The U.S. District Court for the Northern District of New York, Judge David Peebles, pretends I did not make a motion to vacate, recuse and disqualify in the Argro v Osborne case where I was secretly suspended from the practice of law on the verge of trial and then stripped of 3.5 years worth of legal fees because I dared to sue social services

On Friday the 13th, May 13, 2016, the U.S. District of New York received, by mail, my motion to vacate its earlier decision to rob me of the fruits of my labor, attorney fees for 3.5 years of litigation in a civil rights case that I brought to trial, where the court decided that it is time to change counsel - so, I was suspended in state court, suspended secretly in federal court (you will not see my order of suspension on Pacer) and stripped of the entire legal fees claiming that I wanted it this way.

Of course, I never wanted to forgo 3.5 years worth of attorney fees, especially when I, a mother of a minor child, was stripped of my livelihood by the corrupt state and federal court systems, acting in collusion and, possibly, through the secret organization State-Federal Judicial Council, where both court systems stall me for the list of members of that organization - which may result in a federal lawsuit.

A lawsuit like the one recently brought against the CIA by famous and effective former civil rights attorney Stephen Yagman (the one who turned in Judge Manuel T. Real and triggered impeachment proceedings against him in 2006, and was criminally prosecuted, convicted and disbarred for his effort while Judge Real remains on the bench, with every 3rd of his cases reversed and his misconduct and possibly senility continuing to be legendary).

I will blog about Stephen Yagman's stance against Judge Real, persecution of Stephen Yagman by the government and the case filed by Stephen Yagman against the CIA to verify who were the "we" in the memo of President Obama acknowledging that "we" participated in torture of people - Stephen Yagman struck a nerve with his lawsuit since, while his case is on appeal, the allegedly only existing record of the "torture report" was "inadvertently", "accidentally" destroyed by the CIA.

As to the pirouette by the court system to first suspend me on the day the civil rights lawsuit I brought against the Chenango County Department of Social Services was ordered to proceed to trial (which boasted that "they are the law" and that nobody will ever sue them), and then strip me of my legal fees for suing Chenango County DSS and bringing the case to trial, I wrote about the whole mess here and here.

I also wrote a lot on this blog about misconduct and apparent corruption of Judge David E. Peebles, you can find those blogs by putting the search word "Peebles" in the search window on the right of the blog article.

So, I filed a motion to vacate the decision, and with that motion, I filed a motion to recuse the court that had a raging bias against me from reviewing that motion, as well as to disqualify the new counsel for my former clients and for the Defendants Chenango County Department of Social Services and individual social workers, for misconduct.

Misconduct alleged against the Plaintiffs' new counsel attorney Woodruff Carroll was that attorney Carroll, according to one of the Plaintiffs' statement to me, first asked the Plaintiffs for the original of the retainer agreement to be sent to him by my former clients, they did, and then attorney Woodruff Carroll, having that retainer agreement on file - unless he destroyed it - turned around and claimed to the court, under oath, that there is no evidence of any such retainer agreement.

That is fraud upon the court.

I also notified the court of the Plaintiffs' statement to me that they do not want to settle, that they want to proceed to trial (which I would have done for them), but that Woodruff Carroll practically holds them hostage, uses the fact that other attorneys are afraid to sue social services even at the stage when the case is successfully brought to trial, and thus Carroll was able to sell his clients out to the defendants and accept a $30,000 settlement in a multi-million dollar lawsuit.

Misconduct of the Defendants' counsel attorney Erin Donnelly (Levine, Gouldin, Thomspon, LLC of Binghamton, NY) that I alleged was that attorney Donnelly repeatedly deceived the court and the parties by claiming that she was restricted by insurance policy to the $30,000 or around that sum in award of damages.

While I am currently waiting for response of Chenango County to my FOIL request for the County's insurance policy, a similar insurance policy from Delaware County that I recently received on a FOIL request (and provided to the court as part of my motion), as well as applicable precedent in New York, shows that intentional acts in violation of civil rights, and especially punitive damages that I asked for, are not recoverable in New York from insurance.

In other words, insurance could not control one penny of the settlement payout, and Ms. Donnelly likely lied to the court, too.

Moreover, since I was stripped of 3.5 years worth of my legal fees because of my alleged suspension in that particular federal court (Northern District of New York), and Judge Norman Mordue referred to my suspension without a citation to a court order, and while the order of suspension, as well as the disciplinary proceedings that produced that alleged suspension were secret and "sealed" - and thus non-existent, because there cannot be public discipline without a public order of discipline - I asked the court to show me my order of suspension or change their decision relying on a "little bird's whisper" that I was suspended.

Once again - if there is no public order of revocation of an attorney's license, there is no such revocation.

I attached to my motion, as an illustration that disciplinary proceedings against attorneys are public, a recent order of disbarment and a docket report of disciplinary proceedings from another federal court.

I also raised a question in the motion that the mode of service upon me of various pleadings used in the "motion" to strip me of my legal fee was inapplicable to me after I was "suspended", so the court could not have it both ways - either I am suspended, and then I cannot either file or be served electronically through the court's ECF system, or I am not suspended, and I could not be removed from the case or stripped of my legal fee.

