Harvard Law School setting up a trend of putting more makeup on a decaying corpse

In January of 2016, a prominent legal blog "Above The Law" published an article about a "controversial" decision of the Arizona Law School to accept students not only based on their LSAT (Law School Aptitude Test), but also on their GRE test scores.

GREs are subject tests in specific subjects towards further acceptance into graduate schools, not necessarily law schools.

It is apparent that measuring an undergraduate's achievements in chemistry or physics may not be a good measuring stick to figure out whether he will be a good attorney.

Moreover, graduate degrees in biology, chemistry, literature and the English language, and physics do not require licensure, the only profession out of the GRE Subject Tests, psychology, and GRE in psychology is not the only test accepted when GREs are accepted by law schools.

Yet, the whole idea of attorney regulation and licensing is presented to the public as a vetting process by the government for the consumers of integrity and competence of attorneys as the only people in the United States allowed to represent people in and out of court and draft documents securing legal rights.

Part of that vetting is standardization of legal education and making sure that when a consumer finally hires a licensed attorney who was:

1. selected and accepted by a law school;
2. successfully completed the supposedly rigorous law school curriculum;
3. passed the bar examination

the consumer can be assured of at least a minimally acceptable level of competence of such a licensed attorney.

LSAT was used as a prediction tool of performance of law students in law school, testing specifically language and logical skills:

While testing college graduates on "reading comprehension" as a threshold for admission to law schools might look funny (that skill, after all, is taught in kindergarten), the level of that skill tested, and the way it is tested in LSAT can easily fail an English honors college major.

You are given approximately 1 minute 35 seconds per question, you are required, during that time, to read large spans of texts from various areas of human knowledge (as lawyers routinely have to do), and you have to "turn on a dime" in your thinking, instantly grasping what is the gist of the issues involved in order to be able to answer the "split-hairs" questions.

That is not how English majors are taught.  Once again, you cannot really prepare for an LSAT.  You either have in you that agility of intellectual reaction, or you don't.

The difference of LSAT from GRE is that you cannot predict the topics (as in biology you are tested in biology and in chemistry - in chemistry) of the texts you are required to instantly comprehend, see the logic and answer questions.

That's why accepting GRE tests instead of LSAT tests is a step down for law schools - which will necessarily tell upon a further raising numbers of graduates of law schools failing bar exams.  You cannot expect good quality at the exit of law school if you do not require good quality at the entrance, good quality for this particular profession.

Above The Law picked up the problem a year ago in criticizing Arizona Law School's decision to accept GREs in lieu of LSATs as "controversial".

Moreover, Above The Law clearly pinpointed two "not so altruistic" reasons as letting incoming students save time and money on having to undergo two exams (GRE and LSAT) instead of one-fits-all for all graduate schools (GRE):

1. the measure was meant to address declining enrollment in law schools, and was directed at the bottom-line of law schools as businesses (here goes good solid law school education as cornerstone of promises to the public that attorney regulation is necessary, and that law school education provides a presumption of competency to the consumer);
2. the measure was meant to keep law school rankings afloat since the ranking system, US News and World Report, ranks law schools, among other criteria, by incoming LSAT scores, but did not do that yet as to incoming GRE scores

When a school lures people into a gigantic lifetime investment by pretending to be what it is not, is a type of fraud.

Lawsuits against law schools for failure to notify students of the waning prospects for employment on graduation are on the rise, see, for example, here, here and here.

And, those lawsuits are fended by the regulator of the legal profession - the courts - by bluntly telling the students that, if they claim their are bright enough to be selected by law schools to be attorneys, and to have passed the bar, they cannot pretend to be so dumb as not to see the situation in the market on their own.

It is interesting that, like in other aspects of attorney rights, attorneys are not entitled, in the eyes of the courts and the public, to the same rights, even against education fraud, as other people.

This country was, at the very same time, vigorously criticizing Trump University for alleged fraud upon students, and no less vigorously criticizing a law student who dared to sue her law school for the same thing, education fraud.

