The Report of New York State Statewide Commission for Attorney Discipline: No Luxury of Time. Why?

At the beginning of this year I ran a blog post called "TL;DR" ("Too Long; Did not Read") describing how courts usually skip over issues in review of cases claiming they are too busy to do their jobs thoroughly.

I recently encountered an anonymous critic on this blog who called himself "Coyote Waits", acted from the bushes, without revealing his identity, in insulting and patronizing manner, made conclusory allegations of incompetence to me, displayed an extremely sensitive male ego that could not withstand being called a sexist bully while he was acting as a sexist bully and who made his conclusions based on "review of my litigation history" - an instant review.

Since review of only one civil rights case may often require several days, and my anonymous critic (a male attorney, as he finally confessed) made his conclusions after allegedly reviewing ALL of my multi-year multi-court multi-case litigation history, I could make conclusions that either he is simply lying, or he is applying the TL;DR method, or both.

Unfortunately, I found the same TL;DR argument in the Report of the NYS Statewide Commission for Attorney Discipline.

Yet, since high-ranking attorneys and judges who commit misconduct usually camouflage that misconduct in top-lofty language and are professionals of such camouflage, they expressed it this way: that the Commission allegedly "did not have the luxury of time" to do its job thoroughly.

It intrigued me, because creation of the Commission was announced in February of 2015, Commission formed in March of 2015, as of June 2015, according to a judicial accountability advocate Elena Sassower, the Commission had no website, no telephone assigned and, likely, did nothing, there were no apparent rules restricting the Commission in the number of hearings it can hold or the number of witnesses it can hear, it was the Commission's decision to hear 8 to 16 witnesses a day instead of more than that, and fuller than 10 minutes a witness.

But, let's go to the report, and a very interesting situation with the so-called "luxury of time" emerges.

Here is what the Commission said in its Report and Recommendations of September 24, 2015:

Well, well, well.

As of February 25, 2015 the U.S. Supreme Court has ruled that the COMPOSITION of the disciplinary committees is a big problem, in fact, a problem so big that operating disciplinary committees the way it is done now - by super-majorities of licensed professionals who are regulating other licensed professionals - is running afoul federal antitrust laws, which are, by the way, both civil and criminal.

So, the main concern of courts and committees since February 25, 2015 should have been, first of all, changing THAT problem, so that the committees are not run as criminal cartels.

That issue was not even touched upon by the Commission.

Instead, the Commission was discussing how to mend what is already broken to the point of criminality, as the U.S. Supreme Court said back in February 25, 2015.

That little omission is just one of the untruths about the "luxury of time".

The Commission made a point of analyzing the "history" of discussions - among attorneys and legal scholars only - of problems with uniformity, efficiency and fairness in New York disciplinary proceedings.

The Commission touched NONE of the multiple lawsuits, many of them successful, where various aspects of attorney disciplinary system in New York was found by various courts simply unconstitutional.

Yet, even when Commission analyzed reports by attorneys' associations, it appeared that the problem was not the lack of the "luxury of time", but the lack of desire to change the status quo in attorneys-regulating-attorneys, for their own benefit, obviously.

Look at the dates when issues that the Commission is currently reviewing were raised - and, once again, we are not even talking about the multiple pleadings where such issues were raised, but which the Chair of the Commission, with a stern and hostile face, refused to admit, refused to review, and fled as soon as the witness who was offering those pleadings, Elena Sassower, was shut up by himself and by the big armed court officer looming over her during the "public" hearing in New York City.

I myself know of four lawsuits that only I or my husband brought, where issues that the Commission was discussing, were raised:

• Neroni v Coccoma (my husband Pro Se), filed in 2013;
• Neroni v Peebles (myself, Pro Se), filed in 2014
• Neroni v Zayas (me as an attorney on behalf of my husband as a client), filed in 2013;
• Peters v Neroni (my removed and then remanded disciplinary case, 2013)

Those same issues appeared in the Report, without attribution to Mr. Neroni or myself (that is called "plagiarism") by members of the Commission who had to read those lawsuits because they were addressed to them and served upon them.

I don't mind so much this little theft of ideas, as I mind dishonesty in the claims that time was a "luxury" and there was no time to thoroughly decide issues raised before the Commission and individual members of the Commission.

Here are the dates from the "history" of attorney discipline in New York, as provided in the Report of the Commission:

Ok, so

• in 1970 the American Bar Association issued a report, "the Clark Report" that was 45 YEARS AGO, raising the issues of lack of "uniformity in disciplinary enforcement throughout the state"

In 1972 (2 years after the "Clark report") New York State Committee on Disciplinary Enforcement (predecessor of this Commission), a "Christ Committee", "submitted a comprehensive report to the Judicial Conference calling for standardized and uniform procedural rules and regulations etc....", the "Christ Report".

Let us note that the "Christ Report" was issued only in response to the ABA report and not in response to any lawsuits filed by attorneys raising issues of lack of uniformity of discipline, and certainly not on New York State's own initiative.  An outside authority must prod New York State government into action to start thinking of how to improve the system - and even then...

