Schoolchildren in New York (and all other people), tremble, #AttorneyAlisonCoan is coming for you. How New York criminalized everyday activities to prevent a suspended criminal defense attorney from earning a living

I have written on this blog about how an experienced criminal defense attorney Gaspar Castillo was first wrongly banned from criminal cases in federal court, then suspended in state court, and then asked the court that is regulating his license (New York State Supreme Court Appellate Division Third Judicial Department) to modify his order of suspension in order to allow him to do what individuals never licensed to practice law are routinely doing in New York.

I understand that attorney Castillo may have tried to save money (the filing fee for a motion in the 3rd Department is $45, as compared to the filing fee of $400, nearly 10 times more in federal court) and effort on litigation, and do it "amicably" with the regulators of his license instead of suing them in federal court for constitutionality of attorney regulation system.

Nevertheless, the court rejected his motion, and, while doing it, claimed, following the previous claim of the 2nd Department, supported by the Court of Appeals, that when a disbarred (and now a suspended) attorney does the same things as never-licensed paralegals or legal secretaries, or "law experts" like unlicensed law professors, do - that constitutes the crime of unauthorized practice of law.

I also described my interaction, let's put it this way, with the 3rd Department Grievance Committee that claimed that it is a court for purposes of FOIL requests, contrary to FOIL jurisprudence that allows to obtain from a prosecutor, through FOIL, documents that were filed or about to be filed in court - and that the New York State Court Administration supported the hat-switching of the Attorney Grievance Committee now pretending it is a court, now - a prosecutor.   

Of course, what such hat-switching does is it creates an unconstitutional situation where attorney grievance committees that claim they are part of regulating courts, acts as both a prosecutor and an adjudicator in the same matter, which is specifically prohibited by due process, and a recent U.S. Supreme Court case, Williams v Pennsylvania, which stated:  "A constitutionally intolerable probability of bias exists when the same person serves as both accuser and adjudicator in a case."

But, anyway, I decided to cut through the chase, pay the money they claimed that I owe under the Judiciary Law 255 to the court (while I never made a Judiciary Law 255 request to the court) instead of receive documents for free under FOIL, as I was entitled to - just to see what is in those documents, because the decision in Gaspar Castillo's case mentioned a long list of activities that Gaspar Castillo asked the court to allow him to do, but did not specify that list, only claiming that he wanted to perform the tasks of a paralegl and to practice law.

Here is the list of activities that suspended attorney Gaspar Castillo asked the 3rd Department to allow him to perform and that the 3rd Department refused to allow him to perform claiming that performing ALL of those activities would be, for suspended attorney Gaspar Castillo, unauthorized practice of law in violation of his order of suspension.

Of course, all of the above activities are routinely done in New York by unlicensed individuals without any problem, as attorney Castillo pointed out to the court.

The court faced a formidable task in determining whether activities on the list are, or are not, the practice of law - because, guess what, what constitutes the practice of law, is not defined in New York by any statute (which is a definition of vague laws subject to arbitrary enforcement in violation of due process).

Yet, instead of striking New York attorney regulation long time ago, the U.S. Supreme Court, despite many challenges to that regulation, "exercises discretion" not to touch that messy area and to leave the unconstitutional regulation in place, allowing courts to be creative and to decide on a case-by-case basis what the heck the practice of law and unauthorized practice of law is.

And they do decide, and make definitions simply to suit their whim and desire not to allow a suspended or disbarred attorney to earn money in any way, including in ways that are perfectly permissible to never-licensed individuals.

And, of course, a criminal statute is unconstitutional ON ITS FACE (not to mention "as applied") if it does not say what the heck it prohibits, and says it clearly.

Judiciary Law 478 says only the following (I broke this unintelligible paragraph down into smaller sections with bullet lists, to make it more digestible):

"It shall be unlawful for any natural person to

• practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself or herself in a court of record in this state, or
• to furnish attorneys or counsel or an attorney and counsel to render legal services, or
• to hold himself or herself out to the public as being entitled to practice law as aforesaid, or in any other manner,
• or to assume to be an attorney or counselor-at-law, or
• to assume, use, or advertise the title of lawyer, or attorney and counselor-at-law, or attorney-at-law or counselor-at-law, or attorney, or counselor, or attorney and counselor, or equivalent terms in any language, in such manner as to convey the impression that he or she is a legal practitioner of law or in any manner to advertise that he or she either alone or together with any other persons or person has, owns, conducts or maintains a law office or law and collection office, or office of any kind for the practice of law, without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath.  