So, a year ago, according to Above the Law, Arizona Law School engaged in "controversial" behavior in order to:

1. duck erosion in enrollment, and
2. duck erosion in rankings.

Since Arizona Law School is also an ABA-certified law school, and the ABA certification presupposes LSATs as entrance tests to law schools, the Arizona Law School also likely violated the conditions of its accreditation by starting to accept GREs in lieu of LSATs.

The ABA addressed the issue in July of 2016, describing in its article about Arizona Law School and its GRE decision that:

"”The law school has submitted a study, … which the law school believes meets this requirement of the standards,” says Currier. “A review of that study will be done and considered by the ABA Accreditation Committee, which works under the council. That review, as are most matters related to a law school’s compliance with accreditation standards, is a confidential matter under the rules of the law school accreditation process.”

So, a law school, seeking to lure more students who may fail in the future legal employment market, and to bamboozle the public that consumers can still rely on the product of that trick as "presumption of competence" of licensed attorneys, provided a study (which it obviously paid for) that pretended that the law school decision is supported by science.

And, the ABA is reviewing that study in secret, even though the study is on the most important topic of public concern

We do not see the outrage in the press, social media, ACLU is not up in arms, and law professors are not writing any complaints.  Well, they won't.  How can they?  If enrollment in law school goes south the way it is now, they may not be professors for long, so any measures to stop that tendency, even if by trick, would be good.  As a matter of legal ethics.

Fast forward to 2017.

Now, the Harvard Law School did the same, announcing that it will accept GREs in lieu of LSATs.

What was a "controversial" decision and a shady business meant to raise enrollment and hide poor rankings by bamboozling the incoming students to apply and pay tuition (by burdening themselves with giant student loans), and by bamboozling the public into believing that such education will serve as a presumption of competence of licensed attorneys - is suddenly starting to become mainstream, simply because Harvard Law School decided to do it, too.

After all, "when Harvard sneezes, everybody gets a cold" - which really says a lot about independent thinking of providers of legal education in the U.S.

Of course, Harvard does not have a problem with enrollment - or does it?

And, of course, Harvard does not have a problem with the ranking of its Law School - or does it?  After all, its law school team, armed with education, training and computer aided research, lost recently to a team of uneducated prisoners using obsolete paper-only prison library in a law competition.

Now that Harvard sneezed, ABA gets a cold, and

Now that Harvard said that it is ok for the honorable profession to bamboozle the incoming student body and the public in this particular way, the ABA jumped and will put a seal of approval on it.

Yet, putting cosmetics on a corpse does not usually revive it.

Nothing, not lowering the requirements at the bar exam, not lowering the requirements at the entrance to law school, is going to help when the legal profession has its collective head in the sand and refuses to see the writing on the wall - deregulation of the profession is coming.

Either the legal profession as it is today will be destroyed because of the onslaught of technology - which hit the legal profession from both sides (I wrote about it, coincidentally, in July of 2016, at the same time when ABA was secretly considering the "study" from Arizona Law School to drop admission requirements for law students):

1) the rich - with ROSS artificial intelligence legal research system:

2) and the poor - with the DoNotPay computer bot that is now successfully advising how to defend against traffic tickets AND file refugee applications;

and where it is predicted by artificial intelligence industry insiders that robots will replace the majority of lawyers within a short 10 years.

In Netherlands, England and Canada, people are already resolving their disputes, from custody of children to claims of nuisance, through computer bots.

Or, it will come because of the "justice gap" that the legal profession, by creating monopoly for court representation, created, where the majority of the legal profession gravitates towards serving the poor, and the majority of the public, financing the regulation of the legal profession, remains holding the empty bag of promises and unable to afford an attorney.

Or, it will come because, by the use of disciplinary proceedings against solo and small firm attorneys as a tool of eliminating competitors (and critics of systemic flaws in attorney regulation and the justice system as a whole, including judicial misconduct), the little guys and gals will be eliminated, and there will come a fight between the giants who will devour one another.

