In a messed up review, the 3rd Circuit makes a revolutionary pronouncement: litigants have an UNWAIVEABLE right to impartial judicial review - so, judges' "absolute discretion" to recuse or not to recuse has been flushed down the toilet. Long overdue, by the way

On February 28, 2017, the U.S. Court of Appeals for the 3rd Circuit, judges Joseph Greenaway (born in 1957), Jane Roth (born in 1935, 82 years of age) and D Michael Fisher (born in 1944, 73 years of age) recently reversed a 1998 conviction for murder decided by a single judge, the then-70-year-old #LisaRichette, 

who died in 2007, at a bench trial in a state court in Pennsylvania, and since then, affirmed on appeal by the Supreme Court of the State of Pennsylvania, including judge #MichaelEakin and #RonaldCastille, who both retired or resigned from the bench and were both subject to controversies with refusal to recuse.

Eakin refused to recuse from suspension proceedings of Pennsylvania Attorney General #KathleenKane whose investigation brought about his resignation - so he first ordered suspension of her license, and only then resigned from the court.

Castille retired only after he denied 4 TIMES a habeas corpus petition to a criminal defendant in a DEATH PENALTY case, where

• Castille, as a District Attorney, ASKED for that death penalty from the prosecuting court;
• Castille's subordinate, an Assistant District Attorney, concealed Brady material (exculpatory evidence) from the defense; and
• Castille's subordinate, an Assitant District Attorney, suborned perjury from a co-defendant in the case in order to convict and obtain the death penalty in that case;
• Castille was elected to the Supreme Court of the State of Pennsylvania on the platform of being "tough on crime" as a prosecutor, counting the fraudulently obtained conviction and death penalty as one of his personal achievements;
• Castille refused to recuse from the 4 habeas corpus petitions;
• Castille instead filed a "concurring" opinion blasting allegedly inappropriate behavior and zeal of the condemned person's attorneys;
• the U.S. Supreme Court reversed and remanded denial of habeas corpus - of course, it was sent back to the same court that denied it 4 times before - in Williams v Pennsylvania in 2016, specifically indicating that decisions made by a judge acting as an accuser and adjudicator are void, and that the judge had an obligation to recuse - actually, 4 times!

After this stellar combination of judges affirmed the conviction on appeal, the convicted defendant brought a habeas corpus petition in federal court.

The lower federal court, Judge Norma Shapiro,

who also died, in 2016, one month after the appellate oral argument of this case, denied the petition.

Judge Norma Shapiro, who was 86 years old at the time of the decision, denied the habeas corpus petition WITHOUT ANY EXPLANATION.

Here are the habeas corpus issues raised in the petition,

and here is the decision of those issues by Judge Norma Shapiro without any explanation:

- begging questions:

• whether Judge Norma Shapiro anything about the case at all, or whether she was too frail to meaningfully perform her duties as a judge; and
• whether #JudgeNormaShapiro, in denying the petition, protected the memory of her female "trailblazer" colleague on the bench Lisa Richette with whom Judge Norma Shapiro was personally acquainted, was likely her friend, and fought discrimination against women together - but Norma Shapiro nowhere in this case made a disclosure about her close connection with Lisa Richette:

I would ask - what was the likelihood that Judge Norma Shapiro was even assigned to the case screwed up royally by her friend in the Pennsylvania State court Judge Lisa Richette?

And what was the probability that Judge Norma Shapiro would die one month after the oral argument in the case, when she, probably, realized that there is no way to save her friend from embarrassment.

Well, the court managed that anyway - even with the reversal of conviction, describing egregious misconduct of the 70-year-old Judge Lisa Richette, but refusing to put the blame on her, instead putting the blame entirely on the criminal defense attorney who did not move for her recusal - omitting two sticky issues:

1. that the attorney in question was an appointed attorney:
1. appointed by Judge Lisa Richette;
2. financially dependent on that and further appointments; and
3. in Judge Lisa Richette's hands entirely - the attorney could be suspended from practice of law (as, for example, New York did with attorney John Aretakis in 2008 for making a motion to recuse also in a criminal case).

As I recently stated - but was not heard by the U.S. Supreme Court - in my certiorari petition of my disciplinary suspension for making motions to recuse a judge:

"an attorney should not be put in a situation where carrying out her duty to her client in securing a federal constitutional right even theoretically involves a risk of losing her livelihood for herself and her family, otherwise motions to recuse will never be made".

Yet, Pennsylvania repeatedly puts attorneys in such a position, and the public is repeatedly suffering for it.

Pennsylvania had a "kids for cash" scandal where a judge sold kids for money into privately run juvie prison because attorneys were afraid to report the judge - see two articles on that topic, by Indiana attorney Paul Ogden, and a law review article by Sarah L. Primrose.

After the Kids for Cash Scandal, the State of Pennsylvania - and the 3rd Circuit - removed law licenses of Pennsylvania attorneys #KathleenKane and #DonBailey, Don Bailey - for claims of judicial corruption in federal courts, and as to PA AG Kathleen Kane - for investigation of the "Porngate scandal" where high-ranking judges and prosecutors in PA were caught exchanging misogynistic, sexist and racist jokes, heavily interspersed with pornography, through the use of court computer system.