Then in 1981, 11 years after the "Clark report" and 9 years after the "Christ Report", Appellate Division 1st Department invited the ABA's Standing Committee on Professional Discipline to conduct a comparative review of all four disciplinary systems in the state.

In 1982, ABA issued two reports in which it recommended total dismantling of the current system, to be replaced by a statewide court of discipline, a statewide ADMINISTRATIVE BODY, hearing committees and staff.

That was, ladies and gentlemen, 33 years ago!!!

Naturally, in 1983 New York State Bar Association rejected those recommendations.

In 1985 New York State Bar Association issued its own report.

The Commission says nothing about the contents of the 1985 NYSBA report other than that it was inspired by the 1970 Clark Report which it ignored for 15 years before being "inspired", as it also rejected the two subsequent ABA reports.

So, beside scholarly studies also mentioned in the Commission's report, we have the following chronology of reports addressing issues of uniformity and fairness of attorney discipline in New York:

1. 1970 - ABA "Clark Report"
2. 1972 - NYS Judicial Conference "Christ Report"
3. 1982 - ABA Standing Committee's TWO reports
4. 1983 rejection of 1982 ABA report by NYSBA
5. 1985 NYSBA report "inspired" by 1970 ABA "Clark's Report"
6. 2015 Statewide Commission (Cozier's) Report.

So we have a span of 45 years during which time reports were mad by the ABA on the same issue in 1970 (45 years ago), then 12 years later (33 years ago) - and here we are in the year of 2015 with a brand spanking new report, which, very possibly, will be treated the same way the previous reports were - used in the toilet.

Now, with this attitude to the "luxury of time", let's look how the Commission approached its duties.

It called 3 hearings:

• in Albany;
• in Buffalo and
• in NYC

Nobody knows why this magic number.

Why 3? Why not 10, why not as many as needed?

Ok, let's look at how many witnesses testified and how many of those who wanted to orally testify the Commission was "unable to accommodate".

First of all, the Commission reports about its system of notification of the pending public hearings:

Let's note that invitations were NOT e-mailed to legal consumers, and the Commission is deliberately obscure as to who were the "individuals" who were personally invited by e-mail to testify at the public hearings.

There were no publications in newspapers addressing readers in the Buffalo region, New York City region where public hearings were held, and I doubt that Albany Times Union is read by many beyond Albany.

The Commission omits the fact that notices were very short, and that public hearings were held for 2 hours at lunch time during vacation period.

The Commission mentions that it had "time constraints" in conducting the hearings, but does not explain what was the reason for those time constraints.  

If members of the Commission were too busy doing their jobs, there was an easy solution - leave the Commission and let legal consumers sit instead of you, there would have been plenty of volunteers to conduct public hearings for as long as needed and let anybody who wanted to speak, to speak without any time restrictions.

Look at the numbers, ladies and gentlemen!

A total of 31 people appeared, and 50 people who wanted to testify were not allowed to do so.

The Commission could not accommodate JUST 50 WITNESSES!  In public hearings on matters of serious public concerns that were not properly addressed since the Clark report of 1970, 45 years ago!

If 31 witnesses were heard in 3 days (with time restrictions), all 81 people could be heard in, let's say, 10 days without any time restrictions.

The Commission was announced in February, formed in March and submitted the report in September.

They did not have 10 days to accommodate just 50 extra witnesses?

While the witnesses that they invited were, in their absolute majority, attorneys?

Those are called PUBLIC hearings?

And wait, the Commission patted itself on the head as to how good it was in inviting reporters to the hearings:

So, the Report claims that a "videographer" was allegedly present to record the "entire proceeding".  But, I was not given that recording pursuant to my FOIL request.

Also, the Commission modestly claimed that "an investigative reporter and photographer" from Long Island Backstory was present at the proceeding, with an inactive link leading to the general page of Long Island Backstory on YouTube (while there was an active link to publication in the New York Law Journal), yet the Commission report fails to mention that the "VIDEOGRAPHER" from the same Long Island Backstory, together with Gary Jacobs, the investigative reporter, was thrown out of the building when they attempted video recording, and a demand was made by a representative of the Commission that Gary Jacobs must leave the sidewalk before the building where the hearing was held, too, and that a video report of that incident was also available on YouTube, exposing the Commission for the sham that it is.

The Commission did not mention in its report that investigative journalist Gary Jacobs, from Long Island Backstory, simply suggested for the Commission to call the police to get him and his videographer off the sidewalk, which was, obviously bad for publicity for the Commission and was not done.

I ran a blog about this video report here.

And, the Commission does not mention the post-hearing video report of Elena Sassower describing how the Commission refused to see records material and relevant to the issues that were in front of the Commission, which Elena Sassower painstakingly put together and brought to the Commission - only to be rejected by Cozier.  

Or Elena Sassower's statement post-hearing that courts are responsible for having the attorney disciplinary law in disarray by refusing to address attorneys' pleadings without an explanation.  Elena Sassower mentioned that she had a lot more to say and was not allowed to cover her topics.  

Or how members of the Commission fled after it closed the hearing, obviously afraid of any questions or comments from the public.  