As part of my request to recuse the court I also pointed out that the court's judge Mae D'Agostino (who ruled against me in one of the civil rights lawsuits I filed in 2011, against now-former Delaware County Judge Carl Becker), is heading a secret state-federal organization of judges, and is stalling my Freedom of Information Act requests to see who is part of that secret organization.

I stated that I have a right to know whether other attorneys in the Argro v Osborne case, and in other cases that I litigated in that court, were part of that organization, especially that I sued several judges - and apparently state judges, potential defendants in civil rights cases, are participants in the State-Federal Judicial Council, a secret organization that the NYS Office of Court Administration did not give me any documents about other than a single order of appointment of a judge by former NYS Chief Judge Lippman made on Lippman's last day in office on December 31, 2015 and listing Mae D'Agostino as a Chairperson of the organization.

As you understand, the motion had explosive contents for the court.

And usually, in my experience, that particular court, the U.S. District Court for the Northern District of New York, bends over backwards to control the damage to its reputation and to reputation of well-connected attorneys with whom the court is joined at the hip, if any sensitive information about that court's misconduct is alleged - whether the way they control the damage is lawful or not.

The motion was sent by express mail:

 and arrived to the court on May 13, 2016 at 10:36 am, a "J Bleskoski" signed for it.

The motion was served upon parties with tracking, and was also received by them in the morning of May 13, 2016.

Yet, upon my review of the docket yesterday, on May 16, 2016, the court did not file it, as of the night of May 16, 2016, into Pacer, as required by law (2 days was not enough to scan and file it), and on May 16, 2016, magistrate David Peebles held a telephone conference and claimed in the minutes of the conference that "counsel" tells him of my intention to apply for attorney fees against Defendants under 42 U.S.C. 1988(b) (as civil rights counsel of prevailing defendant is allowed by law) after the case closes, which is also what the timing the procedure requires.

Here is the docket entries from May 6, 2016 to May 16, 2016 - there is no mentioning of the motion received by the court on May 13, 2016 and the motion is not filed by the clerk into Pacer, as the clerk is required to do.

There is no mentioning whatsoever of my currently pending motion to vacate the decision stripping me of fees, to recuse the court and disqualify counsel for parties for misconduct as to opposition to that motion, and therefore I decided to publish it and to publish the mailing receipts for it, and the USPS indication that the motion was, in fact, received by all parties on May 13, 2016.

It actually took me the whole of 2 minutes to scan it.  The court did not find 2 minutes on May 13, 2016 or on May 16, 2016 to scan and file my motion, as the court is required to do.

Here is the motion, in its entirety.

I wonder what the court is planning to do with this obvious hot potato of a motion.

As of yesterday, the court denied ever receiving it.

I wonder if the court will engage in some trick and seal it or reject it without reaching the merits, or pretend it never received it.

In view of my past (vast) experience with this court, I can expect any misconduct from the Northern District of New York.

After all, in view of Judicial Disability Act and judicial immunity, as well as reluctance of U.S. Congress to hold judges accountable even for the most egregious misconduct - like it was in the case of Judge Manuel T. Real, there is no way of holding federal judges accountable in this country.

Well, the Judicial Disability Act may be amended.  

I, as a taxpayer and citizen, am going to ask the U.S. Congress to do just that.

And, I am going to start a Change.org petition about that - and will notify my readers on this blog as soon as it is started.

I will also report as to how the court will decide my motion.

I believe, the motion is of great importance both to civil rights attorneys who walk the tight-rope every day and risk being suspended and stripped of their legal fees the same day I was - simply because courts that are supposed to help civil rights plaintiffs and their attorneys, usually are bent on hurting them for suing the government federal judges are joined at the hip with.

The motion is also of great importance to civil rights plaintiffs, as it shows how civil rights plaintiffs are cheated out of their effective civil rights counsel and are forced to accept miniscule settlements in multi-million dollar lawsuits against the powerful social services who attorneys are afraid to sue.

Stay tuned.

An interesting child neglect case won by law students in New York - with strings attached

I've just posted in my "Protection of Parents from Child Protectors" blog about an interesting case where a child neglect petition was dismissed before trial in  Kings County Family Court.

The article can be read here.

Barbara O'Sullian's house fire: some investigation is under way, possibly by the feds, but it appears to be fixed already

Based on tips from readers, the house fire of Barbara O'Sullivan I've been covering since the day it happened, on the night of April 22/23, 2016, is being investigated - in a weird way.

First, Barbara's family member, an estranged brother Peter who Barbara sued, the one who worked as a Social Services Supervisor in Delaware County NY for years and to whom the former Commissioner Bill Moon owes approvals of multi-million dollar budgets (and jobs for friends and relatives), without talking to Barbara, without seeking permission, visited the site of the fire, apparently with a fire investigator.

A lot of good things can a disgruntled brother whom Barbara sued for fraud involved with the estate of their father, and for condoning the poor care of their father, can tell the fire investigator.

After Peter's visit to the site, the fire investigator started asking Barbara questions about certain cans that allegedly were in her garage.

And, upon Barbara's review of contents of her burnt house and the basement, everything that did not burn, somebody smashed.

The site of the fire has been wide open for anybody to come tamper with the evidence and to plant evidence.

The site was not covered with tarp to protect it from the elements, was not secured from access by people and animals for investigation by local authorities, and was obviously not reported to the state for investigation.