Or, it will come through the so-called "disbundling" of legal services, which is already happening through proliferation of companies offering information and "do it yourself" forms to consumers.

Or, it will come, as it is already happening now, with the further drying up of the young people willing to put on themselves a crushing debt of law school with very unsteady promise of employment, and a real risk of having investment of their lifetime be destroyed because an attorney does the right thing, raises a sensitive issue in court, like judicial bias and/or misconduct - and in the process pisses off a judge.

No matter what combination of factors will change the legal profession to the point of elimination of, possibly, the majority of attorney jobs as we see them now, within a very short time - it is coming.  Fast.

Having a giant like Harvard put a seal of approval on an otherwise fraudulent move to further conceal problems in the market of legal services, in order to trigger a responsive reaction in the "opinion leaders" and to set a new trend of putting makeup on a corpse won't change that trend.

The survival of the armadillo #MonicaDuffy

Recently I ran a blog about a case where the attorney disciplinary committee of the New York State Supreme Court, Appellate Division Third Judicial Department opposed, and the 3rd Department court denied, a motion by a suspended attorney Gaspar Castillo who asked the court, through a motion, whether 21 certain activities, most of them not appearing in the court decision, which were not unauthorized practice of law (UPL) to individuals who never had a law license, will be UPL to him, Gaspar Castillo, a suspended attorney.

I promised my readers to file a FOIL request to verify which activities were secretly recognized by the 3rd Department as UPL - for some people, but not for others.

Of course, the 3rd Department does not have the legislative power in regards to what constitutes a criminal offense in New York.

Of course, what constitute the practice of law in New York, is not defined by statute, which means, no notice is given to individuals as to a regulated activity, and, thus, such activity may not be regulated as a constitutional due process point - to prevent arbitrary enforcement on a case-by-case ad hoc, bill-of-attainder basis.

Of course, what constitutes UPL is also not defined by statute other than a prohibition to "practice" whatever it is the practice of law is in New York without a license to do that.

I did file that FOIL request.

First, I have read advisory opinions of the Committee on Open Government and found there an advisory opinion stating that:

• if there was a case prosecuted by a public prosecutor in a public court case - (and a motion by an already disciplined attorney is public record, Judiciary Law 90(10));
• court pleadings in such case that the prosecutor's office has in custody, are subject to Freedom of Information Law.

With that in mind I filed a FOIL request with the prosecuting office in Gaspar Castillo's case - the 3rd Department Grievance Committee.

My further interaction with various officials regarding the FOIL request reminded me of a fairy tale by Rudyard Kipling called "The Beginning of the Armadillos".

In that story, a Mother Jaguar teaches her son the Painted Jaguar how to hunt, specifically how to hunt tortoises and hedgehogs, and how to distinguish between the two.

"She said to him ever so many times, graciously waving her tail, 'My son, when you find a Hedgehog you must drop him into the water and then he will uncoil, and when you catch a Tortoise you must scoop him out of his shell with your paw.' And so that was all right, Best Beloved."

Of course, those to be hunted, overheard the teachings and decide to confuse the baby jaguar and escape with their lives.

And confuse they did.  After a thorough confusing session, like that:

"'Now attend to me,' said Painted Jaguar, 'because this is very important. My mother said that when I meet a Hedgehog I am to drop him into the water and then he will uncoil, and when I meet a Tortoise I am to scoop him out of his shell with my paw. Now which of you is Hedgehog and which is Tortoise? because, to save my spots, I can't tell.'

'Are you sure of what your Mummy told you?' said Stickly-Prickly Hedgehog. 'Are you quite sure? Perhaps she said that when you uncoil a Tortoise you must shell him out of the water with a scoop, and when you paw a Hedgehog you must drop him on the shell.'

'Are you sure of what your Mummy told you?' said Slow-and-Solid Tortoise. 'Are you quite sure? Perhaps she said that when you water a Hedgehog you must drop him into your paw, and when you meet a Tortoise you must shell him till he uncoils.'