Or that the system is dysfunctional and corrupt, and those who were sitting in the presiding panel were responsible for that state of events.

There was simply NO GOOD REASON why witnesses who wanted to present any critical arguments or evidence, were harassed by the Commission, cut off, refused extra time, refused opportunity to present to the Commission important issues.

Omissions by the Commission in its Report as to what REALLY happened in the proceedings shows that the Commission was AFRAID that a proper record of the proceedings would be made by a professional crew of investigative journalists, capturing at the right angles, focuses and zooms, facial expressions and actions of participants and the presiding panel.

There is not one mention in the Commission's Report of criticism in the press and social media of its work, only references to laudatory reports.

Such self-praising presentation also does not promise that any real reforms will be made by this Commission.

So - too much time to save face, not enough time to do its job, so we are looking at another 45 years before any changes will be made in the old boys' club?

Victims paying their predators for daring to challenge them

In the recent article on Forbes.com, commentator George Leef whom I deeply respect, described the situation where victims of civil asset forfeiture in the State of Arizona are being punished for challenging governmental action in court and made to pay attorney's fees of perpetrators of misconduct against them.

George Leef states that it is completely unacceptable for victims to be punished for challenging perpetrators of misconduct, and that attorney fees should be awarded against the perpetrators, like it is done under the fee-shifting provision of the Civil Rights Act, 42 U.S.C. 1988.

Unfortunately, though, Arizona is not the only jurisdiction that punishes victims of governmental abuse for daring to challenge that abuse.

The very same thing has been happening for years in federal courts that transformed the "fee-shifting" statute, 42 U.S.C. 1988 in defendant-feeding and victim-bashing statute, awarding attorney's fees under this statute against civil rights plaintiffs rather than against civil rights defendants.

42 U.S.C. 1988 was enacted in order to help pro se, often indigent or low income, often "unpopular" civil rights plaintiffs with "unpopular" causes of suing the government, which many attorneys are simply afraid to do, to provide a financial incentive to attorneys to represent such clients without any money up front, with an opportunity to be paid by defendants if the case is won, kind of a contingency-basis provision.

Yet, the incentive turns out to nothing when

(1) most of civil rights cases get dismissed due to judge-created restrictions to jurisdiction created outside of federal court's power under Article III of the U.S. Constitution and in usurpation of exclusive Article I power of the U.S. Congress to enact legislation and to amend legislation, including jurisdiction of federal courts.  Thus, civil rights attorneys get nothing under 42 U.S.C. 1988;

(2) moreover, the promise of payment may and very often does turn into a loss for a civil rights attorney, and loss not only of time, but also money, because federal courts, in order to thin out their dockets, apply sanctions against civil rights plaintiffs "for frivolous conduct", for suing the government at all under 42 U.S.C. 1983 when courts created those illegal bars to federal jurisdiction, and award thousands upon thousands of dollars of attorney fees, under the same statute that was supposed to help civil rights plaintiffs, against such civil rights plaintiffs and their attorneys.

I was on the receiving end of this treatment multiple times.

After a while, a civil rights attorney inevitably would stop and think whether civil rights litigation is worth it at all if all you get is sanctions and money judgments against you.

Moreover, in my case at one attorney (who is also a judge in a criminal justice court and thus a favorite of the judiciary) obtained sanctions for me from a judge I sued in a completely unrelated case by inciting the judge by saying to him, essentially - she is bad because she sued you, sanction her.  And he did.  And now he is trying to do the same with another set of judges, on appeal.  The name of this winner is Jonathan S. Follender or Arkville, New York.

He obtained a dismissal of a meritorious case and sanctions against me by inciting the already indictable judge James Tormey who was sued by a female court attorney/clerk for discrimination and retaliation, which resulted in a $600,000 settlement, for some inexplicable reason out of taxpayers' pockets, after 4.5 years of litigation, and he is sued now again by yet another female court employee, also for discrimination and retaliation, and, of course, the New York State Commission for Judicial Conduct is asleep at the wheel and would not investigate Judge Tormey's misconduct in any of these cases despite all affidavits available that were filed in those cases.

After obtaining sanctions from this judge/woman-hater by saying - "judge, she sued you, get her,", against me as yet another female attorney/victim, Jonathan Follender was inspired that his trick worked.

He is now repeating the trick with an appellate court, openly claiming that, because of my professional activity as a civil rights attorney, and, as a civil rights attorney, am suing the government, which may include courts (as necessary parties where constitutional challenges are involved), and because I included into such lawsuits (necessarily) the appellate court handling the case, the appellate court must sanction me.

Beautiful logic.

And right when I received Follender's appellant's brief asking, once again, another court, to "get her - she sued you", I read George Leef's piece on victim-bashing in Arizona.

In my case, victim-bashing turns into chasing of victim's attorney through courts and sanctioning them over, and over, and over again, for suing judges - by the same judges whom I sued, who have NO authority to decide THEIR OWN cases.

To show that such civil rights plaitniffs-bashing, victim-bashing, and bashing their attorneys, is not just my experience, but a predominant tendency in civil rights litigation, I suggest my readers to consider this law review article.

Which, reflecting the sad reality, states that "The Chill Goes On".