Barbara tried to report it to the FBI, and the FBI laughed her off, but 3 weeks later, a truck with equipment listing "FBI" on it, was spotted by a witness on the site of the fire.

It appears that somebody is trying hard to (1) stall the investigation into the real reasons, and real culprits as to the house fire, and to (2) frame Barbara for it.

It also seems that the feds are at work on the site, and in Delaware County, New York.

I will continue to cover the story.

Stay tuned.

American courts rule that protection through attorney regulation is not needed for the illiterate, unemployed and criminal defendants, even in death penalty cases - then, who does attorney regulation protect?

In 1969, the U.S. Supreme Court has ruled in Johnson v Avery, that even a lay individual, never licensed as an attorney, may provide legal services to the "illiterate or poorly educated inmates" (indigence was not even mentioned in the holding, only lack of literacy), if the State does not provide "a reasonable alternative" to assist such "illiterate and poorly educated" consumers of legal services in protection of their constitutional right to liberty:

 "In the absence of some provision by the State of Tennessee for a reasonable alternative to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners."

This is a precedent of the top court of the United States, existing in this country since 1969, for 47 years, which already undermined lawyer monopoly and criminal unauthorized practice of law statutes, making attorney licensing, attorney disciplinary proceedings and UPL laws constitutionally invalid.

Yet, as a side note, the same U.S. Supreme Court stubbornly refuses to review disciplinary cases of attorneys, even when they are punished for criticism of judiciary.

Adding to the conceptual mess regarding validity of attorney regulation are the recent cases covering the states of:

1. California;
2. Connecticut;
3. Minnesota;
4. Michigan;
5. Nevada;
6. New York;
7. Pennsylvania;
8. Texas, and
9. Vermont - (and that is in addition to the mess created by Johnson v Avery that covers all states in regards to unauthorized practice of law and exemption of jailhouse attorneys from the reach of UPL on constitutional grounds where serving under-served populations)

The top courts of three states, Texas, California and Michigan, have contrary precedents on file, on the same issue of the 6th Amendment - that even a representation by an attorney SUSPENDED from the practice of law does not deprive a criminal defendant from effective representation of counsel.

The State of Pennsylvania, while using attorney discipline to remove an elected public official, the State Attorney General, who is also the official attorney for the disciplinary board and for the courts, undermined validity of attorney regulation and further contributed to the conceptual mess in justifying validity of attorney regulation by recently ruling that in a quasi-judicial administrative proceeding, representation by a suspended attorney was 

1) not a practice of law under the Pennsylvania State law, and 
2) the consumer of services of such an attorney was entitled to such a representation, but
3) the suspended attorney in question could still be disciplined for violation of his order of suspension - which makes no sense, because, if the attorney was suspended from the practice of law, and if what he was doing was not the practice of law, what did he violate then?

In three very recent decisions of several federal courts covering the states of Nevada, Minnesota, Connecticut, New York and Vermont,  courts disqualified and blocked licensed criminal defense attorneys from representing clients in criminal cases, including, in Nevada and Minnesota, clients chosen by their clients for representation in a criminal defense case, on the basis of some discipline against those attorneys that did not lead to suspension or disbarment: 

1.  United States v Ahmed, Crim. Case No. 15-49 decided by the U.S. District Court for the District ofMinnesota (within the 8th Circuit) on March 21, 2016;
2.  United States v Bundy, Criminal Case No. 2:16-cr-046-GMN-PAL decidedby the U.S. District Court for the District of Nevada (within the 9th Circuit) on March 31, 2016;
3. In Re Castillo, Case No. 14-90008-am decided by the U.S. Court of Appeals for the 2nd Circuit (covering the states of Connecticut, New York and Vermont) on April 4, 2016.

Once again, three federal courts, in three different federal Circuits, in the 8th Circuit, the 9th Circuit and the 2nd Circuit, within a 2 week's period of time, this year, from March 21, 2016 to April 4, 2016, ruled that alleged misconduct of an attorney that did not lead to suspension or revocation of the attorney's law license, may nevertheless allow the court, on its own motion, to block a criminal defendant from choosing that attorney despite the requirement of the 6th Amendment right to counsel.

In both sets of cases - 3 cases in federal courts vs 3 cases in state courts - decisions were made in favor of prosecution, against criminal defendants, against consumers of legal services of attorneys and in violation of criminal defendants 6th Amendment right to counsel.

So, as of now, in Minnesota, Nevada, Connecticut, New York and Vermont, an attorney's license does not guarantee that an attorney will be allowed to appear in court in a criminal case, even if chosen by a criminal defendant as part of the defendant's fundamental constitutional right to counsel under the 6th Amendment - if a court finds in the defense counsel's past something the court does not like.

On the other hand, in California, Texas and Michigan, representation of a criminal defendant by a suspended attorney, whether through "administrative" or a "disciplinary" suspension, will not be contrary to the criminal defendant's 6th Amendment right to counsel.

It is apparent that the declaration that attorney licensing somehow serves to protect consumers of legal services is a sham used by courts as they please - to remove from cases criminal defense attorneys who are "too feisty", and disregarded by the courts when a criminal conviction is at stake.