Plus, in 1999, 2000 and 2006 Pennsylvania removed licenses of three attorneys who criticized judges:

• #NeilWernerPrice;
• #EugeneAndrewWrona, and
• #RobertSurrick.

Even though Eugene Wrona was disbarred (in 2006), and attorneys Price and Surrick were "only" suspended for 5 years each, in 1999 and 2000, respectively, they still remain suspended 13 and 12 years, respectively, after expiration of their suspension, so that suspension was as good as disbarment and professional death.

Of course, discipline of attorneys Wrona, Price, Surrick, Kane and Bailey, and refusal to reinstate the license of PA Attorney Andy Ostrowski for Ostowski's running for U.S. Congress on his platform of judicial reform, and for his radio show "Justice Served with Andy Ostrowski" where he interviewed victims of judicial misconduct and experts on judicial corruption, happened after assigned attorney Fred Harrison refused to move to recuse Judge Lisa Richette in a bench trial of a murder case.

Yet, attorneys were disciplined for criticism of judges at the time Fred Harrison represented his client, too, and attorney Fred Harrison did not live in a vacuum - he knew that criticizing a judge, pointing out at judicial misconduct is what is regarded in the legal profession what is politely called "professional suicide".

So, what did Judge Richette do that the 3rd Circuit finally deigned to reverse the conviction after the defendant served 19 YEARS (!) in prison?

Judge Richette:

1. Held an ex parte conference in chambers, involving the District Attorney and the victim's family  (the family of the person who was allegedly killed by the defendant) but not involving the defendant or his counsel  - the ADA who participated in that conference was NOT disciplined, even though it was a violation of both judicial, and attorney professional code of conduct;
2. During that meeting, Judge Richette, among other things:
1. sought approval from the alleged victim's family;
2. told them that, contrary to online criticism by a third person, she is not "Let 'em Loose Lisa" and is not lenient on crime;
3. sought to vet in the future anything published about her online by the alleged victim's family.

The 3rd Circuit though preferred to play fast and loose with the truth by saying this:

It is "even more difficult to understand why defense counsel Harrison failed to object to the proceedings or to move for the judge's recusal at any point during the conference"?

Huh?

Do these judges wear blinders as to what is happening in the real world, as to the fear they and their "regulation" of the legal profession instilled in that same legal profession?

I had an EXACT same situation in my practice as an attorney, with the only differences that:

• the case was civil, and
• I was a retained, not assigned, counsel.

Back in 2014, Judge Christopher Cahill of Ulster County Supreme Court, called in my opponent into his chambers for a "conference", but, when I ventured to come it, his clerk prohibited me to do that, saying clearly that Judge Cahill wanted to see my opponent alone.

After my opponent emerged out of the chambers, some 15 minutes later, I was then graciously called in. 

Instead of stepping into the chambers for my own ex parte communication with the judge, I remained at the entrance and publicly asked for the judge's recusal because he has just had an ex parte communication with attorney Delice (Dolores Felice by registration) Seligman (and attorney Seligman later confirmed the fact of ex parte communication in her later affirmation submitted to the court, moreover, she confirmed that it was usual for judge Cahill to hold such separate ex parte conferences with one party at a time).

In return, the judge started screaming that he will turn me into the disciplinary committee - even though he recused.

The screaming occurred before the chambers (that were just next door) of Judge Karen Peters who, "coincidentally", is the regulator of attorney licenses in that jurisdiction.

The result? I was suspended from the practice of law in a year, but not only nothing was done to Judge Cahill and attorney Delice Seligman - the NYS Court System even destroyed the security videotapes of how Judge Cahill was calling Delice Seligman into the chambers, and how I was trying to enter into the conference, too, but was blocked by the judge's personnel.

 

So, contrary to what the 3rd Circuit contends, it is not at all "difficult to understand" why attorney Henderson preferred to keep his license and livelihood intact and not to ask a judge to recuse herself, sending his client to 19 years in prison after a wrongful conviction.

Here is what Judge Richette did, as described by the 3rd Circuit:

Was attorney Fred Henderson wrong not to have made a motion to recuse under the circumstances?

Before it all happened to me, I would have said: "yes", without any question.

Now, I am saying - what right does the public, and a client, have in the U.S. to require of his or her attorney what amounts to a sacrifice of the attorney's entire livelihood and ability to support the attorney's family and children for that client?

What right does the public have to require that attorneys make motions to recuse, even though that same public does absolutely nothing to protect attorneys from the consequences of such work on behalf of their clients - retaliation by the judicial system?

There are, of course, good things that this decision brought.

As dishonest as it is in pretending that the court does not know why attorney Fred Henderson did not ask judge Lisa Richette to recuse, and as dishonest as it is in not actually blasting both judge Lisa Richette for misconduct and failure to recuse, and judge Norma Shapiro in the district court below for her own misconduct - failure to disclose close personal relations with judge Lisa Richette, failure to recuse herself and denying a case with evident egregious misconduct without so much as an explanation of reasons - the decision of the 3rd Circuit is, in a way, revolutionary.

