already an equal protection problem.

And what speedy dispositions Timothy O'Sullivan may be seeking from courts and attorney disciplinary committees?  Of course, the GUILTY dispositions, because he will not get any money out of not guilty dispositions.

So, Timothy O'Sullivan is one complainant who attempts to influence speed - and fairness - of attorney disciplinary proceedings to do his shakeout job faster.  Great for uniformity, great for efficiency, not great for fairness.

So, to sum up on the issue of dismissing complaints, the following rule emerges:

• when a lay consumer files a complaint, it is usually dismissed without an explanation;
• if a judge imposes a sanction, often arbitrary, and often because the judge is pissed off because the judge's own misconduct is challenged on a motion to recuse, that complaint, made by Timothy O'Sullivan, is given a priority and is ALWAYS investigated and prosecuted - even when sanctions are imposed NOT for dishonest behavior of an attorney, which is the ONLY basis of sanctions for which Timothy O'Sullivan can collect, because the goals for which his Fund was created was to protect legal consumes from DISHONEST behavior of attorneys

Maintaining any kind of appearances of any kind of governmental agency in public eye ("public confidence in the integrity of the system"), or PR, cannot be enforced through sanctions on attorneys, and is NOT a legitimate governmental interest.

Nor can it be maintained by the system where Cornelia Cahill, Steven Baum and similarly influential attorneys who were involved in egregious misconduct continue to practice while civil rights attorneys get disbarred for raising constitutional issues in court on behalf of clients addressing judicial misconduct.

But, let's go further as to the Commission's Report.

Here are further recommendations by the Commission.

Once again the Commission delves where laws are already established.

Same as the committees have discretion to prosecute or not prosecute, district attorneys have discretion to prosecute or not prosecute crimes, and may not be influenced by disciplinary committees.  And, the Committee does not have a "role" at the beginning stages of criminal adjudication.  Moreover, what happened with presumption of innocence?  

Such an accusatory tone of the Commission and the committees where a person is only ACCUSED of committing a crime, which in any court may not be considered as any kind of EVIDENCE against that person, already says volumes about "fairness" afforded to attorneys by such "knowledgeable" and "unbiased" committees.

This rule is already part of Judiciary Law 90, and the only collateral estoppel that the statute permits (not that courts or committees are following the statutory restrictions) are on two occasions:

• conviction for a felony;
• contempt of court order of child support

So, disciplinary committees are not really concerned about fairness, they are concerned about prosecuting attorneys faster, so that Timothy O'Sullivan can do his shakeout job faster, and so that committee members can get rid of competition faster, in violation of federal antitrust laws.  But, that has nothing to do with fairness.

The Commission does not mention that the Committees should be prohibited to bring up civil rights litigation AGAINST THEMSELVES for violating attorneys' constitutional rights during disbarment proceedings, as a preclusion for reinstatement, even though they regularly claim that trying to get a remedy from federal court because of their own misconduct or, God forbid, testifying before a public agency about corruption in the government, characterizes an attorney as unfit for reinstatement.

Yes, yes, yes!  That's exactly what I said in Neroni v Zayas lawsuit, Ms. Duffy, Ms. Peters, the Third Department Court! Are you withdrawing your opposition in that lawsuit on those same issues?  I guess, not.  So, how come you maintain those diametrically opposite positions?  Isn't that frivolous?

And - can't you, members of Commission who are also members of the 4 Appellate Division just DO it without "reports or recommendations", through promulgating rules that you otherwise promulgate without asking anyone?

Yes, yes, yes!  That's what I said in Neroni v Zayas, but didn't you ask the court to dismiss that lawsuit because the complainant does not have a "justiciable interest" in the complaint?  And obtained a dismissal? And are opposing NOW appeal of that dismissal?  How come, once again, such irreconcilable and frivolous positions in the Commission and in court?