And it will go on until you, my readers, start writing petitions to your representatives in the U.S. Congress to amend 42 U.S.C. 1988, clearly stating that, under no circumstances it can be used against civil rights plaintiffs and their attorneys, and that under no circumstances victims of governmental abuse whose cases are dismissed without reaching the merits, on "failure to state a claim" grounds, as well as on various immunities-comities-deferences-abstentions-Rooker/Feldman grounds, should not be sanctioned and made to pay perpetrators' legal fees, nor should civil rights attorneys be so sanctioned, otherwise civil rights litigation will simply die out, as it is already doing.

Changes in fraud upon the court law made the Mokay saga a corpse, but the zombi treads on

In May of 2014 the New York State Court of Appeals changed the law pertaining to fraud upon the court.

It made the civil cause of action in fraud upon the court inapplicable to:

1) individuals who were not parties in litigation out of which the fraud upon the court claim arose;
2) inapplicable to settlements; and
3) inapplicable to conduct that occurred after the final judgment in the case

I will illustrate my points.

This is a direct quotation from the case CDR Creances S.A.S v Cohen, 2014 NY Slip Op 03294 Decided on May 8, 2014: 

Quote

=====

The evidentiary standard applied by the federal courts is sufficient to protect the integrity of our judicial system, and discourage the type of egregious and purposeful conduct designed to undermine the truth-seeking function of the courts, and impede a party's efforts to pursue a claim or defense. We adopt this standard and conclude that in order to demonstrate fraud on the court, the non-offending party must establish by clear and convincing evidence that the offending "party has acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case and his adversary's defense of the action".

Unquote
=======

The new standard allows only a non-offending "party" to bring a claim of fraud upon the court.  The Mokay children were not parties in the divorce action of their parents.

The new standard requires a finding by clear and convincing evidence - that was not done for Mr. Neroni.

The new standard requires a finding, by clear and convincing evidence, that the offending party "has acted knowingly in an attempt TO HINDER THE FACT FINDER'S FAIR ADJUDICATION of the case AND his adversary's defense of the action".

One cannot hinder adjudication by engaging in conduct after the adjudication is concluded, thus, the new standard excludes conduct committed after the final judgment in the case out of which the claim of fraud upon the court arises.

On cannot hinder fair adjudication of the case AND, at the same time, his adversary's defense of the action where the case was settled, thus a claim of fraud upon the court excludes settlements, according to the new standard.

Since Mr. Neroni's case was very much pending, and the trial was set on May 13, 2014, 5 days after the decision, but was adjourned on Plaintiffs' request.

Plaintiffs never disclosed the new law to the court, as they were required by law, and continued with litigation that has become frivolous as of May 8, 2014.

Yet, the law came in effect before the case was finished and is fully applicable to it.

So, now we have an "interim" judgment for over $300,000 awarded to people who had no right to assert the claims, by a judge who prefers to engage in unauthorized practice of medicine and re-diagnose back injuries of female immigrant attorneys who sue him (that is me) rather than to do his job.

I am filing a complaint against Dowd and against the trio of attorneys (Richard Harlem, Eric Jervis, James Hartmann) who perpetrated this fraud.

As I said before in the Neroni v Harlem case, fraud asserted by Richard Harlem as an attorney is not an accident or mistake, Richard Harlem learnt at the knee of a master, see my blog about the Blanding saga.

As to responses of authorities to these complaints, stay tuned.

The Report of NYS Statewide Commission for Attorney Discipline: fraud upon the court by 3rd Department on the 3rd Department? Oh, well

I am continuing to publish my analysis of the Report of the New York State Statewide Commission on Attorney Discipline.

2 officials from NYS Appellate Division 3rd Department (a deputy clerk and counsel for the chief judge Karen Peters) and 2 officials from that court's Committee for professional discipline (Monica Duffy, Samantha Holbrook) were members of the Commission, and thus, authored the Report and knew about its contents.

Parallel to the work of the commission I had two ongoing cases:

• Neroni v Zayas in the U.S. District Court in the Northern District of New York and
• my own disciplinary case which was
• started in the 3rd Department, 
• removed to NDNY, 
• remanded to the 3rd Department and 
• transferred to the 4th Department, where it sits now

On page 9 of the Report published on September 24, 2015 I read that the Third Department has a standard of proof in its disciplinary proceedings by clear and convincing evidence.

If that was true, disbarment of my husband would not have been possible, because he was disbarred WITHOUT A HEARING, based on application of the so-called collateral estoppel to a decision made to a lower evidentiary standard, by preponderance of the evidence.

My claims to the 3rd Department that my husband's case needs to be decided to the standard "by clear and convincing evidence" were rejected.

On pages 40-42 of the Amended Complaint in Neroni v Zayas, on February 9, 2015, I put in the following claims on behalf of my husband Frederick J. Neroni, specifically claiming that the roller-coaster of standards of proof in the 3rd Department, with:

• clear and convincing evidence standard in disciplinary proceedings leading to private discipline (letter of education, caution, admonition);
• lower preponderance of the evidence standard for public discipline such as censure, suspension and disbarment (applied to my husband); and
• the back-to-clear and convincing evidence standard in license reinstatement proceedings 

is arbitrary and a violation of attorneys' due process and equal protection of laws.