First, the 3rd Circuit, did do "the right thing" - reversed the conviction that occurred as a result of judicial misconduct, ex parte communication of the judge with prosecution and the alleged victim's family.

Second, by applying the string of U.S. Supreme Court cases referring to situations where judges were irked by criticism of litigants themselves to the case where the judge was swayed by criticism of non-parties in litigation, the 3rd Circuit

finally recognized what is usually fiercely denied in court decisions, that judges are human and do not have iron-clad self-discipline, that out-of-court criticism of judges by even people other than the litigants affect litigant's cases.

But, the main point of the case, the truly revolutionary point, is the admission by the 3rd Circuit that the right of a litigant to impartial judicial review, guaranteed by the right to a motion to recuse, is NOT WAIVEABLE - and look at the colorful precedents and analysis that has led the 3rd Circuit to that decision.

So, from now on, at least in the 3rd Circuit, and in the blessed State of Pennsylvania, judges no longer have a right to refuse to recuse as a matter of their so far absolute "discretion", after "examining their own conscience", as biased and corrupt judges in New York do?

So, Kathleen Kane can go free now, and her conviction overturned because of all the appearance of bias of all presiding judges in her case - disciplinary case as well as criminal case?

So, all attorneys who have ever been disciplined for making motions to recuse are now vindicated?

Or, is it just a decision within the 3rd Circuit, the one that is mandatory on paper to follow, but is merely discretionary in reality - because courts will refuse to apply it, as they do with content-based regulation of attorney speech in disciplinary cases for criticism of judges?

In New York, by the way, the law remains (as a result of John Aretakis' disciplinary case and my case - this):

1. there is a right to impartial judicial review and access to courts, in both civil and criminal cases;
2. yet, motions to recuse in civil court are punishable against attorneys by financial sanctions for frivolous conduct and suspension without a hearing - as it happened to Tatiana Neroni in 2015; and
3. motions to recuse in criminal court are punishable against attorneys by contempt of court in criminal court and also by suspension without a hearing - as it happened to attorney John Aretakis in 2008; even though
4. several U.S. Supreme Court precedents prohibit content-based regulation of speech without strict scrutiny in all cases - but, since the U.S. Supreme Court refuses to hear cases of attorney discipline for criticism of judges, such cases, and the 1st Amendment - do not exist for attorneys; and
5. if the attorney does not make the motion to recuse - fearing what happened to attorneys John Aretakis and Tatiana Neroni - the attorney will WAIVE the client's right to raise the issue of judicial bias on appeal ("The father's claim that Family Court demonstrated bias, which involves facts outside the record, similarly is unpreserved for our review in light of the father's failure to object or otherwise move for Family Court's recusal", that is one of my cases, by the way, where I did not move to recuse the same judge who sanctioned me - and had my license suspended when I did move him to recuse -  see where the 3rd Circuit's decision declaring that right as UNWAIVABLE comes in and is important?), and will be subject to discipline and malpractice lawsuit for that now.

Future will show whether Pennsylvania courts will adhere to this newly created precedent that litigants have UNWAIVEABLE rights to impartial judicial review.

The bad cloud on the decision though is that it created a new basis for attorney discipline - for failure to make a motion to recuse. 

While the client in this case suffered pronounced harm (19 years in prison) because of that failure, the public and the courts regulating the legal profession cannot entirely lay the blame on attorney Fred Henderson for that failure - attorneys cannot be, in all fairness, disciplined for failing to do what they would otherwise be disciplined for doing.

As I said in my certiorari that the U.S. Supreme Court refused to hear: "...restrictions on the judiciary imposing sanctions upon attorneys for criticism of the judiciary should require application of strict scrutiny even more (than in other cases - TN), given that the judiciary acts in a triple role, as the object of criticism, regulator of the legal profession, and adjudicator of the controversy".

Unless this mess of attorney discipline for criticism of judges is resolved, until the public addresses and resolves that issue, all attempts to put the blame upon attorneys in causing wrongful convictions (and civil adjudications) against their clients will not make a dent, in practical sense, in wrongful convictions.

Once again, the public MAY NOT expect an attorney to sacrifice his livelihood AS A DUTY to his client in order to secure his client's constitutional right.

Before you require that duty from your attorneys whose licenses are still intact and who have themselves and their families to feed - fix the mess first with suspensions and disbarments of those attorneys who actually follow that duty.

The welcome erosion of "mandatory state bars" and the future of the legal profession

It has been a tough couple of years for the "mandatory state bars" after the U.S. Supreme Court has ruled in 2015 in North Carolina Board of Dental Examiners v FTC that members of professional disciplinary boards run by "market players" (and that would be all attorney disciplinary boards in all states) are not entitled to the so-called "state immunity" (an illegal court-invented concept, a gift given by the U.S. Supreme Court to states if they "decide", for which they have no legal authority whatsoever, to violate federal antitrust laws).

