Intimidation of lawyers to not represent unpopular clients now affects President's attorney?

There have been interesting reports, from the point of view of independence of legal representation, in the context of legal representation of President Trump.

Many things have been inadvertently exposed in the legal profession and the judiciary with the election of Donald Trump.

For example:

• federal courts can now defy the U.S. Constitution each judge is sworn to uphold by disregarding the text of the U.S. Constitution and the statute and by not only filibustering federal immigration laws, but ordering the President to obey such unlawful filibustering - and the apparent corruption in such cases goes as high as to the U.S. Supreme Court;
• committing a federal felony of harboring illegal aliens has become heralded and encouraged by state attorneys general (also sworn to protect and uphold both federal and state statutory law, as well as the U.S. Constitution and powers received under it) as some kind of heroism;
• U.S. Senators incite the public against the President by asking them what is their opinion of the President while discussing unrelated topics - like legislative debates of a statute in federal legislature, which the president cannot control:

(by the way, the link leads to Gillibrand's re-election/ fundraising campaign site).

It is suddenly "in vogue" for judges to block rules of attorney discipline based on frivolous lawsuits of "in vogue" people - even if such rules are identical to the rules the same judges maintain in their own courts.

And, finally, recently the President's attorney was intimidated with disciplinary complaints in DC and NY because he allegedly gave advice to White House employees who he did not represent.

Of course, many prosecutors and judges do just the same, "advising" litigants and defendants left and right, as to which criminal defendants (that the prosecutors and judges in question do not like) not to choose.

But, nobody ever considers that a problem.

Disciplinary complaints against Marc Kasowitz appear to be clearly political - because now it has been reported that representation of the President whom the legal profession is filibustering in droves because, apparently, he upset the apple cart of seats already distributed by Clinton - at a hefty price to the "donors" - puts the entire law firm of the President's attorney "at crossroads".

Now, why is that?

Why should representation of a particular client subject an attorney to ostracism?  Aren't all people in the U.S. equal under the law?

Aren't all people entitled to legal counsel and defense?

Is not the legal profession "honorable"?

Is not attorney regulation and discipline exist only to protect consumers from attorneys who are dishonest or incompetent - which Marc Kasowitz is obviously neither?

At least, nobody tried to do anything to him until he started to do the unthinkable - represent the President of the United States.

So, now hints are heavily dropped that the law firm will be boycotted, and the "lead rainmaker" Marc Kasowitz will be "out of the picture" because of representation of the President?

Again - why is that?

Federal Judge Margo Brodie strikes at an indigent civil rights litigant - again

I recently wrote a blog about a federal #judgeMargoBrodie, a favorite of Senator Schumer, who dismissed, without disclosure of her conflict of interest (she represented New York City, the defendant in the action, in the past), a civil rights case of an indigent taxi driver because, as the judge arrogantly stated, a "state law procedure" was available for the driver - while 42 U.S.C. 1983, the Civil Rights Act, gives civil rights plaintiffs the right to choose federal court as their forum of choice, and gives a federal judge no authority whatsoever to force upon a civil rights plaintiff the choice of state court to bring his civil rights action.

Yet another case where Judge Brodie screwed an indigent civil rights plaintiff of her day in court was reported in June of 2017.

In the case Hennsler v DEC decided this month, Judge Brodie had outdone herself in incompetence and arrogant abuse of power against he poor.

An indigent woman asked DEC to approve building a residence on her inherited property in order to generate income to feed her two children.

DEC denied the request.

The woman sued for a constitutional violation.

Judge Brodie tossed out the lawsuit because she found that:

1. the woman should have pled more facts (before discovery) indicating how her constitutional rights were violated, while all records related to violations were in possession of DEC, and while Federal Rules of Civil Procedure require notice pleading and not factual pleading - which the judge has no authority to change;
2. DEC has "sovereign immunity secured by the 11th Amendment, while, of course,
1. 11th Amendment has nothing to do with sovereign immunity - as the U.S. Supreme Court has recognized 18 years ago, of which Judge Brodie is seemingly unaware;
2. 11th Amendment, by its text, does not bar lawsuits of citizens of a state against their own state, and the text of the constitutional amendment controls over any incorrect interpretation of that text;
3. New York specifically waived sovereign immunity in 1925 through the Court of Claims Act.
3. The plaintiff had available to her a "process" of contesting the denial of building permit before the DEC - thus amending the Civil Rights Act and imposing forum choice and exhaustion of administrative remedies requirement upon the plaintiff, for which the judge had no Article III constitutional authority.

