Prosecutors' challenge to the New York State Commission for prosecutorial conduct: shooting themselves, and the attorney regulation, in the foot - in more ways than one. Part I.

I am starting to review the challenge by the New York State District Attorney Association to the recently enacted law creating a Commission on Prosecutorial Conduct - which was created because of overwhelming public pressure and concern over a record number of exonerations/wrongful convictions in the State of New York, many of them due to prosecutorial misconduct, and because of the apparent lack of accountability of prosecutors who have caused, and continue to cause, wrongful convictions in New York State.

The Commission for Prosecutorial Conduct was supposed to start working on January 1, 2019.

I did express my initial opinion regarding the prospects of this new body for delivering justice and accountability against prosecutors who have caused wrongful convictions in the past and to prevent wrongful convictions in the present and the future.

Nonetheless, the DA's State Association got upset even with the toothless tiger which the Commission appears to be - based on the fact that it was copied from the Commission for Judicial Conduct which, as anybody who has sent complaints to that commission, together with evidence of judicial misconduct, knows - is only a glorified shredder, ridden with irreconcilable conflicts of interest, lacking the necessary budget to do its work properly and refusing to even conduct investigations of the vast majority of complaints, even if complaints are based on irrefutable documentary evidence.

When people get upset, they often make mistakes and reveal what they do not really want to reveal about their work.

In this respect, the New York State DA Association's lawsuit (verified complaint), available, in full, here, is a dead giveaway of what is the system of accountability of judges, prosecutors and attorneys in general - while pointing out certain flaws of law governing creation and operation of the Commission, the DA Associations attorneys, James Walden and Jacob Gardener, of Walden, Mach & Haran LLP, did their clients a huge disservice, practically shooting them in the foot with their "constitutional" arguments.

Note that the DA's Association is currently headed by the Albany County DA David Soares, one of just three prosecutors disciplined by the judiciary over the last 40 years in the State of New York, the other two are women (even though the majority of DAs are men), two out of three are punished for criticizing the regulator (the judiciary) and the last one was disciplined when the legislation regarding creation of the Commission against Prosecutorial Conduct was well under way - a sort of a PR-move by courts indicating that no, they do perform their "duties" in disciplining prosecutors, so a separate Commission for Prosecutorial Conduct is not necessary, even though New York has a record number of wrongful convictions and exonerations (while the judiciary is in no hurry to conduct investigations into prosecutors who prosecuted cases that resulted in wrongful convictions).

The lawsuit of the New York State District Attorneys' Association is a 28-page document packed with inconsistencies so bad and so damning for the system of attorney regulation as a whole that I will have to go step by step and publish my analysis in portions, addressing the document issue-by-issue.

This portion is going to be dedicated to attorneys who represent the New York State DA's Association in its lawsuit against the State of New York and its Legislature.

As I mentioned above, the lawsuit is signed by two people - the first namesake partner of Walden, Macht & Haran LLP, a supposedly 100-year-old law firm from New York City boasting experience in the following areas of litigation:

Note that among the areas of law where the law firm boasts experience it does not list the following areas:

• constitutional law;
• civil rights;
• occupational regulation/licensing;
• attorney regulation/licensing.

That is a significant flaw, since the entire complaint signed by two lawyers from this law firm is dedicated exclusively to these 4 areas of law.

So, here is the team of two attorneys, young and old, associate and the namesake partner of the firm, representing the prosecutors' association of the State of New York attempting to prevent formation and operation of the Commission for Prosecutorial Conduct authorized, through bipartisan and popular support, by the New York State Legislature, both chambers, and signed into law by the New York State Governor.

I will start with the young one, who appears to have, among other things, a significant conflict of interest in representing prosecutors in this particular case.

Jacob Gardener, an associate of the firm

 The attorney advertisement on his professional webpage announces that ""[h]e has also worked with the New York State Justice Task Force to prevent wrongful convictions and has assisted with the filing of a civil rights class action on behalf of indigent criminal defendants deprived of their right to counsel."