Not only this is a significant split on the issue of a fundamental constitutional right to counsel, but such a split, by courts which are at the same time regulating agencies of the legal profession, confirms that attorney regulation and licensing declared to be for the benefit and protection of the consumers is nothing more than a sham in order to suit the government, which can be disregarded if it interferes with the governmental purpose to: 

1. prevent appearance of certain attorneys as criminal defense attorneys, or, 
2. even when the government suspends such criminal defense attorneys and removes them from professional activities,
3. make convictions obtained during representation by suspended attorneys stick.

I put the rulings of these various courts into a table to verify the logic as to correlation of attorney discipline, competency and moral fitness of court representative to ability to provide legal services.

Here is what I got:

Issue	U.S. Supreme Court	What constitutes the practice of law	State criminal law on unauthorized practice of law (UPL)	Correlation between attorney license, discipline and attorney competence and effective assistance of counsel	Requirement for competence and/or moral fitness of provider of legal services Yes/No
Preparation of petitions by lay individuals	Allowed, lay "jailhouse lawyer" not subject to prison discipline	Not clearly defined in statute	It is a criminal offense to practice law without  a license, whether the individual never had a license or whether the license was suspended or revoked. Actions of the "jaihouse lawyer" constitute the state crime of UPL in Tennessee	No correlation, unlicensed individual is allowed to provide legal services	No
Representation before administrative board by a suspended attorney	Allowed for the consumer to use a suspended attorney, but is a disciplinary violation for a suspended attorney to provide such representation, exposing the suspended attorney to contempt of court charges and further disciplinary proceedings for violation of prohibition on practice of law	Not clearly defined in statute, But in Pennsylvania, it is clearly defined by statute what DOES NOT constitute the practice of law, and that is  representation before a quasi-judicial administrative board where decisions have the power of collateral estoppel as if they were made in a court proceeding	Not the practice of law, Actions of suspended attorney do not constitute unauthorized practice of law, but do constitute a violation of a court order of suspension prohibiting the practice of law	No correlation, an unlicensed individual is allowed to represent clients before a quasi-judicial board, and that is not even deemed "practice of law" under the state law, even though it is essentially the same process as in court proceedings	No
Validity of criminal convictions involving representation in criminal court by a suspended attorney	Court representation by suspended attorney does not invalidate a criminal conviction in Texas, Michigan and California	Not clearly defined	Court representation by a suspended attorney constitutes UPL in Texas, Michigan and California, as well as contempt of the court order of suspension	No correlation, the courts claimed that attorney discipline to the point of suspension does not necessarily mean that a suspended attorney will provide ineffective assistance of counsel	Formally – yes, but, since the validity of criminal convictions is upheld, even for death penalty cases in Texas – de facto, No
Injunctions/disqualifications on representation in criminal court by a licensed attorney	Nevada, Minnesota and 2nd Circuit federal courts find that court representation by a fully licensed attorney of a criminal defendant's choice may be denied sua sponte by the court if the court finds misconduct or discipline not leading to suspension in criminal defense attorney's history	Not clearly defined	No UPL issues are involved in representation by a licensed attorney	Correlation found between prior attorney discipline not leading to suspension and forced disqualification of a licensed attorney from a criminal case despite being chosen by the client as a matter of 6th Amendment right to counsel	Formally – yes, De facto – a license is a presumption of fitness, Licensed attorneys were still disqualified, so the courts required fitness of criminal defense attorneys, but not of prosecutors, above and beyond licensing requirements, including in cases where alleged misconduct was committed by both the defense attorney and the prosecutor, but only the defense attorney was disqualified

The table shows that, first of all, what constitutes the practice of law in all states, is not clearly defined, so all state unauthorized practice of law statutes do not give prior notice of prohibited conduct, and are unconstitutional as such, under the U.S. Supreme Court precedent Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972) ("because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.")

If what constitutes the practice of law, is not clearly defined by statute, so that people can regulate their conduct accordingly, the state may not prohibit "unauthorized practice of law" which is not clearly defined.

The next thing is - there is no correlation between UPL and court decisions allowing provision of legal services in violation of UPL statutes (which presumably were created to protect the public from exactly the conduct that courts either directly allow or validate the results of):

In Johnson v Avery in 1969, the U.S. Supreme Court validated what constituted a crime under the state law.

In California, Michigan and Texas in 1996, the top courts validated the result of what constituted a crime under the state law.

There is also no correlation between education, competence and moral character and ability to provide legal services.

In the same Johnson v Avery, the U.S. Supreme Court allowed provision of legal services to illiterate individuals by a lay individual without regard whether the lay individual was educated, competent or of good moral character.

In Powell v Unemployment Compensation Board of Review, an unemployed individual was allowed representation by a suspended attorney, where no discussion was held whatsoever whether representatives in front of such Board should have any minimum levels of competences, education or moral fitness.

In criminal proceedings in California, Michigan and Texas, including in death penalty cases in Texas, suspension of attorneys who represent criminal defendants did not invalidate criminal convictions, and the Michigan court (cited by the California court) specifically claimed that there is no correlation between even a disciplinary suspension and competency and moral character and fitness.

Reading these decisions is like reading "Alice in Wonderland" - it is a "beyond the mirror" logic.