Provided, however, that nothing in this section shall be held to apply

(1) to officers of societies for the prevention of cruelty to animals, duly appointed, when exercising the special powers conferred upon such corporations under section fourteen hundred three of the not-for-profit corporation law;  or

(2) to law students who have completed at least two semesters of law school or persons who have graduated from a law school, who have taken the examination for admittance to practice law in the courts of record in the state immediately available after graduation from law school, or the examination immediately available after being notified by the board of law examiners that they failed to pass said exam, and who have not been notified by the board of law examiners that they have failed to pass two such examinations, acting under the supervision of a legal aid organization when such students and persons are acting under a program approved by the appellate division of the supreme court of the department in which the principal office of such organization is located and specifying the extent to which such students and persons may engage in activities otherwise prohibited by this statute;  or

(3) to law students who have completed at least two semesters of law school, or to persons who have graduated from a law school approved pursuant to the rules of the court of appeals for the admission of attorneys and counselors-at-law and who have taken the examination for admission to practice as an attorney and counselor-at-law immediately available after graduation from law school or the examination immediately available after being notified by the board of law examiners that they failed to pass said exam, and who have not been notified by the board of law examiners that they have failed to pass two such examinations, when such students or persons are acting under the supervision of the state or a subdivision thereof or of any officer or agency of the state or a subdivision thereof, pursuant to a program approved by the appellate division of the supreme court of the department within which such activities are taking place and specifying the extent to which they may engage in activities otherwise prohibited by this statute and those powers of the supervising governmental entity or officer in connection with which they may engage in such activities;  or

(4) an attorney and counselor-at-law or the equivalent who is admitted to the bar in another state, territory, district or foreign country and who has been admitted to practice pro hac vice in the state of New York within the limitations prescribed in the rules of the court of appeals;  or

(5) an attorney licensed as a legal consultant under rules adopted by the court of appeals pursuant to subdivision six of section fifty-three of this chapter and rendering legal services in the state within limitations prescribed in such rules."

Note that Judiciary Law 478 does not define what constitutes

• "legal services", or
• "practice of law".

Note that Judiciary Law 478 only prohibits appearance on behalf of other persons "in a court of record", which is not ALL courts operating in the State of New York.

I wrote last summer about New York Court of Appeals' disgraceful decision regarding appeals from convictions in courts "not of record", justice courts.

So, "courts not of record" apparently have downsides and upsides.

The downside is that it has judges who do not have ANY educational requirements at all and can be elementary school dropouts - but they will be deciding your fate if you get into that court.

And, the downside, according to People v Smith, is that "affidavit of errors" of what happened in court trumps the actual audio record - according to New York Court of Appeals, I described how fair and constitutional that is.

The upside is that, apparently, a litigant in that court can be represented by anybody, not necessarily by a licensed attorney - because prohibition for the practice of law and appearing in court on behalf of others is applicable, through Judiciary Law 478, only to "courts of record", and, according to the highest court in the state of New York, justice courts are not "courts of record".

So, by law, suspended and disbarred attorneys, and never-licensed individuals, according to New York State statutory law, may represent clients in justice courts.

Of course, Judiciary Law 90 contradicts Judiciary Law 478 because, where Judiciary Law 478 does not require a law license to practice in front of courts "not of record", and courts "of record" are designated by New York State Constitution Article VI paragraph 1(a):

1. b. The court of appeals,
2. the supreme court including
3. the appellate divisions thereof, the court of claims,
4. the county court,
5. the surrogate's court,
6. the family court,
7. the courts or court of civil and criminal jurisdiction of the city of New York, and
8. such other courts as the legislature may determine

shall be courts of record", and by Judiciary Law 2:

"Courts of record. Each of the following courts of the state is a court of record: 1. The court for the trial of impeachments.
2. A court on the judiciary.
3. The court of appeals.
4. The appellate division of the supreme court in each department.
5. The supreme court.
6. The court of claims.
7. A county court in each county, except the counties of New York, Bronx, Kings, Queens and Richmond.
8. The family court.
9. A surrogate's court in each county.
10. Each city court outside the city of New York.
11. The district court in each county or portion thereof in which such court shall be established.
12. The civil court of the city of New York and the criminal court of the city of New York.
All courts other than those specified in this section are courts not of record."

New York State Court of Appeals confirmed in People v Smith as of last year that criminal justice courts are NOT courts of record.

And, of course, a person whose license is taken, should return to his pre-licensing status and be allowed to do what the law allowed him to do before he obtained a law license.

That is the law.

Right?

Not so fast, because when did such a trifle as the law deter a determined disciplinary prosecutor and the court bent on rubber-stamping anything a disciplinary prosecutor (appointed by the court) asks for - especially to quash the livelihood of an independent criminal defense attorney that the same court suspended?

Disciplinary prosecutor from the 3rd Department Attorney Grievance Committee #AlisonCoan

fought tooth and claw against allowing suspended attorney Gaspar Castillo to do what is usually done by staff of law firms, insurance firms, by language editors, transcribers, business owners, and by ordinary people, including schoolchildren in their everyday lives (like prepare and write reports, summarize texts, do factual investigations about different things, proofread and edit texts for spelling and grammar errors).

The luminary of the 3rd Department Attorney Grievance Committee Alison Coan claimed that all of the activities in the list constitute unauthorized practice of law.

Moreover, Alison Coan display an interesting level of disbelief in the honor of ANY licensed attorneys, claiming that, first, Gaspar Castillo will likely be BETTER QUALIFIED - as an attorney - than ANY of his potential employer who would employ him as a paralegal or legal secretary.

That is an interesting recognition.

So, the 3rd Department prosecutor acknowledged in a public pleading that it has deprived the public of THE MOST qualified criminal defense attorney in the state of New York?

But that's not all.

Alison Coan further asserted in her pleadings that ANY licensed attorney who would employ Gaspar Castillo as a paralegal, legal secretary, fact-checker, proof-reader, editor or investigator, will necessarily succumb to the temptation to commit A CRIME of solicitation, aiding and abetting unauthorized practice of law for the licensed attorney's personal gain.