The Commission on Prosecutorial Conduct was created BECUASE there were so many wrongful convictions in New York, specifically, to investigate what were the causes of those wrongful convictions.


As part of that Task Force, he may have been privy, as an INVESTIGATOR, to information regarding members of the DA's New York State Association, their role in causing wrongful convictions.

Here is what the Task Force in which Jacob Gardener participated stated on its official webpage as its mission:

So - here is the first "hero", attorney Jacob Gardener representing the DA's Association of the State of New York in its lawsuit seeking to enjoin the State of New York from establishing the Commission for Prosecutorial Conduct, after having worked for the New York State Task Force having a mission to "identify recurring patterns and practicing" leading to wrongful convictions.

Of course, the Task Force is led by Chief Judge DiFiore, who, upon my personal knowledge, was diligently drumming up wrongful convictions by employing certain very much identifiable "patterns and practices" of which I have written before and testified (in writing, since oral testimony was not allowed) to the New York State Legislature, trying to prevent her appointment as the Chief Judge of the State.

So, the Task Force, headed by one of the causes of wrongful convictions in New York, is a stillborn venture.

By the way, DiFiore is given certain authorities in discipline and/or removal of prosecutors and Jacob Gardener is now trying to prevent DiFiore from having, a nice tangle, isn't it?

It gets nicer though.

But - here is the smiley face of Jacob Gardener.

Associate 212 335 2965 jgardener@wmhlaw.com

I repeated his self-advertising in a bigger font, for the

readers' convenience.

Quote

---------

Jake is an experienced litigator who represents corporations and 

individuals in criminal, civil, and regulatory matters.  He has 

extensive experience managing internal and government 

investigations, complex commercial disputes, and appeals. 

He has helped lead internal investigations into high-stakes 

matters involving alleged violations of the FCPA and securities 

laws.  Jake has also successfully handled numerous civil cases I

n a variety of areas, including commercial contract disputes, 

mortgage-backed securities litigation, shareholder derivative actions, bankruptcy, and employment law.  He has significant in-court experience, including briefing and

 arguing several criminal and civil appeals.

Jake maintains an active pro bono practice.  He has represented 

on appeal and retrial indigent defendants convicted of murder, 

helping to secure the release of one client who had been wrongfully 

sentenced to death.  He has also worked with the New York State 

Justice Task Force to prevent wrongful convictions and has assisted 

with the filing of a civil rights class action on behalf of indigent 

criminal defendants deprived of their right to counsel.

Before joining Walden Macht & Haran, Jake practiced law at a 

preeminent global law firm.  He also clerked for 

the Hon. Dennis Jacobs of the U.S. Court of Appeals for the Second 

Circuit and the Hon. Naomi Reice Buchwald of the U.S. District 

Court for the Southern District of New York.  In addition, 

Jake served for several years as a New York City firefighter, 

assigned to Ladder 43 in East Harlem.

Jake’s academic scholarship has been published in the Journal of 

Criminal Law and Criminology and the Boston University 

Journal of Science and Technology Law.

Jake graduated from Yale Law School, where he was a 

senior editor of the Yale Law and Policy Review.  He earned 

a B.A. in Political Science from Stanford University, 

where he graduated with honors and distinction and was 

elected to Phi Beta Kappa.

Education
Yale Law School, J.D. (2011)

Stanford University, B.A. (2003)

Bar Admissions
New York

One Battery Park Plaza, New York, NY 10004 |
212 335 2030 | info@wmhlaw.com |
disclaimer | attorney advertising

Unquote
-----------


Here is his attorney registration.

Do not expect him, in the near or far future, to be disciplined - 
either for his apparent conflict of interest in this case, or for his glaringly frivolous, 
mutually exclusive arguments, of which I will point them out in future blogs,
one by one.

He was "on the Task Force" with DiFiore - he is protected.

The same way as the namesake partner of the firm, the co-counsel for the
DA's Association in this case, James Walden.