And - can't you, members of Commission who are also members of the 4 Appellate Division just DO it without "reports or recommendations", through promulgating rules that you otherwise promulgate without asking anyone?

Yes, yes, yes!  It is the same argument you rejected and continue to reject in Neroni v Zayas! and that you can correct yourself, without reports or recommendations, and without wasting public time or money.

Yes, yes, yes!  How about withdrawing that "no justiciable interest" defense in Neroni v Zayas?  And how about just MAKING such a rule without reports or recommendations?

Now, this one is extremely interesting.  While the U.S. Supreme Court encouraged, by its decision in North Carolina Board of Dental Examiners v. FTC, decided in February 25, 2015, to CREATE panels without super-majorities of attorneys, and instead with supermajorities of legal consumers, our brave Commission wants to do the opposite - to extinguish the only sparkle of radical thought in the First Department that actually allows hearing panels, and not decisions over attorneys by attorneys.

Yes, yes, yes!  Now, will you guys withdraw your opposition to the Mr. Neroni's attempts to get access to his own disciplinary file, to the records showing voting for investigation and prosecution in his case?  Because you think such decisions should not be made unilaterally?

This is a further assault on the revolutionary First Department, instigator of ABA reports, holder of hearing panels in disciplinary proceedings. 

What about out-of-state attorneys?  Who do not have a registered office address and who reside outside of the State?  Recently, a federal court ruled that requiring a physical office from an out-of-state attorney is unconstitutional.  The Commission does not care what federal courts say about unconstitutionality of their proceedings?

This one contradicts the previous one, but oh well.

Mamma mia, this one is EXACTLY to answer the challenge in Neroni v Zayas and directly contrary to testimony and requests of lay witnesses at public hearings.  

While we were arguing in Neroni v Zayas that disciplinary committees MUST keep records of discipline for ALL attorneys, with proper indexing and archiving, for further review as to selective enforcement issues and verification of whether certain discipline was, in fact, imposed, committees are lobbying elimination of ANY records for their private discipline.

This rule was adopted, very likely, because of public pressure to disclose dismissals of complaints and analyze possible selective enforcement.

You cannot analyze oral discipline, or lack thereof, can you.

On the other hand, committees can always argue against attorneys they want to disbar, as a point of "aggravating circumstance" that these attorneys were previously disciplined through an "oral admonishment".  How can you prove or disprove that there was an oral admonishment?  If it will be proven on affidavits by members or attorneys of the committees prepared for litigation, those affidavits will be freely given, perjured and all.  No problem.  I am seeing it all the time.

So, will we next have oral money judgments?

Oral criminal convictions?

And all of those oral things made upon oral submissions by attorneys and oral acceptance by courts and agencies?

Will eliminate the necessity to create any records completely.

A lovely idea, I wonder who was the author.

When these guys are engaged in a lobbying frenzy, they seem to switch off their brains and do not even think how they actually look.

So, the Commission, claiming that "time is a luxury", 

• proposed to invent laws that already exist:
• for incompetents and
• for criminal prosecutions of theft;
• proposed rules that did not have to be proposed because
• courts already have authority of rule-making and can do it without reports or recommendations, and because
• the same courts and committees are opposing the same issues at the very same time in multiple lawsuits in federal court - appears frivolous to me
• engaged in relentless efforts to further defy antitrust law and to allow further selective enforcement of attorney discipline:
• by trying to quash the "revolutionary" undertakings in the First Department, and
• by trying to introduce "oral" discipline against attorneys, thus avoiding public scrutiny of selective enforcement and further selective enforcement by being able to claim aggravating circumstances against targeted attorneys backed up by perjured affidavits only, no records of admonishment proceedings

In other words, they WASTED OUR TIME AND MONEY.

What can you expect from crooks who are responsible for the current mess to begin with?  That they will suddenly get honest and correct it?

On this harmonious note let me finish today's analysis of the Report.  I will continue, there are other outstanding issues remaining.

Stay tuned.