It appears that abuse of power against the poor is becoming Judge Brodie's penchant.

New York Court system found 3 million dollars for summer retreats - oops, "seminars" - for judges, to teach them how to give people their "day in court"

Ok, so New York state has an ever expanding "justice gap" where majority of New Yorkers cannot afford an attorney.

For that reason, New York invents various alternatives to attorneys (like "court navigators", "Legal Hand" and the like), while refusing to abolish attorney regulation that causes the justice gap in the first place.

And, recently, New York's very Democratic Governor Andrew Cuomo vetoed bipartisan bicamerally approved legislation for additional funding of criminal defense.

Yet, at the same time New York State raised salaries to judges - dramatically so, last year, while one of the reasons for raising such salaries was to reimburse the judges for their trouble of having to deal with indigent pro se defendants.

And now, New York State Unified Court system, in a completely shameless "gesture", found 3 million dollars (!!!) to fund "summer seminars" for its judges.

The 3 million dollars were suddenly found after these same seminars were discontinued for 8 years (under Chief Judge Lippman) because of budget constraints.

There are no budget constraints under Chief Judge DiFiore, the one who yelled at reporters of her corruption threatening them that her husband has personal numbers of all U.S. Supreme Court Justices.

So, the shameless "initiative" to yank judges off their "crushing caseloads" in order to lavish themselves in a Hudson Valley hotel for 4 days - to be taught how to manage those same "crushing caseloads" and give people "their day in court".

Of course, neither raising salaries for judges, not taking time out of their super-busy (allegedly) schedule to wine and dine them and teach them how to manage that schedule to work miracles like Jesus Christ and feeding 5,000 people with 5 loaves of bread, will not stretch the hours or help a situation where there are more cases than the existing number of judges can ETHICALLY handle, giving all litigants as much opportunity to be heard, as is constitutionally required.

There is no way around expanding court systems and simply having more judges to handle "crushing caseloads".  3 mln of taxpayer dollars spent on "summer seminars" could fund salaries of 15 new judges, significantly relieving the caseload.

Instead, DiFiore's court system chose to pour taxpayer money down the drain and teach judges how to cut their time short to create an illusion that people had "their day in court" - by having a rushed minute in court without proper representation before a frustrated and yelling judge, case finished.

All of that to pursue "excellence".

So, now New York judges will be entitled not only to their nearly $200,000 salaries, but to additional vacation time paid by taxpayers, to be spent at luxury resorts in order to be "educated" - how to be more professional, competent and ethical.

And this feast in time of plague is, of course, done, at taxpayers' expense, to further DiFiore's "Excellence Initiative".

New York taxpayers should have no doubt where their money is going and why people are fleeing the State of New York.

Occupational licensing and the government as a con artist, or the myth of professional regulation as deterrent of self-serving professional misconduct

My common topic on this blog is occupational regulation (including attorney regulation) and conceptual inconsistencies in such regulation by the government.

Regulation of all licensed/regulated professions is declared to be done for purposes of consumer protection.

Yet, various prohibitions on regulation very often do little to protect consumers, if not outright hurt consumers, by restricting competition while providing no quality protection.

One of such prohibitions is the so-called prohibition on "mixed practice".

For example, a lawyer cannot have a joint firm with an accountant - even if it is a tax lawyer, and even if an accountant may know certain aspect of, obviously, accounting, better than a lawyer, and a consumer may benefit from such a joint practice - from its versatility and, likely, lower prices.

Also, in many states statutory laws are introduced (obviously lobbied by the already-entrenched professional elites) to prohibit "mixed services" in the medical profession, too.

One of such a prohibition has recently resulted in a multimillion verdict against a New York attorney whose offense was that he taught chiropractors how to open businesses with doctors employed or on the board of directors, while the sole ownership of the firm belonged to a chiropractor, not a doctor.

Of course, what difference would it make to a consumer other than good?

A consumer coming to a chiropractor who also employs a doctor, wins from versatility of practice and lower prices.

Not so - says the New Jersey legislature (lobbied by doctors, obviously) and now the New Jersey Supreme Court, which has a self-serving interest to uphold such a scheme as a legislator of regulation for attorneys, and of similar "mixed service" prohibitions for attorneys.

The legislative purpose of the prohibition, as the court explains, is that a chiropractor, as the sole owner and employer of a doctor, cannot be allowed to influence medical decisions - that would constitute insurance fraud per se.