Those people who are the least capable of protecting themselves, by being illiterate, those people who are the least capable of obtaining a quality court representation through inability to pay - the unemployed, the indigent criminal defendants - are, on the one hand, those who are claimed to be protected by the U.S. Constitution (the 6th Amendment right to counsel), by attorney regulation (consumer protection), but in fact are not protected by the ad hoc court decisions, and that includes:

1) The U.S. Supreme Court in Johnson v Avery, regulator of the legal profession in its own court and across the country through appeals, did not seek to protect illiterate clients (following attorney regulation logic) where it allowed representation of such illiterate individuals by jailhouse lawyers are not checked out and vetted by the government as to their education, competence and moral character;

2) Pennsylvania courts, regulators of the legal profession, do not protect consumers of legal services by:

• suspending civil rights attorneys and making their services unavailable to public at large;
• suspending an elected public official, Attorney General Kathleen Kane, because she was protecting the public from corruption among regulators of the legal profession, the state judiciary, and among state prosecutors, the breeding pool for the judiciary;
• nevertheless, allowing the allegedly unfit individuals (suspended attorneys) and never-checked individuals (lay individuals) to represent the unemployed in the quasi-judicial proceedings having collateral estoppel effect in court;

3) California, Michigan and Texas courts, regulators of the legal profession, do not protect the public from unfit attorneys by:

• suspending criminal defense attorneys from the practice of law, then
• being negligent in allowing such suspended attorney to continue to practice in criminal cases, including death penalty cases, and then
• validating the results of their work by claiming that there is no correlation between effective assistance of COUNSEL and status of a suspended attorney, even if suspension was disciplinary

and

4) federal courts in Nevada, Minnesota and the 2nd Circuit covering Connecticut, New York and Vermont do not protect the public by 

• disqualifying good and well known, licensed criminal defense attorneys, and by 
• not only acknowledging correlation between attorney discipline and predictions of effective representation of counsel for the future (without any evidentiary basis for such predictions), but 
• requiring a higher degree of competence and moral fitness than what licensing requires from renowned criminal defense attorneys (without imposing the same requirements upon prosecutors who those same courts never discipline no matter what they do), and by
• blocking renowned criminal defense attorneys from representing criminal defendants, even if they are attorneys of choice for such clients, thus undermining the adversary nature of criminal proceedings and working as advocates for the prosecution.

The rule that can be discerned from this whole conceptual mess is that there are no rules.

The rules of attorney licensing, attorney discipline, the criminal statutes for unauthorized practice of law, cannot withstand even minimal conceptual scrutiny and exist for decades exclusively because of lobbying efforts of the legal elite that permeated all three branches of local, state and federal governments.

The illiterate can be represented by whoever.

The unemployed can be represented by whoever.

Criminal defendants can be represented by whoever - yeah, yeah, we heard about the U.S. Constitution and the 6th Amendment, we even swore to uphold it to get our permanent paycheck - but, there is a point where those pesky libertines with their constitutional arguments should just shut up and let us rule.

Because we said so.

Of course, the raw exercise of judicial power without solid conceptual basis is judicial misconduct.

That's not me saying it, that's what Alex Kozinski said in his famous dissent opposing dismissal of disciplinary proceedings against Judge Manuel Real, in reliance on legal authorities and opinions of scholars.

Yet, UPL prosecutions and lawyer monopoly in court representation continue, even though it is not supported by any evidence.

Education of lawyers is not superior to self-read knowledge, knowledge of all laws in one state is not taught or checked when a statewide license is given, and especially if it is given through "reciprocity", "comity" agreements with other states.

Legal education is not superior, because 

(1) law school accreditation for purposes of state licensing is handled by a non-profit corporation American Bar Association that has foreign membership and financing and which is, in essence, a labor organization;  such an organization has its own, and not consumer's interests in mind;  

(2) law school professors are bought up by monopolists in bar-prep courses to actually bar superior legal instruction materials.

Attorney discipline is conducted not as a tool of protection for consumers of legal services, but as a tool of vengeance against good attorneys for critics of what is wrong in the judiciary and the legal profession.

Attorney discipline and regulation is also conducted in violation of federal antitrust laws and federal labor-regulation laws.

And, while 80% of the public cannot afford an attorney, the U.S. Supreme Court already ruled in Johnson v Avery - where the individual is illiterate, anybody can represent him (and dupe him, accordingly).

So, where there is no logic and no protection in attorney regulation and discipline (and no consumers are allowed to participate in such regulation and discipline for their own protection), it is not the rule of law.

It is the rule of whim, for self-serving interests of the ruling elite.

Attorney regulation is a formal framework created so that the legal elite can pretend, by having formal disciplinary proceedings pretending at "self-regulation" (which in itself is an antitrust violation, as the U.S. Supreme Court ruled in 2015 in North Carolina Board of Dental Examiners v FTC), that protection of consumers' interest exists, without allowing consumers to make decisions regarding that regulation.

So that those pesky consumers would not interfere with the legal elite's making laws for themselves and enforcing the laws in their own favor.

Because they said so.

When a criminal conviction is at stake in California, Texas and Michigan, representation by a suspended attorney satisfies the 6th Amendment right to counsel requirement

Lawyers have to pay hundreds of dollars in bar dues in states where "organized bars" are mandatory and directly to the state where organized bars are not mandatory, where a portion of that money is used on attorney discipline.