Defendants in that case were the same Duffy and Peters.

They had ample opportunity to say - hey, you are wrong, our standard of proof (established by Peters as a legislator and then applied by Peters as an adjudicator) is clear and convincing evidence throughout!

No, they did not say that, because had they said that, I would have immediately moved to vacate the order of disbarment of my husband.

And, they fought tooth and claw in my husband's disciplinary case arguing to the court that the proper standard of proof is by preponderance of the evidence.

So, in Neroni v Zayas, Duffy and Peters perpetuated their misconduct by obtaining a dismissal of my claims as to this roller-coaster of evidentiary standards on Rooker-Feldman grounds which were not applicable (that was on March of 2014 and June of 2015), and then, on September 24, 2015, they stated with straight faces in the Report on FAIRNESS to attorneys during discipline that their standard of proof is actually by clear and convincing evidence.

Well.

I cannot sue them for fraud - they will cover up with immunity.

I cannot have them disciplined - because people sitting on the Judicial Conduct Commission are attorneys whose own licenses are in the hands of judges they are investigating, and Duffy already refused to refer the case against herself to a special investigator and prosecutor, instead dismissing it.

I doubt I can bring criminal proceedings against them, because Albany County District Attorney is a licensed attorney, was already censured for criticism of judges and will tiptoe a thin line wherever judicial misconduct is concerned.

So - what is the remedy for this fraud?

Any suggestions?

What remains is - for any pending disciplinary cases in the 3rd Department, DEMAND application of their declared standard of proof - by clear and convincing evidence, and quote page 9 of the Commission's report.

The Report of the New York State Statewide Commission for Attorney Discipline skips the main issues requiring urgent reform and attempts to derail legislation dealing with prosecutorial misconduct

On September 24, 2015 the NYS Statewide Commission for Attorney Discipline has issued its Report and Recommendations.

I am starting to post my analysis of the Report, while I am still waiting for the New York State Court Administration to satisfy my FOIL request that I made for records of the Commission on August 23, 2015, over a month ago.

There was certain very important issues that were raised during public hearings, and by the decision of the U.S. Supreme Court in February 25, 2015 that ruled that "state" licensing boards run the way attorney disciplinary boards are run in New York, are in violation of federal antitrust law, which is not only a civil liability for the state, but also a federal crime.

So, what did the Report say about pivotal issues pertaining to attorney disciplinary system?

1/ where the "practice of law" is not clearly defined, the government has no right to regulate the practice of law, or consider discipline during such regulation that affects people's reputation and livelihood

Lack of clear definition of the practice of law is not even touched upon in the Commission's Report.

Where there is no clear recognition of a problem - and a problem of a constitutional dimension - the problem will persist.

2/ There is selective non-enforcement of attorney discipline in New York against politically powerful, wealth and/or well connected attorneys - that concern was expressed in oral testimony in public hearings before the Commission

The words "selective enforcement", or its analysis, do not appear anywhere in the Report.

Where there is no clear recognition of a problem, there will be no efforts to correct it, and it will persist.

The Commission made an extraordinary recommendation though, after acknowledging that prosecutorial misconduct is not addressed by attorney discipline, but still stubbornly refusing to use the term "selective non-enforcement" against themselves (where members of the Commission ARE members of those very same attorney disciplinary committees that are engaged in non-prosecuting criminal prosecution for misconduct leading to wrongful convictions).

The Recommendation of the Commission on pages 76-77 of the Report is that criminal courts should make automatic referrals of criminal prosecutors to disciplinary committees, AND THEN they will prosecute criminal prosecutors.

Moreover, the Commission tried to, at the very same time, 

1. derail the efforts of the NYS Legislature to establish a separate Commission for Prosecutorial Misconduct - because members of the Commission, members of attorney disciplinary committees engage in selective non enforcement of attorney discipline against criminal prosecutors who bring about wrongful convictions, and
2. pledge that members of the Commission/members of attorney disciplinary committee will do their discretionary job when they have a court referral against a prosecutor to protect themselves;
3. request district attorneys to "address the issue internally" - translation into plain English - disciplinary committees humbly ask the district attorneys to correct their own misconduct in which DAs engaged to drum up wrongful convictions and get political points to be elected as judges, and which was not corrected so far for years and resulted so far in over 3,000 of wrongful convictions that were documented, and how many are still undocumented; and
4. "stress" that the vast majority of what is claimed to be prosecutorial misconduct is not malicious, but is "good faith error" - which is a self-serving explanation of why the Commission members/members of disciplinary committees do not prosecute prosecutors for misconduct leading to wrongful convictions is clearly defied by the number of those wrongful convictions and by findings made by CIVIL RIGHTS GROUPS, instead of committees, that prosecutorial MISCONDUCT, and not good faith errors, have caused the wrongful convictions.

Here is the exact statement from the Report, pages 77-78.