Partner 212 335 2031 jwalden@wmhlaw.com  

https://www.wmhlaw.com/person/jim-walden/

Here is what James Walden tells you about himself in his self-advertising:

Quote
=======

A veteran litigator, Jim has served clients in high-profile and complex matters throughout his private-practice career, establishing an enviable record of success. In criminal, civil, and regulatory matters, Jim has consistently developed thoughtful, multi-tiered strategies to advance his clients’ goals.

Jim has led more than 20 complex internal investigations, including high-stakes international matters involving allegations of cartel activity or bribery. Jim’s cross-border internal investigations include work in Brazil, China, England, France, Germany, Italy, Japan, Mexico, Poland, South Africa, and South Korea. Jim has conducted investigations for global financial services firms, broker-dealers, retail banks, credit card companies, big box retailers, technology companies, one of the world’s largest car companies, and several industrial manufacturers. Time and again, based on his comprehensive fact-development work and advocacy, Jim has helped companies avoid or mitigate financial penalties and address compliance failures.

Jim has also represented many corporate executives and other individuals in federal, state, and local criminal matters. To date, almost every one of Jim’s clients has avoided jail, and many have avoided indictment altogether. Jim’s extensive client list has included CEOs, CFOs, COOs, and General Counsels, as well as celebrities, sports figures and other high-net-worth individuals. He has had equal success representing law enforcement officers, civil servants, brokers, traders, and managers. Whether a client is from Wall Street or Main Street, Jim has used his creativity and boundless enthusiasm to protect his clients against unfair and unfounded allegations.

Jim has also served as lead counsel in many important civil cases. Because of his tough litigation style and a track record of resolving even hotly contested and complex matters, Jim has been called upon in a wide range of matters, including civil-fraud cases, land-use and zoning matters, 1983 actions, contract disputes, whistleblower cases, employment litigation, historic preservation matters, and disputes over joint-ventures, partnerships, and other investment structures.

Jim also regularly represents clients in civil matters against governmental agencies. Most recently, for example, Jim represented a publicly traded technology company in a highly publicized dispute with the City of New York over its work on the 911 system, ultimately resolving the dispute on favorable terms for his client. Jim also filed a civil suit in state court after a city agency launched a demonstrably overreaching investigation against one of his technology clients, resulting in a state court decision quashing the investigation. Even when governmental agencies sue one another, one side often turns to Jim. After Jim successfully sued the Department of Homeless Services on behalf of the New York City Comptroller for illegal contracting practices, the Comptroller hired Jim to defend a prevailing wage determination in a fight with a local union, and Jim and his team again prevailed.

Prior to entering private practice in 2002, Jim served as an Assistant U.S. Attorney in the Eastern District of New York for almost nine years, where he successfully tried many felony cases, including complex racketeering trials, and won various commendations, including the “Director’s Award for Superior Performance as an Assistant U.S. Attorney” and the Federal Law Enforcement Foundation’s “Prosecutor of the Year.” Among his many multi-agency initiatives, Jim’s work lead to the first effective assault against the Bonanno Crime Family in twenty years, which continues to stir interest in the mainstream media.

Jim previously served as a law clerk for the Honorable Anthony J. Scirica, U.S. Judge, Court of Appeals, Third Circuit. He is a magna cum laude graduate of Temple University School of Law, where he served as a law review editor and received the Israel Packel Memorial Award for the highest GPA in his graduating class. He graduated, cum laude, from Hamilton College, with a major in History and a minor in Computer Science.

Education
Temple University School of Law, J.D. (1991)
Hamilton College, B.A. (1988)

Bar Admissions
New York

Unquote
=======

James Walden is positioning himself as the ultimate problem solver, fixer.

And, lo and behold, it is possible that James Walden or his powerful clients are, indeed, pulling some strings behind the scenes - since the presiding judge in this case, the Acting Supreme Court Justice of Albany County David Weinstein, recently "urged" the parties to delay litigation in order to allow the Legislature to think how to amend (gut?) the statute regarding creation of the Commission.