And, that it will be impossible to catch that little criminal teamwork, so it is better to prohibit Gaspar Castillo to engage in activities that FOR HIM ALONE and for members of his class will be unauthorized practice of law.

By claiming that otherwise lawful activities will be UPL for Gaspar Castillo because he is

1. a knowledgeable suspended attorney; and
2. a suspended attorney.

By the way, Alison Coan claimed that Gaspar Castillo is a "non-attorney", and no different than a disbarred attorney, and the 3rd Department agreed - while I wonder how, if I am, as a suspended attorney, a "non-attorney", why New York State Court Administration then solicits me to pay a licensing fee, as it did this year, which is only an obligation of licensed attorneys? - see my registration status showing "next registration" in March of 2017,

Attorney Castillo also has a "next registration" date - somehow, in the past:

Compare with the record of a disbarred attorney Sheldon Silver who does not have a "next registration" date because he is disbarred:

So, Gaspar Castillo was correct stating that New York State was treating him as an attorney.

Yet, the 3rd Department court agreed with the 3rd Department prosecutor that Gaspar Castillo is a "non-attorney" - even though the State of New York continues to list his "next registration" date and, no doubt, continues to solicit from him licensing fees, which the State of New York does not do with disbarred attorneys.

There is also one interesting discrepancy - a difference between Judiciary Law 478 which does not prohibit unlicensed representation in courts "not of record" and Judiciary Law 90(2) which requires appellate divisions to insert into each order of suspension or disbarment the following prohibitions:

"a. The appearance as an attorney or counsellor-at-law before any court, judge, justice, board, commission or other public authority.

b. The giving to another of an opinion as to the law or its application, or of any advice in relation thereto."

Note that Judiciary Law 478

1. does not define what the practice of law is, or what constitute provision of "legal services"; and
2. that Judiciary Law 90(2) prohibits only appearance as "an attorney or counsellor-at-law", but not as a representative "before any court, judge, justice, board, commission or other public authority", while Judiciary Law 478 prohibits representing others without a law license only before "courts of record", leaving out:
1. courts not of record;
2. boards;
3. commissions, and "other public authorities".

Note also that neither Judiciary Law 478 nor Judiciary Law 90(2) prohibits appearing for another in front of any PRIVATE authority - like in private mediation or arbitration.

Yet, I am sure that if I, for example, would appear in front of a private mediator or arbitrator, or an administrative board or commission, or in front of a school on behalf of a client, I will be immediately charged for unauthorized practice of law.

So, the law was murky in the first place, before attorney Castillo asked his 25-point question.

1. What constituted the practice of law or legal services was not clearly defined, so the government, constitutionally, had no right to regulate what it could not clearly define;
2. Judiciary Law 478 did not prohibit any of the activities on the 25-point list;
3. Judiciary Law 90(2) and the order of suspension based on it also did not prohibit any of the activities on the 25-point list.
4. Courts in New York are not allowed to legislate from the bench and CHANGE a criminal statute (Judiciary Law 478) by grafting on it what conveniently came to mind in order to deprive one person or a class of persons of any reasonable possibility to earn a living.

There is no such thing as a crime "for some people, and not for others", for those the prosecutor and the court dislikes as opposed to those the prosecutor and the court favor.

Apparently, for Alison Coan that is too much to understand, especially since she has no experience in criminal law, according to her own profile in the alumni group of the Albany Law School:

So, Alison Coan does not have either criminal or constitutional law experience, while trying to plow into both, clumsily, but successfully because the 3rd Department will endorse anything, no matter how sloppy, crazy and incompetent, if it kills a livelihood of an attorney it targeted for destruction, lawfully or unlawfully, does not matter.

I posted the full text of the unauthorized practice of law statute, Judiciary Law 478, above.

That text does not include ANY of the 25 activities attorney Gaspar Castillo was asking about, as unauthorized practice of law.

Thus, a court of law may not "include" into that statute activities that are not plainly and clearly included there.

And, if even a super-qualified attorney has to ask the court what an unauthorized practice statute means and how does it correlate with his order of suspension, that means only one thing - that the statute is unconstitutionally vague, and that the only authority (and sworn duty) the 3rd Department court had was to declare that statute as unconstitutionally vague and strike attorney regulation within its territory.

But, doing so would have detracted from the 3rd Department court's own power as a regulator.  So, the 3rd Department preferred not to do its duty in order to preserve its power.  Courts are not political entities, right?

Instead of doing its duty, 3rd Department court agreed with Alison Coan, denying the motion to suspended attorney Gaspar Castillo, and including into the UPL laws within its jurisdiction the 25 above listed activities.

Of course, it did not list all of these activities in the actual decision, and of course, I had to pay money to get a copy of Gaspar Castillo's motion, but the fact remains:

• A motion was made in the precedent-setting 3rd Department asking to define Judiciary Law 478 as to 25 activities, whether they constitute unauthorized practice of law;
• The list of 25 activities is a public record;
• The 3rd Department answered the question in the affirmative, that these 25 activities DO constitute unauthorized practice of law if practiced without a law license - and it does not matter whether the person practicing without a law license is a suspended or disbarred attorney (who lost his law license) or whether that person never had a law license in the first place - Judiciary Law 478 makes no such distinction, and neither can the court.