While the whole idea is very interesting of

• giving the big foxes (legal establishment) 
• authority to "discipline" the small foxes (solo and small-firm attorneys nearly exclusively targeted for discipline), and
• for both big and small foxes to be charged with the authority
• to protect the rights of the chickens (the consumers)
• without asking the chickens' opinions
• whether they want their rights to be guarded by foxes, or
• how well chickens think foxes are guarding their rights, 

and, it was very interesting for the U.S. Supreme Court to devise a "test" somehow allowing the states to "opt out" of the reach of clear federal antitrust laws (for which the U.S. Supreme Court, of course, does not have an authority - but when did such a trifle bother that court?), outside market forces started to drive changes into the happily fossilized structure of attorney regulation across the country.

On the one hand, none of the states complied so far with North Carolina Dental.

On the other hand, things did start happening to attorney regulation, and especially to regulation by the so-called "mandatory state bars" - where state bars, trade organizations for attorneys, with an interest to maximize its members' profit and minimize competition against its members, is given to regulate itself for the purposes of protecting its own clients - from themselves.


First, in California, after an audit of the California State Bar and the resulting scandal, the State Legislature refused to renew the State Bar's mandate to collect membership fees.  Of course, the California State Supreme Court overruled that, but that was a scare.

Second, in Arizona, after attorneys got pissed for licensing/"voluntary" membership fees being upped to much and filed a petition, the Arizona Legislature has introduced a new House Bill (that has now passed the Arizona House) to split mandatory (regulatory, disciplinary) functions of Arizona State Bar and the voluntary (trade association, advocacy) functions of the State Bar.

So, now the Arizona State Bar has one pocket and collecting there donations for both "advocacy" for its members before the government and prosecutions of its own members on behalf of the government.

If the bill passes, Arizona State Bar will have two pockets for two streams of cash - one for "disciplinary" purposes, a mandatory stream, and one for "advocacy" purposes, a "voluntary stream".

Of course, there emerges a problem of prosecutorial corruption which the new "separate the prosecutor's pockets" bill creates, where prosecutors are "voluntarily" "incentivized" by members of the State Bar - which in normal language is called a bribe.

One does not need a crystal ball to predict that those who "voluntarily" "contribute" the membership fees of the Arizona State bar, will not be prosecuted, while the "greedy ones" who would not grease the prosecutor's pockets by giving them "voluntarily" anything (and those, likely, will be solo attorneys and small firms), will be targeted for discipline even more than they are now.

Third, in the State of Washington the fee functions were not split by the Legislature into "mandatory" and "trade" functions - so the Washington State Bar keeps a single pocket and is "commingling" "prosecution" and "advocacy" funds from its involuntary members.

In the State of Washington, members of the mandatory State Bar, similarly, as in Arizona, were pissed with the upping of the licensing fee, but  - and voted the measure down by referendum under its bylaws.

Yet, the measure - same as the Legislative refusal to allow the State Bar to collect membership fees because of fraud, misuse and waste revealed by the audit - was overruled by the State Supreme Court.

And, there came to light a legislative bill, lobbied by attorneys, and not consumers for whose alleged protection attorney regulation is declared to exist.

In that bill, the State of Washington was decidedly confused as to who has authority to regulate the legal profession, and what is the nature of that authority.

In one short bill, the Legislature of the State of Washington, managed to offer THREE version of the source of power for regulation of the legal profession:

1) that the State of Washington has authority to regulate the legal profession, and delegated that authority to the State Supreme Court through the State Bar Act of 1933;

2) that the State Supreme Court of the State of Washington has an "inherent" authority to regulate, of all profession, only the legal profession (while regulation of other profession is handled by the executive b ranch); and

3) that the State Legislature and the State Supreme Court have joint authority to regulate the legal profession.

So, 2 branches - Legislative and Judicial - confuse each other and the public as to their right to exercise the function of the third branch, Executive, to regulate just one profession out of many - attorneys.

How the public, the consumers will benefit from all of this mess, is anybody's guess, but it is apparent that the legal profession is further "rearranging the chairs on Titanic's deck".

Not that this under-the-rug struggle will help in the large scheme of things.

According to some insiders in the artificial intelligence industry, the future of the legal profession does not lie in mandatory state bars.

Not even in deregulation.

It lies in robots - according to AI predictions, within short 10 years (maybe shorter, with the way technology develops now), the majority of lawyers will be replaced by robots.

Where will the "liberated" - from their jobs - hordes of lawyers will go then?

Wars over apple green grass that hurt the public

Earlier this year, I've posted an article about a mysterious case of attorney discipline in South Carolina that originated in federal courts, involved hidden court dockets and made no sense whatsoever from the text of the disciplinary decision.

In that blog, I pointed out that a member of the public cannot figure out from the disciplinary decision, what cases are involved, and the official registry of federal court cases do give any clue in that matter.

Since then, I received a tip from a reader, pointing me to the right cases.  I obtained some, but not all docket reports about the underlying federal case in question, and so many "irregularities" surfaced in the case that it made my head spin.

An attorney was disciplined based on that case by the South Carolina Supreme Court.

Attorney regulation, and discipline, exists - at least, the government and legal establishment declares that it is the main purpose of attorney regulation - to protect consumers from incompetent or unscrupulous attorneys.

But, as I read through the documents in the case that the tip pointed me to, I realized more and more that the public was protected from the wrong person, and that the people who the public needs to protect from are those who prevented proper enforcement of federal law, hid court dockets (an unconstitutional practice, see a similar scandal emerging in New York courts at this time) and punished not only an attorney for his diligent work, but also a party for following the law.