In sum, the Commission tells the State that it will be cheaper to leave things as they are with non-prosecution of prosecutors for wrongful convictions, because:

• Creating a separate Commission for Prosecutorial Conduct will "add another bureaucracy level" and will cost more money;
• prosecutors can deal with the "issue" "internally" - they are doing it beautifully so far;
• assures the State that members of the Commission who are members of the disciplinary committees will start doing their jobs in disciplining prosecutors on referrals from courts only, and not on their own investigations, as they do against other "mere mortal" attorneys; and
• and provide an immediate path and hint to Commission members who are judges to derail that "referral path" by stating that judicial decisions mostly find "good faith errors" and not malicious misconduct in prosecutorial conduct that have led to thousands of wrongful convictions so far - practically prompting courts to continue to do the same thing of whitewashing wrongdoing of criminal prosecutors.

By the way, the request for referral from courts in order to commence disciplinary proceedings against prosecutors is quite an admission that attorney disciplinary committees (including Monica Duffy, member of the Commission who both co-authored the Report and made a statement at the Albany public hearing that her committee does not engage in selective non prosecution of prosecutors).  

A court referral IS NOT a pre-requisite for commencement of attorney disciplinary investigation or prosecution, it is within the discretion of the committees, and Monica Duffy's committee explained that same thing to the me many times.

And - wait a minute - why this recommendation TO JUDGE LIPPMAN that the current Bill S24, a Legislative initiative, should not be approved BY THE NEW YORK STATE LEGISLATURE?

Here are the declared goals of the Commission, charged by Lippman:

Lippman did not charge the Commission, nor did he have authority as New York Chief Judge to charge the Commission, to provide recommendations to New York State Legislature whether to cancel the pending legislation, Bill S24 - which Commission is actively doing by its "Recommendations".

By the way, a witness testifying in Buffalo, testified about the lobbying efforts by the DA's association in NYS Legislature to derail that particular Bill S 24.  

Moreover, what Mr. Bastuk was proposing was meritorious and was proposing the very opposite of what the Commission ultimately proposed.

Mr. Bastuk said - why wouldn't the committees use as a basis to start investigation of a prosecutor for wrongful conduct not REFERRALS of courts, but DISMISSALS of federal civil rights actions on the basis of prosecutorial immunity - because, even though Mr. Bastuk did not say that, but I will add as a civil rights lawyer, prosecutorial immunity was given on a PRESUMPTION that prosecutorial discipline, as an alternative remedy, is available.

And, there is a recent precedent in New York Commission for Judicial Conduct to commence investigation and disciplinary prosecution of prosecutorial misconduct - the removal of Judge Bryan Hedges where a lawsuit against him for the same grounds upon which he was removed was precluded by statute of limitations.

The Commission heard that testimony and engaged in their own lobbying to derail Bill S24 - under the guise of "Recommendations" for, allegedly

3/ There is a problem with separation of powers where in the disciplinary proceedings the same body (the licensing court) investigates, prosecutes (through its "arm" - the committees") and adjudicates attorney disciplinary proceedings.  

Words "separation of power" or discussion of this problem do not appear anywhere in the Report.  

There is a reference in the Report to recommendations by attorneys from ABA Standing Committee (see Report, Appendix 11 to the Report posted separately), and those recommendations mention that adjudicative and investigative functions should not be handled by the same body, but the report does not go into any meaningful analysis of these recommendations and does not attempt to end the separation of power problem in the attorney disciplinary proceedings.

On the opposite, the Report, on page 70, makes this astounding statement:

This says a lot.

If there is no problem with separation of powers, then the prosecuting body is ALREADY subject to the "Executive Law regarding compliance with ... Freedom of Information laws", as criminal prosecutors are, and the law it is irrelevant what kind of "additional burden" FOIL puts on the committees, because it has already been ruled by New York courts that FOIL requests are presumed as a matter of law to be made in public interest, whether response to FOILs burdens the committees or not.

At this time, disciplinary committees wear three hats at the same time:

• the investigative hat;
• the prosecutorial hat; and
• the judicial hat

and use them circumstantially, as it serves them better.

For purposes of filing a petition with the court and prosecuting an attorney, they will claim they are executive branch, because a court cannot be a party in its own proceeding.

Then, for purposes of ducking attorney's attempts to get access to his/her own file in the committee, the judiciary hat is donned by the committee and the committee will claim that, as an "arm of the court", they are not subject to FOIL - even where criminal prosecutors are part of executive branch and are subject to FOIL.

Then, when sued in civil court for civil rights violations, disciplinary committees will claim, intermittently, as it fits their circumstances better, either prosecutorial or "quasi-judicial" immunity for malicious and corrupt acts during such proceedings.

Members of the Commission who are also members and attorneys for disciplinary committee know that well and do these tricks often.  In fact, Monica Duffy and Samantha Holbrook, continue to do that as we speak, in opposition to the Neroni v Zayas appeal - a position completely inconsistent with their position as members of the Commission who pretend to want to introduce some "fairness" into the attorney disciplinary process.

Duffy and Holbrook, Members of the Commission/members of the disciplinary committee obtained a judgment of a federal court claiming that it is the civil rights plaintiff who is "confused" by claiming that, when the committee dons the judicial hat in rejecting a FOIL request, it undermines the legitimacy of the entire attorney disciplinary proceedings, making the court a party in the action it is adjudicating.