And, such a stipulation (agreement) is possible.

If that stipulation happens, those who ardently hoped for the creation of the Commission and for the Commission to start its operation next month will be deceived in their hopes and will receive a slap in the face.

Those in power will always come to a "deal", and those wronged by those in power can always expect to be wronged some more.


Wrongful convictions can just as well accumulate in New York - prosecutorial lobby is just too strong and has too many "ears" for any solution, no matter how toothless in its inception, to be allowed to exist.

So, as ProPublica wrote in 2013, nobody is willing in New York to prosecute prosecutors.  Most likely, this state of events will continue.

The expected stipulation is supposed to be reached holding litigation as a threat, even though the lawsuit is glaringly frivolous and must be dismissed with sanctions and attorney fees AGAINST the DA's Association, so it is no threat at all, and the Commission must proceed.

The lawsuit is especially interesting to me as researcher of occupational licensing and attorney licensing/regulation in particular that, in order to defend their own status quo - being immune from civil liability on condition of attorney discipline, and being not subject to attorney discipline as a matter of state policy in New York, so not being accountable for misconduct leading to wrongful convictions in any shape or form - when threatened, prosecutors' attorneys raised arguments that are, practically, arguing unconstitutionality of attorney regulation, the way it exists in New York, in its entirety.

As I promised, I will analyze this lovely lawsuit shortly, issue by issue, in separate articles.

Stay tuned.

The U.S. Supreme Court's decision in Fleck v Wetch, cowardly as it is, spells out the doom for judicial power over attorney regulation and over public access to court

It has been a long time coming, but it did come.

In June of 2018, the U.S. Supreme Court has decided a case Janus v Association of State, County and Municipal Employees, giving, on 1st Amendment grounds, to teachers (and all non-unionized members of other professions) freedom not to be forced to pay union fees to unions who use that money in their political activities that non-union members may not support.

Parallel to that, a case was pending in the U.S. Supreme Court from North Dakota where a lawyer challenged mandatory bar fees on the same grounds as teachers did in Janus.

The U.S. Supreme Court did not decide that case at the same time as Janus.

Instead, it first broke up for a 3-months' summer vacation, and then held 8 (!) conferences 

discussing the case and the numerous amicus briefs from all walks and ilks before arriving at a decision.

The decision was somewhat cowardly - without a full opinion - but what would one expect from a body deciding a case of, practically, its own power over attorneys, an explosive issue?

Instead of a decision with a full opinion, the U.S. Supreme Court simply granted the petition for certiorari, reversed the decision of the lower court, the U.S. Court of Appeals for the 8th Circuit, affirming the district court decision that denied attorney Arnold Fletch's challenge as to unconstitutionality of the mandatory bar fees under the 1st Amendment.

Note that the decision was relying not on the 1st Amendment directly, but on U.S. Supreme Court's interpretations of it through various cases - even though the U.S. Supreme Court does not have the power of the Supreme Law of the Land, as per the Supremacy Clause, Article VI Section 2 of the U.S. Constitution.

And, the decision made by the U.S. Supreme Court on this case - without an opinion, and an incomplete one, at that, just a remand to the 8th Circuit,

was not directly based on the 1st Amendment - but, again, on the court's precedent, which does not have the power of the Supreme Law of the Land, under the U.S. Constitution, Article 6 Section 2.

Why did the U.S. Supreme Court did what it did?

Why, if it took the pain of granting certiorari, it did not issue a full-fledged opinion on the case, but instead cast in down to the 8th Circuit.

Ah, but there is a not-so-subtle game played here.

While TROs by puny district courts - against Trump only - are suddenly deemed "the law of the land" applicable to all jurisdictions, not just jurisdictions of the U.S. District Courts where such decisions are spawned - courts do know about limitations of their authority within their territorial jurisdictions.