This case deserves diligent deciphering - and I will try to do that.

First of all, it helps to understand who the actors are.

Here is the original complaint, filed in the U.S. District Court in the Middle District of Georgia before judge Clay D. Land (a "CDL" designation in the civil action number on the right).

Note that Judge Clay Land, after transferring this case to South Carolina federal court - a move that decided the fate of the case and the fate of attorney Nolan, in favor of a South Carolina corporation despite recorded evidence of its infringement of intellectual property rights of two Georgia corporations, including a corporation called "University of Georgia Research Foundation" - was elevated to the position of Chief Judge of that federal court.

Let's also note that the attorney for defendants was a Robert Fredrick Goings of Columbia SC, of the Goings Law Firm, see trial docket report:

The Goings Law Firm advertises results of its work - with the required disclaimer at the bottom of the long list of achievements, that the firm does not guarantee those results.

As one of the top results on the list it lists this: "successful defense verdict in a multi-week intellectual property and infringement trial in the Federal District Court of South Carolina.  Prevented a $4.2 million dollar verdict.

Boy did Robert Fredrick Goings prevent that, and then some.  After all, attorney Robert Fredrick Goings, by his own admission, "has a knack for winning big verdicts".

Here is also one more interesting document filed by attorney Robert Fredrick Goings with the South Carolina STATE Supreme Court

In this masterpiece, attorney Robert F. Goings who "has a knack for winning big verdicts", as of January 13, 2014, when the appeal was still pending, attorney Robert F. Goings complains to an entity where an attorney is not licensed, about a case in a federal court governed by federal law and under the jurisdiction of attorney regulation by the federal bar.

I wonder why attorney Robert F. Goings did not file his complaint where he was supposed to.

But, anyway, Robert F. Goings admits in his complaint that

• the attorney he is complaining about is an "out of state attorney"

Actually, attorney Goings likely made a false statement in that complaint claiming that

"Mr. Nolan was admitted pro hac vice to practice in South Carolina in the /sic/ a civil action captioned The Turfgrass Group, Inc. and the University of Georgia Research Foundation, Inc. v. Carolina  Fresh Farms, LLC, Civil Action No. 5:10-cv-00849-JMC".

Watch the careful sleight of hands by attorney Robert Goings:

• he misrepresents to the South Carolina Supreme Court that attorney Duff Nolan was actually admitted pro hac vice to practice IN SOUTH CAROLINA - that had to be admission by the SC Supreme Court to practice in state courts of South Carolina; then
• he carefully omits the name of the court in claiming that after being admitted "pro hac vice to practice IN South Carolina", Mr. Nolan actually practice "in South Carolina", in a "civil action No. 5:10-cv-00849-JMC".

The problem with the last statement though is, as the docket indicates, and Robert Goings own "motion for sanctions" attached to the complaint confirms, that the case was litigated not "in South Carolina" - not in South Carolina State Courts - but in a federal court:

•  so, the governing disciplinary authority over attorney Duff Nolan, an attorney who IS admitted pro hac vice in FEDERAL court within the territory of South Carolina, but IS NOT admitted by the State Supreme Court of South Carolina, and the case thus DOES NOT invoke South Carolina STATE attorney ethical rules - would have been
• the disciplinary committee of the U.S. District Court for the District of South Carolina, where the case was litigated; 
• the U.S. District Court of the State of Georgia (where the case was filed originally), or
• the Arkansas State Supreme Court where attorney Nolan is licensed originally.

But, attorney Goings obviously understood that it would have been a waste of time to file a complaint there, because attorney Nolan did not violate any laws or ethical rules in Arkansas, or in federal courts.

Moreover, attorney Goings was not very forthcoming in the State Supreme Court of South Carolina either, because he also omitted to mention that sanctions he requested against attorney Nolan in federal court were denied on May 3, 2011, 3.5 years before he filed his complaint with South Carolina Supreme Court.

Attorney Goings' client did not appeal denial of sanctions against attorney Nolan, but such a denial had a collateral estoppel effect upon the South Carolina Supreme Court, barring it from imposing sanctions upon an attorney where the original federal court did not impose any discipline.

After all, what attorney Goings asked the South Carolina STATE Supreme Court to impose upon Attorney Nolan (who was not at the time admitted in South Carolina STATE Supreme Court, and the action attorney Goings was complaining about was not from the South Carolina State Supreme Court) was the so-called "reciprocal discipline" which could only be imposed if the federal court imposed discipline upon attorney Nolan - which did not happen.

The sanctions were in the nature of an order "in limine" (excluding evidence), and I will discuss legality of that order later in this article.

Moreover, attorney Goings clearly indicated in the Motion for Sanctions attached to his complaint against attorney Nolan that the governing law of the case is FEDERAL law, because not only the case was litigated in a federal court, but it was not even a diversity case, it was a "federal question" case, charging violation of 2 federal statutes, as attorney Goings clients' acknowledge in their "motion for sanctions" in federal court:

so the so-called "Eerie doctrine" - where the federal court sitting within the territory of a state "borrows" substantive law of the state to decide a case brought in diversity - did not apply.