Yet, it is clear that a public official can only be EITHER a judge OR a prosecutor in a given proceeding brought by the government, but NEVER BOTH.

And that proceedings where the judicial and prosecutorial duties cross may not be constitutionally called JUDICIAL proceedings, these are ADMINISTRATIVE proceedings.

Which brings us to the next issue that the Report did not even touch upon - the nature of the attorney disciplinary proceedings and the nature of attorney's rights in their law licenses.

4/  The challenge to the nature of attorney disciplinary proceedings as administrative and not judicial in nature (because of combination in one body of legislative, investigative, prosecutorial and adjudicative functions, no discovery and no other procedural rights for attorneys that are allowed in court proceedings, such as a right to an open jury trial of all issues of fact) was brought up in court against Commission members Duffy, Holbrook and their committee, Lippman and the 3rd Department Court back in February of 2013, so that they cannot claim they are unaware of the challenge.

The Report makes no mention of that lawsuit, which is currently on appeal, or of other civil rights lawsuits that have brought constitutional challenges to attorney disciplinary system and were made to disappear by members of the Commission over the years, as defendants in such lawsuits.

After all, members of the Commission are those who created and run this system that is in violation of the doctrine of separation of powers, and it is naive to expect them to reform it since they created it for a self-serving reason in the first place.

The Report also makes no mention of the issue itself, that by its features and attributes, attorney disciplinary proceedings in New York are administrative and not judicial in nature.

To admit such a thing would mean that ALL attorney disciplinary determinations will be subject to Article 78 proceedings, as are other occupations license revocations, for licenses other than law licenses.

Yet, there is no mechanism at law in New York to bring an Article 78 proceeding AGAINST the intermediate appellate court, when positioning of the licensing body into the court requires bringing that Article 78 proceedings IN the same court AGAINST WHICH the proceeding is supposed to be brought.

In New York, an Article 78 proceeding against a judge or court in its official capacity can be brought ONLY and EXCLUSIVELY in the intermediate appellate courts.

When intermediate appellate courts are deciding the issues of license revocation, and the due process rule prohibiting a court to review a case against itself disqualifies such appellate courts from reviewing such cases, the problem with attorney disciplinary proceedings becomes fully visible, and that problem was not even touched upon in the Report.  

Moreover, if deciding license revocations is placed into the highest court of the state - as ALL other states do, by the way - that will not correct the equal protection problem, because there is no mechanism in New York law to bring an Article 78 proceeding against the New York State Court of Appeals, as an administrative body, either, unless the Article 78 proceeding is brought in the lower-level trial court of general jurisdiction under the claim that the licensing/revoking court was acting as a mere administrative agency and is subject to the same reach of Article 78 as administrative agencies.

Yet, no attorney will dare to bring such a claim on behalf of a disciplined attorney, because both the representing attorney and the disciplined attorney will then be immediately punished for frivolous conduct up to $10,000 each and made to pay the opponent's counsel fees, even though theoretically they will be completely correct.

Recognition, through a declaratory judgment, that attorney disciplinary proceedings in New York, even those that are brought and concluded in appellate courts and result in censure, suspension or disbarment, are administrative in nature, is one of the issues in the Neroni v Zayas federal lawsuit filed in February of 2013, dismissed partially in March of 2014 and finally in June of 2015 and currently on appeal to the U.S. Court of Appeals for the 2nd Circuit.

Recognition of administrative nature of law license revocation - which should have been done long time ago because there is no distinction between an occupational license to practice law and any other occupational license, revocation of which in New York by the licensing body is an administrative proceeding by its very nature - will bring to the fore the interesting question that attorneys in New York, officers of the court responsible for protecting rights of their clients, are themselves devoid of even the most elementary right of judicial review of license revocation, even though their right for access to court is guaranteed by the Petitions Clause of the 1st Amendment to the U.S. Constitution, as well as by the State Constitution.

Naturally, it was not the purpose of the Commission to create any report that would expose constitutional infirmities of the current attorney disciplinary system.  After all, the Commission's members are themselves fighting in courts as defendants against such challenges and did not want to create problems for themselves.  For that same reason, because of that irreconcilable conflict of interest, those members of the Commission should not have been members of the Commission, because their conflict made the Report devoid of any credibility.

What the Report does try to do though is, on page 39, it suggests creating a "tribunal" (carefully avoiding mentioning whether such a tribunal will be by its nature a court or an administrative agency) that will review appeals from attorney disciplinary decisions.  Here is what the Report says exactly:

New York already has clear law providing for appellate review - or lack thereof - of the court that is higher than intermediate appellate court that revoke attorney licenses, the New York State Court of Appeals.

The recommendation suggests that yet another appellate "tribunal" is created, with a "limited and discretionary" jurisdiction, to address exclusively ONE TYPE, ONE CLASS of appeals - appeals from revocations of attorney licenses.

This is an extraordinary suggestion for a Commission dominated by judges and lawyers.