So, since criminal law - and unauthorized practice of law, Judiciary Law 478, is a criminal statute - must apply evenly to all, and since the 3rd Department is a precedent-setting court in a large jurisdiction

("There are 28 counties in the three judicial districts making up the Third Department, which stretches from the Canadian border in the north to the lower Catskills in the south and from the Vermont and Massachusetts borders in the east to the Finger Lakes in the west.  The Third Department includes just over half of New York's land area and contains about one seventh of the State's population),

people residing in the 3rd Department now need to go through a law school and law licensing to:

Let's remember what those activities, prohibited by the 3rd Department as the crime of unauthorized practice of law, actually mean - I color-coded in yellow paralegal activities (not licensed in New York) and in green any other activities which are also not licensed in New York:

1. organizing and compiling legal documents – secretarial work;
2. organizing and putting together trial/hearing notebooks – secretarial work;
3. Fill out/fill in legal documents – secretarial work;
4. Perform legal research on issues as directed – paralegal work, not regulated in New York, and regularly and routinely done in New York without a law license;
5. Compile and organize relevant case law and statutes – paralegal work;
6. Draft omnibus motions and other pleadings for review – paralegal work, see also that Judge Kevin Dowd of Chenango County Supreme Court considered it proper for an unlicensed paralegal to draft pleadings WITHOUT attorney supervision, and allowed the attorney to charge an attorney fee for that work, and dismissed the challenge to that activity as unauthorized practice of law as meritless and "mind-boggling";
7. Draft briefs on legal issues as directed – paralegal work;
8. Compile and put together records on appeal – secretarial work (putting together documents following a provided checklist);
9. File documents - secretarial work;
10. Prepare and sign affidavits of filing (service) – secretarial and process server work (that a disbarred attorney was targeted for UPL for acting as a process server, which in New York does not require a law license, and only requires to be over 18 years of age, was challenged and rejected by the U.S. District Court for the Northern District of New York - where the same 3rd Department that contended for Gaspar Castillo that it is UPL, claimed to the federal court that it will never deem such activity UPL);
11. Serve documents and prepare and sign affidavits – process server work;
12. Review CDs of police interrogations and make notes of times and words spoken as directed – secretarial work;
13. Proof read and edit legal documents – language editor/secretarial work, as proof-reading and editing may address only spelling, grammar and stylistics;
14. Proof read and edit contracts – language editor work, same as above;
15. Summarize testimony in hearing or trial transcripts –  secretarial work, a school English class assignment, summarizing contents of a text;
16. Summarize witness statements – same as above;
17. Prepare statements of sale and other closing documents – secretarial or paralegal work; in New York, such documents are routinely prepared by paralegals and secretaries;
18. Draft deed, mortgage, satisfaction, and other real estate documents for review – paralegal or even secretarial work, real estate documents are routinely drafted in New York by paralegals and legal secretaries and not attorneys;
19. Review insurance company documents for compliance with underwriting and coverage requirements – same as what a secretary in insurance broker’s office would do;
20. Review insurance claims for underwriting and coverage requirements – the work of unlicensed personnel of an insurance company and not a lawyer;
21. Process insurance company claim documents – work of unlicensed personnel, including secretarial personnel, of an insurance company;
22. Perform investigative duties or work in an investigative capacity – journalistic work; private investigators are licensed in New York, but are not required to have a law degree or a law license; unlicensed individuals routinely do factual investigations for themselves or others without the necessity of being licensed as investigators, and especially as attorneys;  I am an investigative journalist, I guess I am committing a crime with every blog I publish;
23. Prepare and write reports – journalistic work, anybody can and do prepare and write reports, it does not necessarily have to be about the law or legal advice;  people prepare and write reports for their supervisors in all businesses and professions, including in school, starting from elementary school, which does not constitute the practice of law;
24. Review immigration documents – immigration law is federal and not subject to state regulation of attorneys;
25. Prepare immigration documents including petition for legal residency, status, naturalization, applications for work authorization or other legal status in the United States – it is paralegal work and, same as mentioned above, immigration law is federal law not subject to state regulation.

It is easy to see that ALL activities that Gaspar Castillo wanted to engage in and earn money are not the practice of law.

Yet, in their zeal to prohibit Gaspar Castillo to have any income, the 3rd Department and its brainless and incompetent prosecutors made everyday activities into the crime of unauthorized practice of law.

Now if you work as:

1. an investigative journalist;
2. a private investigator;
3. a fact-checker;
4. a secretary in an insurance company, law office or anywhere else;
5. a transcriber from a CD;;
6. as a paralegal;
7. a process server - you must have a law degree for your employment.

Moreover, even outside of any employment, if you "prepare for another":

• a summary of a text;
• a report of ANY kind - which is what people do on a regular basis for their supervisors, relatives, friends, teachers - you are engaging in the crime of unauthorized practice of law?

Crazy?

Yes, it is.

It is a crazy argument by disciplinary prosecutor Alison Coan - which was ACCEPTED and MADE INTO LAW by the 3rd Department Court for 28 counties in New York.

Does it craziness protect consumers?

Not really - Alison Coan acknowledged that Gaspar Castillo actually is an expert in criminal law, so if (theoretically) he gives legal advice, she does not have to worry that the advice will be bad and will hurt the consumer.