Attorney rules required - and attorney discipline is imposed - if attorneys do not comply with Continued Legal Education (CLE) requirements.

I wrote on this blog about corruption in certification of CLE programs in New York.

I also wrote on this blog about CLEs where attorneys, in exchange for a $359 fee, learn how to brown-nose judges better, by learning about particular whims of particular judges.

Recently, a fellow legal blogger unearthed and commented on a 1996 case from California where an attorney suspended from practice in the State of California in the middle of representation in a criminal case for failure to comply with minimum CLE requirements, continued to represent the defendant, and represented the defendant at the sentencing.

And, while reviewing that case, I found two more cases, in Texas and Michigan, cases which, surprisingly, are not cited much (or, in fact, at all), in legal treatises about attorney regulation - while they clearly should be, because they undermined and destroyed the validity of the entire claim of consumer protection as a justification of attorney licensing and attorney monopoly in court representation.

The intermediate appellate court in California reversed the conviction as a denial of constitutional right to counsel (a new counsel had to be appointed at the time the defense counsel was suspended).

The Supreme Court of the State of California reversed, saying, among other things:

"We have noted that "admission of an attorney to the bar establishes that the State deems him competent to undertake the practice of law before all our courts, in all types of actions." (Smith v. Superior Court (1968) 68 Cal.2d 547, 559 [68 Cal.Rptr. 1, 440 P.2d 65].) The reasoning of the Court of Appeal in this case, however, would compel the opposite conclusion if, hypothetically, the bar, following provision of notice of noncompliance and [14 Cal.4th 37] after lapse of the 60-day grace period, were to enroll an attorney on inactive status for failure to submit the required proof of compliance. We think it illogical to conclude that a California attorney, presumptively competent on day one, becomes incompetent on day sixty-one merely by virtue of MCLE noncompliance."

The court proceeded discussing that the presumption of competence of an attorney should not be based on such a flimsy premise as providing or not providing records of attendance of CLE courses.

"Moreover, if an attorney's involuntary enrollment on inactive status for noncompliance with MCLE requirements were indeed deemed the equivalent of a finding of incompetence, as the Court of Appeal apparently reasoned, it would be anomalous to permit the attorney's administrative reinstatement simply on submission of proof of compliance consisting of little more than a collection of attendance records. Yet the regulations evidently contemplate such a procedure. (See MCLE Rules, rules 12.2 [member's recordkeeping requirement], 15.1, 15.2.)"

The Supreme Court of the State of California also noted the exemption of attorneys working for the government from CLE requirements:

"In addition, various classes of attorneys, notably employees of the state, are statutorily exempt from compliance with MCLE requirements."

So, attorneys for the government in the State of California are presumed competent whether they take CLEs or not, while other attorneys are presumed incompetent if they do not take CLEs - therefore, attorney competence in California is the function of where you work.  You work for the government?  You are presumed competent.

The Supreme Court of the State of California - the regulator of the legal profession in the state - claimed in People v NGO this:

"If MCLE compliance were truly a sine qua non of competence, surely the Legislature would not have exposed the state to incompetent representation by its own in-house counsel."

Moreover, the California Supreme Court references a case from the Texas Court of Appeals, where the court came to a similar conclusion: representation by counsel suspended for non-compliance with CLE requirements is not a denial of right to counsel on 6th Amendment grounds.

In the Texas case in 1996, 

"[a] jury found appellant, Vance Alan Henson, guilty of possession of more than 400 grams of flunitrazepam, a controlled substance, and the trial court assessed punishment at fifty years in the Institutional Division of the Texas Department of Criminal Justice and a $25,000 fine. Appellant challenges the conviction by six points of error."

Ok, so a criminal defendant in Texas, a consumer of legal services, challenged on appeal his conviction for possession of a controlled substance and sentence of incarceration for 50 YEARS for possession of 400 grams (less than a pound) of a controlled substance, for, among other points, these reasons:

"By his third, fourth, and fifth points of error, appellant complains that his trial counsel was ineffective. Appellant first contends that trial counsel was ineffective because, during the trial, counsel was suspended from the active rolls of the State Bar of Texas for non-compliance with the Minimum Continuing Legal Education (MCLE) requirements."

In other words, the criminal defendant claimed that he was not represented at trial by a properly LICENSED attorney.

The Texas court engaged in this profuse legal analysis of the issue (I omit internal citations, they are available here):

"The Sixth Amendment requires that an accused have both counsel and reasonably effective assistance of counsel. ... 

Representation of counsel under the Sixth Amendment means at the very least, "representation by a licensed practitioner." 

When defense counsel is "not authorized to practice law in any state, and the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character," the Sixth Amendment right to counsel will not be met.

Moreover, when there is an actual or per se denial of representation of counsel, a defendant "is entitled to relief without proving that he was prejudiced by the deprivation.

To receive a reversal because of a violation of the Sixth Amendment right to counsel, appellant must demonstrate that trial counsel committed actual errors or omissions which prejudiced the defense."