The decision of the New Jersey Supreme Court, which came out after long years of litigation on May 4, 2017, may very well be a retaliative knee-jerk reaction of the court against a New York attorney, simply because he was a New York attorney, for the simple reason that New York declared its right to discriminate against New Jersey attorneys (who may live closer to Manhattan than the majority of New York-residing attorneys), and the U.S. Supreme Court refused to hear a lawsuit challenging constitutionality of that discrimination.  On April 17, 2017, by the way, 17 days before the New Jersey Supreme Court retaliated against a New York State attorney.

This exchange of slaps, obviously, did not help consumers.

New York consumers of legal services, where the justice gap is a re-iterating lamentation by the NYS Court system, are only hurt by discriminatory laws against out-of-state attorneys, reducing the number of providers.

Similarly, New Jersey consumers of chiropractor and medical services are only hurt when chiropractors are prohibited to hire willing doctors to work in their offices.

Moreover, the New Jersey Supreme Court missed the obvious 1st Amendment implications where an attorney, on a lawsuit of an insurance company no less, is ordered to pay for the alleged fraudulent content of lectures about business structure aimed to provide better, cheaper and more versatile services by willing licensed providers to willing competent consumers of such services.

When this whole country is in uproar about who was elected as President and what is going to happen with healthcare, this case, brought by an insurance company, somehow fell through the cracks and is overlooked, yet, it has a drastic impact on the end prices and quality and scope of services for consumers - and, as to prices, both paid by insurance and out-of-pocket.

Yet, the whole prosecution, from the standpoint of the declared purpose of occupational regulation by the government in order to protect consumers, makes absolutely no sense, and, more, exposes the sham of occupational licensing as lobbying privileges for privileged professions.

First of all, nowhere in the court decision is there any proof that such schemes hurt consumers and lead to providing substandard services.

The whole statutory scheme of insurance fraud through "mixed services", or "doctor in a box", as it is often called, are based on a presumption - that a chiropractor, a person with a "lesser license" and training than a doctor, will improperly influence a doctor in his employ.

The lawsuit involves THREE licensed occupations:

1. lawyers;
2. chiropractors; and
3. medical doctors.

All of these professions are regulated by the government in order to protect consumers.

All of these professions have their own ethical codes and disciplinary procedures.

All of ethical codes prohibit unethical conduct.

All of ethical codes prohibit to act outside of the licensed professional's competency.

Thus, the PRESUMPTION that a licensed chiropractor will necessarily:

1. act outside of his competence in influencing medical decisions of a doctor, and
2. will actually influence a licensed medical doctor who will violate his own ethical rules in order to cave to a chiropractor who is his employer -

defies the whole need for licensing regulations.

If individual licensed doctors are presumed (by the insurance fraud statute) to readily cave to influence by AN employer (no matter, a chiropractor or not), what difference does it make, what license, if any, that employer has?

Is it better that an individual medical doctor is FINANCIALLY influenced in his MEDICAL decisions by another doctor?  By a whole bunch of medical doctor - a hospital board?

Because, if the law PRESUMES that doctors will be easily sways by those who pay them in their medical decisions, in violation of their licenses, we do not need to license doctors, because such licensing is useless and only raise the cost of medical services, which is already sky-high and unaffordable to many Americans.

But, the law does so presume.

Same as it presumes that a lawyer may not engage in a "mixed practice" with an accountant, for example, for the same reason that it will be then presumed that the lawyer will violate his ethical rules and provide services not in accordance with his INDIVIDUAL licensing obligations, but looking only at the bottom line. 

And so will do the certified accountant - who is also a member of a profession regulated by the government, and is also governed by his own individual ethical rules.

As it often happens, the desire of the government to deliver a quick slap to a "sister state" - or for any other political reason - reveals more than the government wanted to.

New survival tricks of law schools expose the sham of attorney regulation - a new suggestion, from a law school dean, to defy ABA authority to certify law schools: the end of attorney licensing is coming from money-hungry law schools?

I wrote today a blog about a new trick a law school professor from Charlotte Law School that faces yanking of its license in August unless it proves its financial stability to teach its remaining 100 students to graduation - to allow law schools to be owned, straight out owned, by law firms.

Graduation from ABA-approved law schools is, in all states of the U.S., a pre-requisite to obtaining a license to practice law.

Licensing the practice of law is declared to be in order to protect consumers, and all rules pertaining to licensing, including educational requirements of lawyers, should be governed by that declared goal.

In other words, mandated education of lawyers must be necessary to protect consumers.