The federal court case was governed by federal law, in terms of procedural law and substantive law alike.

Rules of ethics of South Carolina Supreme Court had no place in that federal court proceeding where they contradicted rules of ethics accepted in such federal proceedings, and, as attorney Nolan pointed out in his response to the complaint of attorney Goings, "surreptitious recording" in preparation for an intellectual property infringement case in federal court, is an accepted practice recognized by other federal courts:

In his response to the complaint, attorney Nolan also attached an appellant's brief to the federal court, pointing out that the appeal was still pending, and described the "apple of discord" in litigation, licensing rights to market and sell the so-called "centipede grass", an apple green type of grass that does not turn brown during southern winters, but remains green, a clear attraction for golf courses that abound in southern states of the U.S.

On appeal, plaintiffs argued, among other things, the following:

Then, things got fuzzy.

There were actually two appeals in this case, as the trial docket shows, with two different docket numbers.

The first appeal was dismissed by the federal appellate court on the day of filing, in 2013.

The second appeal has a long docket - and was eventually affirmed in 2015 without an explanation by the U.S. Court of Appeals for the Federal Circuit.

Yet, here are some interesting details about the dates in the appellate docket.

On January 8, 2014 Attorney Nolan's clients file an Appellants' Brief in electronic format.

Within 5 days, on January 13, 2014, after obviously having received the brief (in electronic format) and being upset about it, attorney Goings HAND-DELIVERED his complaint against opposing counsel attorney Nolan:

Apparently, such a complaint, filed before the end of appellate litigation, and with the wrong disciplinary body, had a clearly discernible aim - to rattle the opposing counsel so that he would not be able to function well on appeal.

And now, to the last thing that the three courts involved in the case:

1. the U.S. District Court for the District of South Carolina;
2. the State Supreme Court of the State of South Carolina, and
3. the U.S. Court of Appeals for the Federal Circuit

apparently wanted to consider - the law.

Here is a table I've put together to illustrate what has happened to the plaintiffs and to their attorney Duff Nolan, even though the law was clearly on their side.

Jurisdictions	Statutory prohibition on surreptitious recording of telephone conversations with consent of only one party to the conversation	Rules of attorney ethics on surreptitious recording of telephone conversations when one party to the conversation consents	Rules on suppression of evidence in court based on legal conduct	Was the Eerie doctrine applicable in federal court?	Were state ethical rule for attorneys applicable to rights of a party in federal court?	Are investigators allowed to put out a decoy to catch a thief?
Arkansas	No	No	No			Yes
Georgia	No	No	No			Yes
Federal Courts	No	No	No	No, it was a “federal question” case, federal law was applicable; surreptitious recording was legal under the federal criminal statute, and a decision on point in SDNY		Yes
ABA	n/a	No	n/a			n/a
South Carolina	No	Yes, in reliance on overruled ABA rule	No			Yes

All three states involved:

• Arkansas;
• Georgia; and
• South Carolina

allow surreptitious recording with consent of one party to the conversation - and so does federal law, 18 U.S.C. § 2511.

So, recordings for purposes of introduction of those recordings in a federal court "federal question" case was lawful under federal law, and under the law of all three states:

1. where the plaintiffs' attorney was originally from - Arkansas;
2. where the case was originally filed in federal court - Georgia; and
3. where the case was later litigated on transfer in federal court - South Carolina.

Since it was a "federal question" case, federal law controlled.

Under federal law it was legal.

Under the law of all 3 states it was legal.

If it was legal for the party plaintiffs to do it, it was admissible.

Had it been admitted, as attorney Goings boasts on his website, the plaintiffs could have had a verdict against them for $4.2 million - without even a jury trial, as a matter of a summary judgment.

Instead, not only the case was decided for the defendants - because of an application of South Carolina State rule of attorney ethics that, while claiming it followed the ABA rule, contradicted the modern ABA rule on the subject which was aligned with state and federal law while the South Carolina attorney ethics rule wasn't, to the work of plaintiffs' investigators which was legal under state and federal law.

Attorney Nolan attempted to explain to the South Carolina disciplinary court - as if they wanted to hear him - that, as a matter of due diligence, because of the case Twombly in federal court that required enhanced factual pleadings to survive a pre-answer motion to dismiss, he had, as a matter of due diligence, to do such investigation pre-filing.

As a matter of fact, had attorney Nolan not ordered pre-filing investigations, he could have been sanctioned for filing a meritless lawsuit without conducting a proper pre-filing investigation, based on "conclusory allegations alone" - but then, of course, defendants would have rounded up their wagons, instructed their employees and hid their evidence.

So, apparently, when you step on the wrong toe in litigation, you can be sanctioned no matter what you do.

Attorney Nolan was sanctioned because he conducted his due diligence, as required of him by attorney rules of professional conduct, as well as his duty to their client.

What I cannot get is - why federal court punished two plaintiffs, corporations, for lawful conduct, depriving them of damages for violation of their intellectual property rights?

Once again - whatever attorney Goings could be alleging that attorney Nolan could have done wrong under South Caroline State rules of ethics for attorneys, the plaintiffs and their investigators did nothing wrong under federal or state statutory law, and there was no legal basis to strike the recordings.