So, the State of Texas, same as the State of California, calls a SUSPENDED attorney "a trial counsel" (as if the attorney is fully licensed) - in order to preserve a criminal conviction, even in a death penalty case, see the California Supreme Court citing the Texas case of a criminal conviction with a death penalty where the criminal defendant was represented by a suspended attorney:

"To receive a reversal because of a violation of the Sixth Amendment right to counsel, appellant must demonstrate that trial counsel committed actual errors or omissions which prejudiced the defense. Parrish, 840 S.W.2d at 66; see Hill, 393 S.W.2d at 904 (overruling Martinez v. State, 167 Tex.Crim. 97, 318 S.W.2d 66 (1958), where death penalty was reversed when trial counsel was suspended for failing to pay State Bar dues although no complaint had been asserted about counsel's incompetence).

Yet, while the California and the Texas case claimed that the suspension of attorneys for non-compliance with CLE was simply a "technicality" and does not affect the attorneys "legal ability" or "moral character" (the question is then - why consumers of legal services are deprived of their services, especially where in all of those cases we deal with suspensions of criminal defense attorneys), Michigan, in a case referenced by the California court, went further than that.

In People v Pubrat, a case decided by Michigan Supreme Court in June of 1996, with a "precedential" status, the criminal defendant was contesting "the validity of a nolo contendere plea and the resulting sentencing that were conducted while the defendant's attorney was suspended from the practice of law".

The plea was "to attempted larceny from a building and carrying a concealed weapon".

If in California and Texas the court presented the suspension as not addressing "legal ability" or "moral character",  the suspension in Michigan was definitely addressing moral character of the attorney, because it was based on a criminal conviction of the attorney, and the suspension of the attorney was "disciplinary":

"The Court of Appeals [in Michigan - T.N.] reversed the defendant's conviction, reasoning that a disciplinary suspension reflects a lack of either competency or ethics. The Court of Appeals concluded that because of the suspension the defendant was represented by a person who was not an attorney, his right to counsel was violated, and that violation can never be harmless error. Accordingly, the Court of Appeals set aside the defendant's conviction."

After paying lip service to constitutional precedents that right to counsel is fundamental in criminal proceedings, the Michigan Supreme Court reversed the Court of Appeals and reinstated the conviction obtained while the criminal defendant was represented by a counsel suspended through a disciplinary suspension.

Michigan Supreme Court rejected defendant's claim that he was not represented by an "attorney", claiming that a suspended attorney is nevertheless an "attorney" until he or she is disbarred, calling the defendant's argument that representation by a suspended attorney is a denial of defendant's right to counsel under the 6th Amendment "syllogistic":

"The defendant's argument is mainly syllogistic: the defendant has the right to an attorney; a suspended attorney is not an attorney; therefore, the right was violated. However, the syllogism fails because its second premise is inaccurate. A suspended attorney is an attorney who has been suspended from the practice of law, but is still an attorney.[1] A person who becomes an attorney remains an attorney until formally disbarred or otherwise permanently separated from the bar. A suspension does not alter the formal status as an attorney."

Moreover,  the Michigan Supreme Court pointed out that "[t]his is not a case in which a lay person has masqueraded as an attorney".  Apparently, to the Michigan Supreme Court practicing law without a license by an attorney whose license was suspended for disciplinary reasons differed from the situation where a person practicing law without a license was never admitted to the bar:

"Although we do not address the question here, it is possible that we would reach a different result if the defendant's counsel had never been admitted to the bar."

Then, the court advances into its own "syllogistic" argument disagreeing with courts that automatically reverse criminal convictions where the representing attorney is suspended or disbarred at the time of representation (New York is one of them):

"A rule of reversal per se has been adopted by other jurisdictions that have considered that question. Those courts have declined to reach the question whether the person pretending to be an attorney actually provided adequate representation. The reversal is based on the fact that the person technically was not an attorney at all.[2] However, the conclusion that a person was not an attorney for right-to-counsel purposes is based on the fact that the person never became an attorney, not on the basis of a suspension. Thus, the reasoning of these cases does not support the adoption of a rule of reversal per se on the grounds that a suspended attorney is not an attorney. A suspension is irrelevant to that inquiry."

So, while attorney licensing and attorney monopoly for court representation is declared to exist because of PRESUMPTIVE competence of a licensed attorney to provide an effective representation in court, apparently, when criminal convictions are at stake, Michigan goes further and analyzes whether an individual who was not a licensed attorney, "actually provided adequate representation".

Moreover, the Michigan Supreme Court held that:

"The right to counsel is thus substantive, focusing on the actual assistance received, rather than mere form. We decline to hold that representation by a suspended attorney alone creates a reasonable probability of ineffective assistance."

Yet, the law of the State of Michigan at the time was clear - a suspended attorney could not practice law, it was a crime for him to do so.

And, the law was clear that the defendant had a right to "counsel", meaning, under Michigan State Law, a licensed attorney - where the State of Michigan had an OBLIGATION to provide defendant with an assigned LICENSED attorney if the defendant could not afford one.

So, the Michigan State court was absolving the government of its obligation to PROVIDE proper counsel to criminal defendants, not only supporting criminal convictions.

And, by this case, the Michigan State Supreme Court, the regulator of the legal profession in the State of Michigan, threw all declarations that attorney licensing exist to protect consumers, down the drain - here the consumer of legal services claimed lack of protection because of lack of licensing, and lost.