Yet, a law professor openly claimed, apparently, that he deliberately DOES NOT teach about deficiencies of regulation of the legal profession, in order, allegedly, for law students not to use such deficiencies as loopholes, and not to act unethically.  Which says a lot about law ethics professors' trust in the integrity of the legal profession.  Imagine - you, as a member of the public, should not be taught, as a matter of public policy, about deficiencies in criminal law (which you are presumed to know anyway, same as law students are presumed to know attorney regulatory law anyway, under the principle that ignorance of the law is not a defense for breaking it), because if you know of such deficiencies, you will immediately go out and start committing crimes?

And, a law professor openly claimed, apparently, that regulation of the practice of law (by judges, which amounts, in the professor's view, to "self-regulation" - implying that judges are treating lawyers more favorably than another branch of the government would) is just a smoke screen to prevent the "real regulation" of lawyers by the government.

Now yet another law educator, an associate dean at Faulkner University's Thomas Goode Jones School of Law Allen Mendenhall, went so far as to claiming that the American Bar Association as an accrediting institution "stifles legal education" - his exact words.

Associate Dean Mendenhall explains that ABA is a non-profit organization (with foreign capital now, I might add) that has been founded, and evolved, as an equivalent of a professional guild.

It is improper to begin with to charge a professional corporation with foreign capital to regulate constitutional access to justice in a huge country to begin with - where professional interests of lawyers, providers of legal services and members of the ABA:

1. the narrowest scope of service,
2. with the least innovation and effort,
3. at the highest price possible, and
4. while restricting competition

are at stark conflict with interests of consumers to have:

1. the most versatile services;
2. with the best innovation available
3. at the lowest price - which is achievable only by the
4. widest possible competition among providers of legal services, so that consumers could choose for themselves.

That is even more so when, as Associate Dean Mendenhall now acknowledges, the ABA (whose accreditation to his law school he did not question until the accreditation started to hurt enrollment and finances of the school) has a history of quashing competition, and especially quashing competition from immigrants, indigents and minorities.

In other words, Associate Dean Mendenhall acknowledges, with references to reputable sources, that ABA started out as a professional anticompetitive racist organization.

The problem though is that Associate Dean mentions ABA's racism not in connection with failing to protect consumers (the declared reason for attorney regulation that mandatory ABA-accredited law education is part of), but as a claim to defy the ABA accreditation so that law schools could lower the bar in order to have minority students pass the bar easier.

That is, of course, a politically correct thing to say - even though such claims must be offensive and even insulting to well-performing minority students who, upon graduation, would be presumed to have been given lower standards in order to receive their diplomas.

For example, New York state already cancelled a literacy test to future teachers - claiming higher failure rates of that test by minorities.

Which, of course, defies the purpose of such tests - to ensure quality of education for service providers in order to protect consumers.

In the legal profession, claims of California law school deans blaming the rigor of the bar examination on higher failing rates by students, and the claim of Associate Dean Mendenhall that ABA certification of law schools and required minimum curriculum and number of credit hours predominantly hurts minority students.

That may well be, because minority law students may still be from less economically advantaged, or, to put it bluntly, from poorer parents, and, unlike children of rich-in-generations white attorneys and judges, they would have a harder time to stay in school for 3 years, and to pay off student loans in the future.

But, it is very obvious that the test score should not be lowered (as law school deans demand) or canceled altogether (as New York did by canceling the literacy test for future teachers) simply because more people started to fail it.

Because lowering the educational bar in a regulated occupation defies the declared purpose of licensing that occupation altogether - protection of consumers.

Unfortunately, Associate Dean Mendenhall, while pointing out the example of two prominent schools of journalism to defy what he calls a "similar authority", an accreditation council - and obviously urges law schools to now defy ABA approval of law schools - makes no attempt to even review how canceling ABA approval of law schools will affect quality of services for consumers.

Because, if regulation of education as the starting point of providing government protection of the level of legal services to customers, is not needed, regulation itself is not needed.

 But, Associate Dean Mendenhall did not go that far.  He is afraid to do that - he acknowledged that he was afraid to publish even the self-serving piece about defying the ABA certification for the sake of survival of his own law school, and job.

But, self-serving as it is, it is obvious that the legal profession (and the BUSINESS of legal education) is governed not by the profession's alleged honor, and not by the declared goal of regulation - protection of the consumer, but by down-to-earth financial considerations.

And, for survival of his job, law schools may just as well defy the ABA - and, undermine and end regulation of the legal profession as it exists.

Who would think the end of attorney licensing would be coming from money-hungry law schools...

The prohibition of child marriage in New York - 17-year olds can lawfully have sex, but cannot marry?

New York Governor Andrew Cuomo just announced, with much fanfare, that he had signed a bill to end child marriage in New York.