I wonder what kind of strings were pulled by the defendants to block clear evidence of wrongdoing, lawfully obtained by the plaintiffs, so that the jury would return a verdict for them?

Because, when clear law is not applied, it is clear that strings had to be pulled, on all levels, so that:

• Lawfully obtained evidence that had to result in a summary judgment for the plaintiffs, was blocked, and thus returned a jury verdict for the defendants (because the jury was not allowed to hear those recordings where investigators posed as customers, in a proven investigative technique of "posing a decoy to catch a thief";
• Well-respected experienced attorney for plaintiffs was sanctioned by federal court for doing his duty and following the law, and then sanctioned by a South Carolina State Supreme Court for allegedly "violating the state ethical rule" - in federal court, where what he did was legal.

All of the above so that attorney Robert Fredrick Goings could post this on his website?

But, whatever fee attorney Goings got for this case, wasn't the price for the public too high?

Because, whenever a court case is decided not on the law, but obviously based on in-state connections against out-of-state litigants and their out-of-state attorney, and especially where, like with attorney Nolan, a pretense is made that, by using connections in imposing court sanctions against a person who did nothing wrong and who diligently and lawfully worked to ENFORCE the existing law - justice is subverted.

Moreover, the University of Georgia Research Foundation, Inc., that was trying in vain to regain its rights against those who were unjustly enriching themselves by selling the product of their research, is a tax-exempt entity, operating on people's tax-exempt donations, and tax dollars.

It is the people, the taxpayers who were cheated in this case - because somebody knew the right strings to pull so that the law would stop applying.

And that's a complete shame.

I hope, this case is not at an end, and should be looked into by proper federal investigative authorities.

The should be copies of recordings still remaining for review, proving the case for the Georgia Research Foundation, and there is a deposition (marked confidential, but available for a fee online on Pacer.gov), which I have bought, together with exhibits, and am now publishing for everybody to see.

Judge for yourself how that case was decided.

It is all about pretty apple green grass that taxpayer-backed research produced - and private corporations now distribute without a license because federal court did not want to enforce federal laws.

Let's remember that.

And ask for impeachment of federal judges who blocked this license infringement case.

Here are their names and happy faces.

Judge Clay Land of the U.S. District Court for the Middle District of Georgia, who transferred the case from Georgia to South Carolina, and who was since elevated to the position of Chief Judge of that court.

Judge J. Michelle Childs, an "ardent ambassador" instead of a neutral applier of the law,

who went along with Robert Goings motions for sanctions and in limine and blocked lawfully obtained investigative evidence that, if allowed to be used, would have resulted in a summary judgment and a jury verdict, possibly, much exceeding the $4.2 million that attorney Robert Goings is boasting of "defending" his clients against.

And, Federal Circuit judges who affirmed the jury verdict made by a cheated jury who was not allowed to see the actual evidence in the case because of the unlawful decisions of the "ardent ambassador"  District Judge J. Michelle Childs - through a "non-precedential decision", without any explanation, possibly without doing any work at all.

After all, no effort is needed to put one word "affirmed" on a piece of paper instead of engaging in legal research and reasoning, and that's what the three of them did.

Chief Judge of the U.S. Court of Appeals for the Federal Circuit Sharon Prost:

Federal Circuit Judge Pauline Newman, see also here (born June 20, 1927, and who was 88 years of age when she decided to endorse blocking lawfully obtained evidence without an opinion or explanation):

and

Federal Circuit Judge Richard Taranto, former law clerk of the U.S. Supreme Court Justice Sandra Day O'Connor:

So - Defendants won

Attorney Goings won, and can continue advertising his winnings for this clients (without, of course, mentioning what kind of means he uses to get those winnings).

Judge Clay Land won, having been promoted to the position of Chief Judge for his transfer of the case into South Carolina, where the right connections could be pulled so that the case is decided in favor of South Carolina defendants and South Carolina attorney.

The three smiling-face judges do not care, they sit in the Federal Court of Appeals for life, and will be throwing around speeches about "judicial excellence" and the rule of law until they drop dead - while doing quite the opposite, without any explanation whatsoever.

And we, the public - lost.

Don't tell me that this is "the rule of law".

The rule of law is actually following the law, federal statutory law in this case, and not deciding a court case on a whim.

This is, ladies and gentlemen, the "rule of men" - and women - 3 women and one man actually decided this case.

We shouldn't tolerate such a rule of connections and such a perversion of justice, allowing private entities to enrich themselves at the expense of publicly-funded research institutions.

Impeach them.

New York courts engage in an unconstitutional practice of hiding entire court cases from public docketing, and administrators of courts on all levels pretend the have no clue. Maybe, impeachment will help?

More than a year ago I wrote a blog about the U.S. District Court for the Northern District of New York hiding the entire docket of my alleged suspension in that court.

I said "alleged" because suspension of an attorney, same as an admission, is a public court order, and, while I am listed in that court as "suspended", there is no such public court order - or even a public docket on Pacer.gov showing that there is a disciplinary case against me.

That was true in 2015, 2016, and that remains true today.