Yet, if top courts in three states could disregard clear statutory law made in order, at least allegedly, to protect consumers of legal services, when the challenges were brought by such consumers, any potential consumer of legal services, in choosing a court representative, can apparently do that, too - BEFORE going to court, and ask whether a certain unlicensed individual is able to provide an effective representation.

The Michigan Supreme Court also engaged in very interesting analysis of administrative and disciplinary suspensions, coming to the conclusion that some suspensions of licenses are based on "purely personal reasons" that do not affect ability of suspended attorney to provide "effective representation of counsel" to clients.

Since attorney licensing exists to protect consumers of legal services from attorneys who cannot provide effective representation of counsel, then, attorneys in Michigan, after this ruling, can practice, risking a criminal conviction for unauthorized practice of law, and claiming that, because of People v Pubrat, Michigan Supreme Court actually annulled the reasons for attorney licensing in the State of Michigan, and suspension for disciplinary or administrative reasons is not the end of story for the attorney, does not preclude the attorney from providing effective assistance of counsel, and thus should not preclude the attorney from practicing at all.

Even though attorney disciplinary proceedings are claimed to be "civil" and "remedial" in nature, seeking to "protect the public" (in order to deny the disciplined attorney a heightened procedural protection that would be required in punitive proceedings), the Michigan Supreme Court, in order to uphold a criminal conviction, undermined that claim and indicated this:

"The suspension of an attorney reflects a decision that the attorney is not permitted to practice law during the period of the suspension, rather than a statement that the attorney is not competent to practice law. There is no necessary correlation between disciplinary action and an attorney's ability to practice law, and we decline to create such a connection as a matter of law."

Huh?

Isn't it clearly punitive? We do not allow the attorney to practice law, even though the attorney may be competent to practice?  And provide valuable services to consumers of legal services, especially in the field of criminal defense, where the "justice gap" is felt the most in this country?

It is notable that there is a very strong one-judge dissent in the Michigan case:

The dissenting judge mentioned that the defense counsel "suspended from the practice of law because of his plea of guilty of the high misdemeanor of attempted conspiracy to manufacture, deliver, or possess marijuana with the intent to deliver or possess marijuana".

The dissenting judge reiterated the principles of effective representation in criminal cases:

"The United States Supreme Court recognizes that representation of criminal defendants consists of basic duties including, but not limited to, a duty of loyalty, a duty to avoid conflicts of interest, a duty to advocate, and a duty to possess the skill and knowledge necessary to "render the trial a reliable adversarial testing process." Id. at 688, 104 S.Ct. at 2065. Effectiveness of representation determinations are made in light of these duties and are guided by the prevailing norms of professional practice. Id. Courts universally acknowledge "that the constitutional guarantee of the right to effective assistance of counsel deserves the utmost protection".

The dissenting judge pointed out exactly why attorney licensing and accompanying attorney discipline are declared to be necessary:

"Disciplinary procedures exist to protect the public and ensure that only attorneys who continue to meet the high standards required by the state bar will practice law", and "[t]he suspension of an attorney evidences the state's determination that the attorney is unfit to represent either the public or the legal profession. MCR 9.105."

The dissenting judge further stated that the majority opinion was dictated not by motivations that were expressed in that opinion, but by considerations of judicial efficiency.  In other words, the dissenting judge accused the court of lying and putting false reasons into the majority decision in order "not to burden the courts" with necessity to check out licenses of attorneys - which takes 2 minutes total on the Internet, or a requirement for attorneys to carry attorney cards with them at all times and present them at court hearings, and attach copies to their pleadings.

"The majority appears to say that even though this attorney is deemed unfit to practice and is suspended, he may continue to represent this defendant. The position articulated by the majority does not make good legal sense. The majority's opinion appears, at least in part, to be based on its fear of burdening the courts with the duty of "ascertaining that each attorney who appears before a tribunal has a valid, current license...." Op. at 600. The right to counsel is critical and should not be subordinated to judicial efficiency."

It is interesting to see that a dissenting judge of the top state court implicitly recognizes that courts make opinions in important cases, on fundamental constitutional issues, based on self-serving consideration of their own convenience other than the reasons articulated in judicial opinions.

The dissenting judge logically concluded that:

"If the state believes an attorney is unfit to practice law, then I believe that a defendant represented by a suspended attorney is automatically entitled to a review of the effectiveness of that attorney's representation."

The dissenting judge actually lashed out at the majority of his colleagues by saying:

"In the instant case, [the defense counsel's] suspension arising out of a drug conviction, coupled with the continued representation of the defendant in violation of the rules of suspension, is enough to raise a serious question about whether defendant was denied effective counsel. 

A contrary holding by this Court mocks the notion of a constitutionally guaranteed right to counsel and weakens the significance of the licensing requirements of the legal profession."

"Weakens the significance" is the understatement of the century.  The majority opinion DESTROYED the claim that attorney licensing and attorney monopoly ensures consumer protection in court representation.

After People v Pubrat, there is no legal grounds in Michigan (and in states following this decision) to assert that:

1. attorney licensing, and attorney monopoly on court representation, exists for protection of consumers of legal services; or
2. that attorney disciplinary process is "civil" and "remedial" (instead of punitive), in order to deny attorneys higher procedural protections in such disciplinary proceedings.