And, while granting certiorari, the U.S. Supreme Court (judges) did not want to release lawyers from slavery to finance mandatory bars where, according to one of the U.S. Supreme Court's previous decisions, it was perfectly ok to use the funds forced out of lawyers by the threat of disbarment (and starvation) for any "regulation-related activity" - such as, for lobbying the legislation to raise salaries of judges and provide law clerks/slaves (or more law clerks/slaves) to judges.  Self-interest of the judiciary in that particular financial blackmail is self-evident.

So, what the U.S. Supreme Court did is - it dumped the case back to the 8th Circuit which covered just 7 states out of 50,

and not the most valuable/lucrative ones at that for the bar - not California and not Florida (New York is not a mandatory bar jurisdiction).

Note that the last amicus that broke the camel's back was from the Pacific Legal Foundation, a decision to remand was made by the U.S. Supreme Court the same day the motion to file an amicus brief was granted to the Pacific Legal Foundation - which said, among other things, the following:

"The State Bar continues to pursue political ends, works to ensure that objectors get the smallest possible deduction after jumping through the greatest number of hoops to claim it, and engages in financial shenanigans that constantly draw the attention - and ire- of the state auditor.  Many attorneys have abundant reasons to resent subsidizing and associating with the government's mandatory bar association".

But, it is not just the "government's bar association".  It is actually a "court's corporation", a corporation of the judge's own profession incorporated by judges into the body of their own court, into the body of the government - no other profession in the United States was given that particular favor by the regulator.

We do not have corporations of taxi drivers incorporated into the government, into the Taxi Medallion Commissions or Mayor's offices, do we?

Association of regulated hair dressers, jockeys, landscape designers, fortune tellers incorporated into the Governors' offices, the tops of the government branches regulating them.

But, somehow, lawyers' corporations (to which regulating judges belong, regulating themselves, their own licenses to practice law) ended up incorporated right into the top of the judicial branch in every state having a mandatory bar.

How that happened is a long and sordid story not taught in law schools - and for a good reason.

As much as law schools try to do two diametrically opposite things - sharpen the minds of future young lawyers while at the same time attempting to dumb them down as to the true aspects of regulation of their own livelihood, if facts are presented bluntly to the young law students, regulation of attorneys - crumbling already, as the case Fletch v Wheck amply demonstrates - will not be sustainable for a much longer time.

There are too many inconsistencies in that particular regulation in the law, too many glaring conflicts with the U.S. Constitution that the thus-regulated profession is supposed to uphold and protect.

For that reason, it is better not to "stir the pot", not to call a spade and spade and to let the sleeping dogs lie.

With the only difference that the dogs are not longer sleeping and are contesting the status quo - both from within (attorneys) and from without (cast out attorneys and members of the public, consumers of attorney services), and are doing it more and more vigorously.

So, the U.S. Supreme Court - acknowledging the writing on the wall by actually accepting the petition for certiorari and reversing the decision of the 8th Circuit - still "was not ready" to "make the law", as it freely does for the entire country, as it did in Janus, or, back in 2015, in the area of same sex marriage.

No doubt, in response to its own largest lobbyists, the most powerful mandatory bars - California as one of them - the court delayed the disintegration of mandatory bars and the undermining of the power of the top courts in the respective states by directly jeopardizing only 7 of them, and the least significant ones.  The sacrificial lambs were only the top state courts of the states of:




Remember, Fletch is not Trump, and, in his case, the decision of even a federal appellate court will not have a country-wide application, as are the temporary decisions of lower district courts against Trump.

But, cowardly as the decision is, it is an admission, in and of itself, that what the way the "self-presumed-honorable" profession that also gave themselves a gift of immunity from corruption, as part of its presumed honor (judges) regulates its broader base and source, lawyers, is far from honorable and is based entirely on financial compulsion.

The supposedly neutral government regulator subverted regulators of members of a learned profession whose duty is to get access to court for the American public, including to challenge the government (including the regulator itself) if the government violates people's rights - is using its power not to do its job, but 

• to secure financial resources from the regulated group for lobbying its own interests;
• to keep the regulated group scared of the loss of their right to earn a living, in exchange of a monopoly to practice what the regulator cannot define ("the practice of law") - in order to
• sing praises to the regulator; and
• not dare to criticize the regulator - not dare to inform the voters, in fact, of the unfitness of the regulator to be elected or appointed to its super-powerful position.