'I don't think it was at all like that,' said Painted Jaguar, but he felt a little puzzled; 'but, please, say it again more distinctly.'

'When you scoop water with your paw you uncoil it with a Hedgehog,' said Stickly-Prickly. 'Remember that, because it's important.'

'But,' said the Tortoise, 'when you paw your meat you drop it into a Tortoise with a scoop. Why can't you understand?'"

the baby Painted Jaguar finally said:

'You are making my spots ache'.

That's exactly the state of confusion that a person gets in trying to figure out the mess attorney disciplinary authorities created in designation who is who in the disciplinary process.

Here is the response I've got from Monica Duffy, Chief Attorney of the Attorney Grievance Committee of the 3rd Department (in addition to being a prosecutor and, as she claimed, part of the judiciary, she was also part of a legislative committee on attorney discipline in 2015 - that would make anybody's spots ache), which was attached to her e-mail to me:

Imagine that you are FOILing a District Attorney's office, and the response the District Attorney gives you comes from the court on the District Attorney's behalf.

That's an immediate ground to move to disqualify BOTH the District Attorney AND the court - under the court-advocate rule.

Courts and prosecutors (advocates) MAY NOT, by the latest constitutional precedent, Williams v Pennsylvania, act as one.

Yet, in attorney disciplinary proceedings in New York that happens all the time.

The disciplinary prosecutors:

1) oppose motions to dismiss disciplinary proceedings as commenced and handled by prosecutors who are part of the court, but

2) prosecutors claim they are part of the court for purposes of access to records

I filed an administrative appeal where I said, specifically, this:

Duffy cannot deny she acted as a prosecutor in Gaspar Castillo's case - she is listed as "Petitioner" (party to the disciplinary proceeding) on the court's decision in that case.

I then pointed out that the records are not sealed, it is an open court case (since the clerk readily offered me the records under Judiciary Law 255 for the higher rates set under that statute, Judiciary Law 255, while I was asking for records under a different statute (FOIL), from a different agency (executive, prosecutorial branch), and was asking for scanned copies for free).

Three days ago, I received a letter from an attorney representing New York State Court Administration, while I specifically addressed my administrative appeal under FOIL to the Chairman of the 3rd Department Attorney Grievance Committee, as the law requires me to do, and only that individual was authorized to author decisions on that administrative appeal.

I have sent a reply to Shawn Kerby pointing out to her that she has no authority whatsoever to author decisions on administrative appeals of denials of FOIL requests, and that I consider the administrative appeal sent to the Chairman of AGC pending until I receive a decision from him.

Let's remember what the 9th Circuit recently said in its decision about Donald Trump's executive order when Donald Trump's attorneys argued that the matter is moot because Donald Trump's attorneys already announced that the order does not apply to lawful permanent residents - the 9th Circuit said that attorneys do not have authority to make such decisions and to change the President's executive order.

Same here, Shawn Kerby does not have authority to issue decisions on administrative appeals.

I will notify the Committee on Open Government about my standoff with the 3rd Department Attorney Grievance Committee, sought to be protected by the 3rd Department court and by the New York State Court Administration and claimed to be "part of the court".

Because, if the 3rd Department Committee is "part of the court", so that FOIL requests to the Committee as a prosecutor must be treated as Judiciary Law 255 requests to the court, all attorney disciplinary proceedings in New York are void under Williams v Pennsylvania, under the accuser-adjudicator rule.

It is also very interesting how the 4th Department contributed to the mess.

The 4th Department already tried to pull the same kind of trick back in 2014 when I filed a FOIL request for the time-sheets of disciplinary prosecutor Mary Gasparini when she asked for an adjournment of a certain date in a disciplinary case because she was "teaching a CLE course" - during taxpayer-paid work hours.

At that time, in a letter marked CONFIDENTIAL - in answer to my PUBLIC FOIL request - the 4th Department attorney disciplinary committee claimed that it is part of the judiciary, and thus not subject to FOIL requests.