Now the age of consent to marriage is 18 only, marriages of minors under the age of 17 are prohibited, and between 17 and 18 are done only based on changed procedure of obtaining parental and judicial consent.

The legislation, the way it was passed, creates bizarre problems though.

In New York, the age of consent to have sex is 17.

And, minors in New York under the age of 17 can be charged with a sex crime and prosecuted by adults - and even the recent bill also signed by Cuomo with much fanfare, that raised criminal responsibility for non-violent crimes up to 18 years of age - did not change that.

Moreover, even under the current age of criminal responsibility for violent crimes - 14 years old - minors as young as 8 can be charged for a sex crime through a juvenile delinquency proceeding.

I remember that in a criminal case I represented, a #JudgeJohnFLambert, assigned to Delaware County Court) considered against a criminal defendant, over my objection, the alleged "sexual offense" committed by a sex offender at the age of 6 (!) - with no proof of it whatsoever, simply on a hearsay allegation of probation department.

In fact, Delaware County was proud of treating "sex offenders" that it kept in foster care - which means they were minors, likely under the age of consent to have sex.  Since the treatment was experimental, and Delaware County did not provide to me, up to this day, on my FOIL requests, any records that a proper formal procedure was followed to secure such experimental treatment for minors, such "treatment" was unlawful experimentation on minors.

So, let's reiterate what is the situation with sex and marriage in regards to minors in New York:

1) a minor as young as 6 years of age can be considered a "sex offender" for purposes of future calculation of a sex offender risk as an adult - while being 11 years under the state's age of consent to sex, meaning that any sexual acts that such a child engages in are PRESUMED BY LAW to be involuntary;

2) a minor as young as 8 can be charged with a sex crime through a juvenile delinquency proceeding - while being 9 years under the age of consent, meaning that any sexual acts that such a child engages in are PRESUMED BY LAW to be involuntary;
moreover, there is a possibility that such a child, as the self-report of the former Delaware County Attorney Porter Kirkwood indicated, is then forcibly "treated" as a "sex offender" - which includes manipulations with his erection patterns, thus "treatment" in itself constitutes unlawful experimentation on human subjects and sexual child abuse;

3) a minor as young as 14 can be charged and convicted as an adult for a criminal sexual offense - while, once again, being under the age of consent, and while all of his acts charged against him as a crime, are presumed to be involuntary under the state law;

4) the age of consent to have sex is 17;

5) but, the age to consent to marriage is now 18?


So, a 14-year-old can understand what he is doing enough to be charged with a FELONY RAPE AS AN ADULT, but does not have enough understanding to marry if he sires a child on another teenager?

New York needs to bring consistency into its sex offender laws.

If 18 is the age of majority, it has to be the age of majority for ALL PURPOSES, including for criminal liability for violent crimes.

If sex with a minor is statutory rape, it should be statutory rape with a minor under the age of 18, not 17.

If sex with a minor is statutory rape, a minor cannot be charged with a sex crime - either in juvenile delinquency proceeding, or in a criminal proceeding, nor can alleged sexual "misbehavior" of a minor be used against him in criminal or civil proceeding when he or she becomes an adult - because under the law, there is no such thing as sexual mis-behavior of a minor, sexual acts of minors are not VOLUNTARY under the statutory law.

As the bill exists now, it makes no sense.

Not only it is not accompanied by raising the age of criminal responsibility and prohibition to charge or prosecute minors for sex crimes.

It also infringes on constitutional rights of minors to marry, based on the current age of consent to have sex in New York at the age of 17.

The right to marry is a basic human right, and a constitutional right in the U.S.

While the state can regulate such rights to ensure health and safety of its residents, regulating the way New York did - allowing minors, by its criminal laws, to have sex at 17, but disallowing 17-year-olds to enter into marriage without consent of parents or the court at the age of consent, makes no sense to me.

Is the gender of the judge's sex partner a new qualification for office - or is it a distracting trick from the unseemly speed of how a judge's death investigation was hushed up?

A "first openly gay judge" was quickly appointed and no less quickly confirmed in New York for its highest court - New York State Court of Appeals.

See him here, sitting when a woman is standing next to him, clapping for him.  But, I guess, while who the judge has sex with is the new qualification for office in the New York judicial system, manners aren't.

Judge Feldman was appointed not only quickly, but too quickly - in fact, 2.5 months passed after the death of Judge Abdas-Salam whose body was found in the Hudson river, and investigation into her death closed less than a month after her death.

Does Cuomo think that appointing a gay man will somehow cover up the unseemly speed of how the investigation into a potential murder of a high-ranking judge was hushed up?