Whatever the delay in time to resolve the matter of attorney monopoly in the United States and the judiciary as its greedy, dishonest, power-hungry and self-serving regulator, there is a saying that you cannot be somewhat pregnant.

You are pregnant or you are not.

Similarly, you cannot somewhat, but not fully admit that "mandatory bars" (corporations of attorneys incorporated into top courts) are violating the 1st Amendment by forcing its members to pay to the regulator for lobbying for the regulator's salary increases and to give the regulator help/slaves (law clerks):

"(2) The State Bar, through its Board of Governors or Executive Committee, has taken a formal

Page 367 U. S. 837

position with respect to a number of questions of legislative policy. These have included such subjects as an increase in the salaries of State Supreme Court justices; making attorneys notaries public; amending the Federal Career Compensation Act to apply to attorneys employed with the Armed Forces the same provisions for special pay and promotion available to members of other professions; improving pay scales of attorneys in state service; court reorganization; extending personal jurisdiction over nonresidents; allowing the recording of unwitnessed conveyances; use of deceased partners' names in firm names; revision of the law governing federal tax liens; law clerks for State Supreme Court justices; curtesy and dower; securities transfers by fiduciaries; jurisdiction of county courts over the administration of inter vivos trusts; special appropriations for research for the State Legislative Council."

The regulator, the judiciary, has been outed, finally, in an official decision, as cowardly, short as limited, as the two lines in the docket of Fleck v Wetch was.

Of course, this case dealt with money.

The U.S. Supreme Court is still afraid to take and honestly review and decide a case of attorneys disciplined for criticism of their regulators - and the U.S. Supreme Court's brothers and colleagues in regulation (the U.S. Supreme Court regulates its own "bar", and by the way, collects its own "bar dues" which God knows how it uses).

The U.S. Supreme Court is still afraid to take and honestly review and decide a case of a challenge of unconstitutionality of regulation of attorneys because WHAT exactly is regulated in regulation of attorneys, what is "the practice of law", the element of a crime "unauthorized practice of law", the subject of regulation and the basis of attorney monopoly in the United States - nobody, including judges, regulators of attorneys, could come up with a clear definition of, which makes the entire regulation an unconstitutional sham.

The U.S. Supreme Court is still afraid, 3 years after it decided North Carolina Board of Dental Examiners v Federal Trade Commission, to take a case of attorney regulation and acknowledge that attorneys are regulated in violation of federal civil and criminal anti-trust laws, as a cartel, overwhelmingly and entirely by "market players", without any "neutral state supervision", and even that "test" is an unlawful lawmaking in violation of Articles I and III of the U.S. Constitution, because there are no "state exceptions" in the text of the Federal Antitrust law, civil and criminal, and no "tests" are necessary to squarely apply that law to the facts of attorney regulation and pronounce the entire regulation scheme as a criminal enterprise, a country-wide, powerful, well-financed organized criminal sindicate calling its members - naturally - honorable, and calling upon its members - naturally - to defend one another in order to escape public scorn and removal from power.

But, Fleck v Wetch, nevertheless, is a significant breach in the armor of court regulation of attorneys, and in the claims of courts that they are honorable in all things, including that regulation, which is in fact a criminal enterprise, a financial and reputational blackmail of the entire profession, and holding the American public hostages by reducing their own choice of their own representatives in their own branch of the government, courts, to those only who would finance lobbying in favor of those courts and who would keep mum about improprieties going on within those courts.

And, that breach of armor - very likely, considering tendencies in the legal market, globalization and robotization of consulting and legal services - may way be the chink in the eggshell that will soon leave the whole nest-egg of judicial power over the attorney and public access to court where it should be, in shambles.

And, it will be long overdue.