Yet, at the very same time, the very same disciplinary committee was opposing my cross-motion to dismiss disciplinary proceedings on constitutional grounds because the court and the prosecutor was ONE.

Of course, after I was suspended in November of 2015, in June of 2016, the U.S. Supreme Court ruled that a court cannot act at the same time as an accuser and adjudicator, and that decisions produced by such courts are void - meaning, that ALL attorney disciplinary decisions by New York courts where disciplinary prosecutors are part of the court, were rendered void by that decision.

Of course, the U.S. Supreme Court would not apply its own just-created precedent, and several others - as a matter of "discretion" (see, enforcement of the U.S. Constitution that all judges in this country are sworn to uphold, is nowadays "discretionary").

The 4th Department, by the way, finally relented and DID give me the time-sheets of prosecutor Mary Gasparini.

The 3rd Department did not relent, and, after I have filed an administrative appeal for constructive denial of my FOIL request by:

1) transferring it from the executive branch (prosecutor's office) to
2) court (judiciary branch);
3) "deeming" that I have filed a Judiciary Law 255 to the court (judicial branch) instead of what I actually did, a FOIL request to the prosecutor's office, an executive branch; and
4) applying higher fees, meant for Judiciary Law 255 and not for FOIL - where records are supposed to be provided for free to my e-mail address since the Grievance Committee, I am sure, has or has access to high-speed scanners which would scan as fast as they would copy (the standard of providing copies of scanned records for free), and
5) by having an attorney representing the New York State Court Administration acting as counsel for the Chairman of the Attorney Disciplinary Committee who has the exclusive, non-delegable authority to decide administrative appeals for denial of FOIL requests.

What the "honorable" legal and judicial profession does not seem to get through their honorable heads though is that by pretending they have institutional split personality disorder and playing a game of "I am a prosecutor to prosecute, but I am a judge for FOIL and immunity purposes, if sued in federal court" (judicial immunity derived from being "an arm of the court" is consistently used by New York attorney disciplinary committees to have civil rights lawsuits dismissed without review) - playing such games with the public does not increase respect to the game-players.

The Tortoise and the Hedgehog further confused the baby Painted Jaguar by blending into the Armadillos - so that they cannot be scooped out of their shell and would not need to uncurl when thrown into the water.

I know one other substance that does not sink when thrown into the water - and that's what the "blended" regulation of the legal profession by prosecutors who are also judges has turned into.

The #MaleChauvinistJudgeConradHafen is banned from the bench and "agreed" to "public censure" - for handcuffing a public defender for making a constitutional argument, and for several other cases. But, unabated bashing of female litigants and attorneys in the courtroom continues

I've run a blog last year about a male chauvinist judge Conrad Hafen of Nevada who has handcuffed a female public defender for making a constitutional argument in court on behalf of her indigent client.

The judge was then voted out of office and is now, reportedly, banned from ever be a judge in the future.

But, other judges are taking up the torch from Conrad Hafen.

There is still North Carolina judge Peter Knight who publicly reprimanded a woman for breastfeeding in the courtroom.

There is still Judge G. Todd Baugh of Montana who reportedly blamed the child victim of rape for committing suicide, and who is only going to be "censured", but remains on the bench.

There is still the California judge Aaron Persky who was re-elected, running unopposed, even though, as a sexist pig that he is, he has given only a slap on the wrist to a "golden kid", a Stanford University "athlete" Brock Turner, after the latter had sex with an unconscious woman right in the street.

Judge Persky was not disciplined - because he "did nothing wrong", and, moreover, a bunch of more elite kids, Stanford Law graduates, raised their voices - no, not in support of the victim, but in support of Judge Persky, the protector of the criminal.

Yet, I oppose fighting just for "women's rights". 

What is needed is to eliminate the hurdles to resolve urgent human rights issues in this country - remove procedural barriers to civil rights actions in federal courts, remove the fear grip of the judiciary upon attorneys making them squawk in support of judges who feed them, instead of in support of victims of judicial misconduct.

Until that happens - "women's marches" won't help.

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?