No, the point is to block an expert in criminal law, in a state where there is a dearth of good criminal defense attorneys working for the poor, from helping ANYBODY, in any way, even in providing help to other attorneys as a paralegal, secretary, investigator, fact-checker or language editor, filer or process server - what is routinely allowed in New York for anybody else without any license whatsoever.

And that is called, ladies in gentlemen, a classic Bill of Attainder, prohibited by the U.S. Constitution that both Allison Coan and the 3rd Department judges who made this brainless order, were sworn to uphold.

Do they care about the U.S. Constitution?

The answer to this question is painfully obvious.

On the death of yet another "trouble-maker". It is dangerous to address judicial corruption in the United States: a disbarred and detained California attorney Patrick Massud is dead, and the government attorney Massud accused of corruption is claiming a suicide

I wrote previously about the tendency in the U.S. for persecution and prosecution of whistleblowers of official misconduct and corruption.

I reported at least two suspected murders that nobody wants to investigate - of Sunny Sheu in New York who reported judicial corruption (somebody sold a home from under him, and, even when that person was caught and convicted, a judge refused to cancel his eviction, and Sunny Sheu found some information on the judge shortly before his suspicious death that raised questions about the judge's role in the eviction situation and in Sunny Sheu's death), and of Adam Rupeka, a vocal critic of New York police.

Sunny Sheu actually made a video shortly before his death expressing his concern that he will be killed shortly for his investigation of corruption.  Still, nobody is investigating his apparent murder, and it was reported that medical witnesses quickly changed their statements and the body was quickly disposed of.  And, questions whether Sunny Sheu was murdered for investigating judge Joseph Golia remain.

A disbarred and detained California attorney #PatrickMissud,

• detained and awaiting trial for allegedly making "criminal threats" against a judge (he reportedly has sent emails threatening to detonate a bomb near a judge),
• an attorney who reportedly made "frequent insults" against the Chief U.S. Supreme Court Justice John Roberts (of course, in the U.S., any criticism of a judge is perceived by judges as an "insult" requiring retaliation) on his website, and who
• repeatedly sued judges for corruption and repeatedly had his lawsuits denied on the grounds of absolute judicial immunity - which means, courts never reached issues raised by Patrick Missud on the merits and let judges escape responsibility no matter whether they actually acted maliciously and corruptly -

was reported dead in jail by the jail system (Santa Clara County jail) where he was held without bail awaiting trial.

And, of course, it was reported by the jail authorities that he committed suicide.

Yet, it is apparent that there may be more to that story than just a simple solution of a suicide.

As a former intern for New York Prisoners Legal Services, I do know how inmates are battered by prison guards or prison gangs outside of the reach of cameras in retaliation for reporting misconduct against public officials, and then are accused of beating their own torturers and locked up in solitary confinement for years.

In this case, it was reported that "was found early Saturday on the floor of a common area in the men’s wing, according to the Santa Clara County Sheriff’s Office, who added that his injuries were consistent with a fall from the upper level".

And, by the way, it was reported in correctly that Patrick Missud was an "inmate" in a correctional facility.

In fact, he was a detainee, detained before trial and presumed innocent.

In view of his standoff with the judicial system, he should have been placed in protective custody, but apparently, he wasn't, and then he was conveniently found dead to prevent his trial where he could make further statements against judicial corruption.

And this is happening in the blessed state of California, where attorney Dr. Richard Fine was incarcerated for over 14 months for CORRECTLY claiming judicial corruption - that Los Angeles Judges received an addition to their salaries from Los Angeles County of over $50,000 a year while the County appeared in front of those judges.

The State of California finally came up with a "solution" of this "problem":

• it disbarred and incarcerated the 70+ whistleblower Dr. Richard Fine;
• gave retroactive CRIMINAL immunity for corruption to its judges - which should really boost public confidence in the integrity of the California judicial system and judges;

and then

• refused to allow the California State Bar (that disbarred Dr Richard Fine) to collect member dues because of corruption within the California State Bar;
• but, of course, the California State Supreme Court quickly overruled that and gave that lucrative money-making opportunity right back to the corrupt California State Bar.

Makes a lot of sense.

By the way, as another piece of interesting information on the subject of judicial corruption in California that supposedly does not exist (because attorneys are viciously persecuted when they heretically raise the issue of the presumed-honorable with a self-given gift of immunity for corruption judges) - recently, a court clerk was convicted in federal court, on a plea bargain, just 6 months after the start of criminal proceedings, for fixing over a 1000 DWI cases.

The public needs a collective lobotomy to believe that he did that without judges presiding over such cases being on the hook, but even the feds did not dare to touch judges.

Just read the book "Operation Greylord"

written by a then-prosecutor and mole for the FBI who brought about that sting against over 100 judges and lawyers in the Cook County, Chicago, Illinois, for corruption and fixing cases - to see how big that business is and how it works.

There was simply no possibility that such a vast operation was handled just by a court clerk, and did not involve judges.

The plea bargain struck with the court clerk means that there will be no trial, and the local judiciary will be spared the testimony about possible involvement of judges in that same scheme.

There was no hope to strike any plea deals with Patrick Missud who, I am sure, was looking forward to a trial forum to address the issue of judicial corruption.