Here is the scan of all cases where I appeared as an attorney or a party (or both), and there is no case there that started in November of 2015, after I was (illegally) suspended in New York State for making motions to recuse on behalf of my indigent clients. 

While the Northern District of New York continues to play game with hidden court dockets, a scandal is currently unraveling in New York State where a Nassau County legislator #LauraCurran raised the issue that Nassau County Courts did the same thing as the U.S. District Court for the Northern District of New York did in my case - the courts are hiding court dockets.

And, while it was obviously ok in my case for the NDNY court to play these games with my hidden docket and claim that I am somehow suspended - while now public docket or order of suspension was available, when New York State Court were caught red-handed in hiding court docket, the reaction of state court administrators was different.

First, the press picked up on those hidden dockets, and ran not just one, but two articles so far about it, here and here - before New York State Court Administration reacted.

The press indicated that it is not clear HOW MANY of hidden court dockets exist - how many of these dockets New York State Courts (where all judges are sworn to uphold the U.S. and New York State Constitution and federal and state law, as well as Canons of Judicial Ethics, engaged in this clear fraud upon the public and violation of their oaths of office).

Moreover, John Ferretti who was portrayed by the press as a "Chief Deputy Clerk", but who is listed on New York State attorney registration website as THE Nassau County Clerk

  


claimed that he "does not know", for how long the "practice" of hiding certain court dockets was going on in Nassau County.

John Ferretti, of course, is not Nassau County Clerk.

Maureen O'Connell is listed as such,

Maureen O'Connell is also an attorney "with no record of public discipline".

"No record" in New York courts is becoming a new pun, isn't it?

Maureen O'Connell said nothing about the ongoing scandal with missing court dockets on her webpage.

Look what Maureen O'Connell tells us on her webpage:

"I am delighted that you have chosen to visit the County Clerk’s online office. Please note that Nassau County land documents are now available to search online for your convenience.

The County Clerk is an office created by the New York State Constitution, serving as Clerk of the Supreme and County Courts and as an agent for state and federal governments. In addition, the Clerk is responsible for recording documents relating to real property located in Nassau County and maintains the official index of real property ownership.

As County Clerk, my primary objective is to continue to implement strategies to promote real-time services and facilitate enhanced access to serve the residents of Nassau County. We constantly are working to strip away layers of bureaucracy, improve access to official records, and streamline operations while containing costs.

The Nassau County Clerk’s Office offers a variety of services to assist the courts, legal professionals, and the public. We process hundreds of millions of dollars per year in transactions and have many statutory duties. I hope our website is informative and that this office processes your transaction to your satisfaction.

And, if he lied to the public on that - and I am sure he did, because the County Clerk's office is where all cases are filed, and where the actual sealing was taking place - he engaged in untruthful conduct making John Ferretti unfit to be an attorney.

I will not hold my breath though to wait until disbarment of John Ferretti, as I am sure the system that "regulates" attorneys will protect "their own" - as it always does in New York, without fail, and especially given how much John Ferretti knows about the dirty little or not-so-little dealings in courts.

And, if that practice exists in Nassau County, I wonder whether it exists in all other courts in the State of New York.

Of course, now that the scandal is raging in the press, New York Chief Administrative Judge Lawrence Marks had to say something, so he said that the practice of hiding court dockets, if it really is like that, is "troubling".

Of course, it is not just "troubling", but, as the press had no trouble pointing out, unconstitutional - as held in the 2nd Circuit 13 years ago (having jurisdiction over New York), and in 11th Circuit:

Here is another article describing how dockets are being hidden in federal trial courts.

And, here are the decisions of the U.S. Court of Appeals for the 11th Circuit in U.S. v Valenti in 1993 and of the U.S. Court of Appeals for the 2nd Circuit in Hartford Courant Co. v. Pellegrino in 2004 ruling that hiding court dockets from the public is unconstitutional.

I know wonder whether New York State Courts will now reveal to the public:

1. all index numbers concealed over, let's say, 50 years going back;
2. all names of parties and their attorneys involved in knowingly engaging in litigating cases on secret dockets; and, of course,
3. all names of judges who ordered such sealing of dockets.

After all, since it is Nassau County court dockets are hidden, such dockets may involve a lot of politicians, government officials and celebrities.

And, while I will not hold my breath as to discipline of such judges and such attorneys, it will be interesting to see how Nassau Courts and New York State Court Administration will be getting out of this mess.

Right now the New York State Court Administration - both the Chief Judge Janet DiFiore with her "Court Excellence" program, and the Chief Administrative Judge Lawrence Marks, pretended that they have no control over how the lower court judges administrate their court dockets. 

Even though they are chief administrators of the court setting policies on how to administer those same court dockets - and hiding many court cases obviously denotes a policy.

Count on "the honorable" courts in New York to:

1. do something illegal; and, when caught red-handed
2. try to hide it and have its personnel - an attorney no less, whose license is "regulated" by the courts - lie about it.

I bet Nassau County Clerk #JohnFerretti (in New York County Clerks are also the filing court clerks at County and Supreme Court trial levels) was told to zip his lips, or be thrown under the bus, his license and livelihood and all.

I will continue to cover this story.

Stay tuned.