And, under a U.S. Supreme Court case Dennis v Sparks, even if a judge is covered by absolute immunity for corruption in a civil lawsuit against himself, he can still be called to testify about that corruption.

Patrick Missud could make that happen.

Now he can't.  Because he is conveniently dead.

A person who, for years, asserted issues of corruption in the government, dies in the hands of the government.  And the government claims he committed suicide.  As I said, how convenient.

Looks like silencing of a critic to me.

A couple of Mississippi Supreme Court judges acknowledge that judicial immunity may "embolden" judges to do bad things - but leave the issue "for another day" to address. What self-serving cowards

Here is a recent decision of the Supreme Court of the State of Mississippi in a case of a former court administrator (a female) against a Mississippi judge (a male), the infamous #JudgeJeffreyWeillSr who illegally ordered to jail a public defender for contempt and made unsubstantiated allegations of misconduct against another public defender, Alison Kelly.

And, it was public defender Alison Kelly's motion to recuse that Judge Weill reportedly used to retaliate against one of his own (former) members of staff, his former female court administrator.

 Judge Weill first, reportedly, harassed Karla Watkins Bailey so that she finally left the job, and then cleverly devised a way to defame her and ruin her reputation - by putting what she says were defamatory claims against her into a footnote of his decision in response to a motion to recuse from 65 criminal cases filed by the local public defender (a female).

The former court administrator sued, but, unfortunately, not for harassment on the job - as it was done in New York, Morin v Tormey, where the case was litigated in federal court for 4.5 years and finally resulted in a $600,000 settlement for the clerk (from taxpayer's pockets, unfortunately, not from the pockets of Chief Administrative Judge of the 5th Judicial District James C. Tormey who viciously retaliated against the woman after she refused to do his bidding and spy upon the judicial candidate for the "opposing" party - remember, judges are claimed not to be political animals, right).

Instead, the clerk sued for defamatory statements contained in the footnote.

While the trial court - let's give that courageous court a credit - rejected the judge's claim of absolute judicial immunity, the top court of the State of Mississippi, the court that "regulates" attorney licenses, by the way and that should be the most honorable of courts, reversed and tossed the complaint on the grounds of absolute judicial immunity.

The court has held that the claims of irrelevancy of the defamatory claims, that the former employee had nothing to do with the motion to recuse, do not take away the protection of absolute judicial immunity.

One judge wisely did not participate in this shameful decision, and two judges filed a short and cowardly concurrence where they agreed to toss the lawsuit against their brother, but "expressed concern" about what their own decision will do in the future, whether it will embolden judges to commit malicious acts in the future knowing they are immune (they know that since Stump v Sparkman, a plurality opinion, by the way, was decided back in 1978).

Here is the concurring opinion:

I have just two questions - if these two judges felt so strongly about the decision (and absolute immunity for malicious acts - they avoided to say "and corrupt", which is what the judicial immunity was self-given by the U.S. Supreme Court justices to themselves and to all of their brothers and sisters in courts of "general jurisdiction" back in 1978), why did they CONCUR, not DISSENT?

Surely, a strong two-judge dissent would have made a potential path to the U.S. Supreme Court smoother for the defamed woman.

Second, isn't that lack of courage attributable to the fact that judges were reluctant to take away the judicial immunity protection (illegally obtained in the first place, since all judges take a constitutional oath of office, and nothing in the U.S. Constitution allows anybody, including the U.S. Supreme Court, to allow other people to violate the U.S. Constitution or engage in malicious or corrupt acts on the bench with immunity) FROM THEMSELVES?

But that, of course, is a rhetorical question.

Once again on what is exactly attorney regulation (and any other occupational regulation) - protection of the public or protection of attorneys from competition? And are courts regulating attorneys acting as administrative agencies, after all?

Often, truth about games government plays and lies it tells the public comes out when competing interests of various economic groups clash and when, in the zeal to promote one "cause", the government overlooks that it exposes its own lie regarding another important issue.

For example, the U.S. Congress has enacted a statute, 8 U.S. Code § 1621 called "Aliens who are not qualified aliens or nonimmigrants ineligible for State and local public benefits".

That statute includes into public benefits professional licenses:

"(c) “State or local public benefit” defined

(1) Except as provided in paragraphs (2) and (3), for purposes of this subchapter the term “State or local public benefit” means—

(A)

any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government".

Now, what would be wrong about that?

What is wrong is that regulations of professions is claimed to the public to be necessary for protection of the CONSUMERS, of the PUBLIC, not of the licensed professionals.

If that is true, a license is a restriction, not a "public benefit" for the licensed professionals.

What is also interesting, specifically in connection with regulation of attorneys is that 8 U.S. 1621(c)(1)(A) talks, as about public benefits, about professional licenses "provided by an agency of a State or local government".

Attorneys are regulated by the judiciary branch that, when I challenged it in federal court pointing out that attorney regulation is an administrative function and attorney disciplinary proceedings are administrative in nature, claimed to the federal court (and the federal court agreed) that such proceedings are judicial in nature.

Yet, the New York State Supreme Court, Appellate Division 2nd Department agreed, on June 3, 2015, with the New York State Attorney General asserting, on behalf of an illegal alien seeking to be admitted to the bar, that a law license is a "public benefit" within the meaning of 8 U.S.C. 1621(c)(1)(A).

New York State Attorney General is representing in New York everybody in town - all three branches of the government, including the prosecutorial, investigative and decision-making side in attorney disciplinary proceedings.

So, the New York State Attorney General was arguing to the 2nd Department reviewing a case of application for admission to the bar to the 2nd Department's attorney disciplinary committee while arguing to both that they are an "agency" within the meaning of a federal statute, and that what they give (law licenses) is a state agency giving out a public benefit to the holder of the law license.

The same New York State Attorney General is arguing to federal courts, repeatedly, that Appellate Divisions and attorney disciplinary committees are not administrative agencies, but are members of the judiciary branch.

Those two arguments are mutually exclusive, and, thus, frivolous and fraudulent.

But, who is going to discipline the New York State Attorney General when he represents all judges in the State of New York, and when he represents all attorney disciplinary investigators and prosecutors in New York who can easily yank law licenses from all judges in federal courts sitting in New York, thus subjecting them to impeachment - while judges are reviewing civil rights actions where New York State Attorney General is opposing such civil rights lawsuits, and is advancing these mutually exclusive, and thus, fraudulent arguments?

Once again, who is going to discipline the New York State Attorney General for making fraudulent arguments to the court while representing regulators of the judges' own law licenses?

Yet, while the New York State Attorney General can continue to lie all he (and his staff) wants to courts in view of their apparently impunity, it is quite apparent that, conceptually, the same law license cannot possibly serve BOTH as a measure of protection of the public, AND as a "public benefit" given by the state to lawyers, from whom the state government is protecting the public by means of that same law license.

Moreover, when the New York State Attorney General acknowledges that a law license is a "public benefit provided by a State agency" in one setting, it is then fraudulent to assert that courts and their attorney disciplinary boards do not operate in attorney regulation as agencies (executive branch), but operate as courts (judiciary branch), in order to obtain benefits for the government that is available to the judicial branch and is not available to the executive branch.  That's another "chameleon" argument by the New York State Attorney General that is inherently incompatible.

Had New York State Attorney General been consistent in its argument that attorney regulation is for protection of the public and that the regulating court is not acting as an agency, but as a court, it would have advanced two arguments in the Matter of Vargas that it did not advance:

1. 8 U.S.C. 1621 is not applicable to attorney regulation because a law license is not a public benefit to the attorney, but is a measure of protection of the public, not attorneys;
2. 8 U.S.C. 1621 is not applicable because the regulator in the proceedings is not a "State agency", but a court.

None of these arguments were advanced, instead, the N.Y.S. Attorney General wholly endorsed both points:

1. that a law license is a public benefit to the attorney and not a measure of protection for the public (because it cannot be both); and
2. that the regulating court that issues and revokes licenses it a "State agency".

I understand that, given the absolute impunity from any discipline or accountability, and the ability to have "independent" federal judges (licensed attorneys regulated by private attorney disciplinary boards sitting in secret) rule in their favor, no matter what the law says - one and the same thing, the law license and regulation, cannot be used to provide benefits to both sides - to protect the consumers from attorneys, and to provide a benefit to the attorney.

As I said, truth sometimes seeps out inadvertently.

The Pennsylvania saga on removing elected public officials through the backdoor dealings of attorney discipline continues

Now, I do not condone public corruption, especially by prosecutors.  At all.

But, what is happening in Pennsylvania is completely bizarre.

While Pennsylvania is suspending, disbarring and denying reinstatement of attorneys left and right for the biggest sin of all - criticizing the judiciary - it is really lenient (usually) on attorneys working for the state and committing misconduct.

For example, Pennsylvania, having no statute of limitations on attorney discipline, still did not disbar attorney Ronald Castille, former Philadelphia DA whose misconduct, and misconduct of his staff (of which he had to be aware) was described in detail in the 2016 U.S. Supreme Court case Williams v Pennsylvania:

• obtaining death penalty by fraud, withholding Brady material and suborning perjury from a prosecution witness;
• getting elected to the bench on the basis of that fraudulent death penalty sentence, and then
• blocking habeas corpus relief for the condemned prisoner as a judge in the same case where Ronald Castille was a prosecutor, and blasting the condemned prisoner's attorneys for trying to defend him.

And, Pennsylvania was not in any hurry to disbar Judge Marc Ciavarella for selling kids, for million-dollar bribes into kiddie prisons.

And, Pennsylvania was in no hurry to suspend the law license of Philadelphia DA Seth Williams, even after he admitted "not reporting" gifts given to him while he was already a public prosecutor.

It only suspended his law license "on agreement" when he was federally indicted for corruption - but remained in office, like Pennsylvania former AG Kathleen Kane did, making a second precedent of a lawyer with a suspended license running a law office.

A lawsuit has now been filed by people with no standing to do that (a defense attorney and Seth Williams' predecessor as a DA) to oust Seth Williams from office.

Yet, Seth Williams is a public official, and the only way he can be ousted is through impeachment.

So, the Pennsylvania saga of playing with law licenses of public officials continues.

Let's see what the court ruling will be on the lawsuit.

I will continue to monitor this bizarre case.

Stay tuned.

Judge's divorces and a brand new format of statutes of limitations on discipline against judges, but not attorneys. A Michigan story.

All states (as I have heard from readers of this blog and based on my own research) claim that there is no statute of limitations on attorney discipline.

The same, of course, should apply to the regulators of attorneys - judges - whose misconduct can and do result in much more dire injuries to the public and to individual parties.

Yet, in the blessed state of Michigan, proposals for new rules have been reportedly introduced imposing a short statute of limitations upon discipline of judges, prohibiting even INVESTIGATIONS of judges past the "statute of limitations".

And that is extraordinary.

Because in all states, statutes of limitations are also "affirmative defenses", to be raised after the investigations are completed and after the charges are already filed - and such a defense may be waived if not timely raised by the charged party.

For judges, the invented new format of statute of limitations is different, not only because it was introduced (while statute of limitations for attorney discipline, imposed by Michigan judges, does not exist), but because it will prohibit even to investigate them past the statute of limitations.

That said, the proposed rule might not (if applied honestly) help #MichiganJudgeTheresaBrennan

to escape investigation of misconduct - because it was not discoverable within the statute of limitations.

The only people privy to that misconduct was the judge, the prosecution witness who kept mum, and the judge's now-estranged husband who was under spousal privilege when he was married, but voluntarily disclosed that the judge (1) had an affair with a prosecution witness during a murder trial;  (2) talked to that prosecution witness during that murder trial.

So, it is important for judges not to divorce their spouses.

They know too much and, if pissed, can reveal it.

And, once again, the Michigan Supreme Court, the one that is regulating lawyers and appears to be regulating its own conduct, too, is considering whether to allow to even investigate complaints filed against judges 3 years after the alleged offense "unless upon a good cause shown".

More incentive for judges in Michigan to be even more secretive in their misconduct than they are now, so that they are protected from discipline completely.

By the way, federal judges invented an even better solution - .they lobbied the U.S. Congress for the Judicial Disability Act, which prohibits discipline of judges completely if misconduct occurred in relation to a court case.

Judge Brennan reportedly had an affair with a prosecution witness and had ex parte communications with her lover during a murder trial.

So, had Judge Brennan been a federal judge, a complaint against her would have been tossed, statute of limitations or no statute of limitations.

Michigan should learn from the best (subverters of law) - the federal judiciary.

U.S. District Court for the Southern District of New York is now making profit on sanctions imposed on lawyers?

On March 30, 2017, 76-year-old U.S. District Judge for the Southern District of New York Victor Marrero

sanctioned lawyers for the use of wrong spacing (24-point instead of double-spacing) to cram more words than was allowed by "court rules" (25 page per brief), and required them to pay a $1,048.09 fine.

Was it proper for lawyers to achieve by stealth what they could do by openly asking the court for permission to exceed the page limit?

No, it was not.

Was it warranting a monetary fine and sanction?

I don't know.

Yet, what I do know that it is wrong to set limits for arguments. 

Some lawsuits have more complex issues than others.

Lawsuits having just one claim require less pages for arguments than lawsuits having more than one claim, and the same court rules require grouping of claims together, for fear of forfeiting the claim on "claim preclusion" doctrine.

If you included all claims, you are at a disadvantage as compared to people who assert just one claim.

You are also at a disadvantage if you have more parties in your lawsuit (either plaintiffs or defendants), because that complicates the matter, and increases the number of claims.

Yet, the page limit for arguments remains the same.

I did not see analysis of those issues in 76-year-old Judge Victor Marrero's order of sanctions:

And, slapping lawyers with monetary sanctions without considering whether they were trying to obtain a fair review of all arguments for their clients, and whether the omission was inadvertent (after all, the pleading could have been done by an associate or a paralegal who did not know the spacing rules), was more characteristic of a cranky elderly and impatient judge who needs to retire and enjoy sunsets on the beach, than of a competent jurist.

Competent jurists do not mete out monetary sanctions that would require measuring the brief with a ruler.  They concentrate on issues of merit of the case in front of them.

It was silly.  And petty.

But it was not only silly, and petty - Judge Victor Marrero forgot himself to such a degree that he ordered the sanctioned lawyers to pay the fine to the clerk of his own court.

Which means - Judge Victor Marrero allowed his own court to profit from his own sanctioning decision, an unconstitutional conflict of interest recognized by the U.S. Supreme Court 90 years ago, before Judge Marrero was even born.

In recognition of this conflict, some New York courts (over the village court level) order sanctions to be paid not to the court clerk, but to a fund outside the court system, to avoid appearance of impropriety.

Apparently, appearance of impropriety was not much of a concern for Judge Victor Marrero.

So, by pointing out that lawyers for a party committed a faux pas by violating a non-sensical court rule about "one-size-fits-all" page limit for arguments on an important issue of a preliminary injunction, at the time when no discovery was made in the case and no issues aired out, the judge, in his persnickety and cranky zeal to have lawyers appearing in front of him observe formalities to the letter, chose to disregard the basic rule of due process - that judges presiding over cases must remain neutral and not create conflicts of interest.

Well, Judge Victor Marrero did, by having his court already, at the beginning of litigation, profit from the fine he imposed upon the lawyer for one of the parties - payable to the court itself.

Judge Victor Marrero should really retire.

And the case should really be transferred to another court - which, let me guess, will not happen.