The only "tribunal" that may exclusively handle appeals from only one type of cases, revocation of occupational licenses, is an administrative agency issuing those same licenses.  

By suggesting this new "tribunal" to co-exist with the New York State Court of Appeals, the currently existing appellate jurisdiction for appeals from judicial decisions of appellate divisions, the Report recognizes, without putting it in so many words, that appellate decisions in attorney discipline are administrative in nature.

Yet, the Commission does not go further and does not say - well, if attorney disciplinary proceedings are administrative in nature, as we recognize by recommending to create a tribunal dealing exclusively from appeals from attorney disciplinary cases, attorneys in New York are not afforded ANY judicial review, and that is a major constitutional problem.

5/ The Commission did not address the nature of attorneys' rights in their law licenses as a constitutional right, instead continuing to claim it is "an exclusive privilege", in order to avoid direct admission of constitutional infirmity of attorney disciplinary proceedings.

Back in 1963, the U.S. Supreme Court has ruled that denial of even admission to the bar without a hearing was a violation of the applicant's due process of law.  

The court has held, among other things as follows:

Thus, as of 1963, the U.S. Supreme Court has held, pertaining to a lawsuit against a New York attorney disciplinary committee, that:

(1) a person's right to practice law is the same as a person's due process right to earn a livelihood; and

(2) that due process of law requirements must be met before a person is "excluded" from the practice of law, and "exclusion" covers actions of the State in two directions that include both

        (i) blocking admission into the practice of law, and 

        (ii) expulsion from the practice of law through attorney disciplinary proceedings.  

52 years after that decision, the Commission stated the following in its Report on pages 13-14:

So, 52 years after the U.S. Supreme Court clearly ruled, against a New York State attorney disciplinary committee, that practice of law is not an "exclusive privilege", but a due process right to earn a livelihood, Commission that has as its members members of those same disciplinary committees, continues to claim that practice of law in New York is only "an exclusive privilege", because such positioning of the practice of law does not require the Commission to deal with the sticky issues that 52 years after the court order by the U.S. Supreme Court, New York still continues to defy it and provides no due process to its attorneys before revoking their livelihood.

6/ The Commission did not address the nature of attorneys'  right of access to their own disciplinary file before, during and after the disciplinary proceeding as a due process right, instead playing with the word "fairness", to avoid direct admission of constitutional infirmities of attorney disciplinary proceedings

Recently in the case Neroni v Zayas, the federal judge, on request from Monica Duffy and her disciplinary committee, dismissed a constitutional access-to-attorney-disciplinary-file challenge and equated the right of access of an attorney before, during and after his disciplinary proceedings to a mere "property" right equal to right-of-access right to public records of any other member of the public who is not subject of those proceedings.

The challenge was dealing with the situation where Monica Duffy's Committee:

• claimed to the disbarment court (of which the committee claims itself to be "an arm" in federal proceedings, to protect itself from accountability, damages and even from injunctive or declaratory relief) that the Committee allegedly has certain records which the Committee present to the court as "aggravating circumstances" warranting an attorney's disbarment;
• the disbarment was granted without a hearing, based on those claims, where the claimed records were referenced, but not presented to the court or to the disbarred attorney.  Disbarment without a hearing was, of course, a violation of attorney's due process right according to the 52-year-old U.S. Supreme Court precedent even for admission to the bar, and the disbarred attorney practiced law for 37 years,
• before the disciplinary petition was filed, during the disciplinary proceedings, and 4 years after the disciplinary proceeding concluded with disbarment, the attorney's access to the records, which were not presented to him or the court, but upon which his disbarment was granted, was not provided to the attorney;
• the attorney tried requests under Freedom of Information Law, Judiciary Law 255 and due process of law, and failed;
• When discovery was about to happen in the federal lawsuit that the attorney filed for access to the file, Monica Duffy made an ex parte application (an act of attorney misconduct) to the court, without notice to the disbarred attorney, and had his file (allegedly) transferred to another court, within 5 hours' drive from the disbarred attorney;
• the receiving court did not receive the disbarred attorney's file;
• Monica Duffy and the transferring court, of which Monica Duffy's Committee is "the arm", continue to sit on the file which was not provided to the disbarred attorney before, during or after the disciplinary proceedings, and that was allegedly, but not actually transferred to another court, so Monica Duffy and the 3rd Department/Karen Peters as the Chief judge of that court are in defiance of their own ex parte order of transfer;
• Monica Duffy and the court continue to deny the disbarred attorney even such elementary things as a copy of the application by the committee for the ex parte post-disbarment order of transfer and a copy of the affidavit of service, or an explanation to the court why service is not required, of that application.

All of that constitute attorney misconduct and judicial misconduct.

Of course, Monica Duffy refused to investigate and prosecute herself and members of her Committee.

And, of course, the court that colluded in that misconduct, refused to appoint a special investigator and prosecutor against Monica Duffy.

And Monica Duffy is the same person who prosecuted the disbarred attorney's counsel and wife (myself) for not committing a crime of unauthorized practice of law by not appearing at a deposition in 2008 and by not answering a motion in 2008 on behalf of clients whom I was not allowed by law to represent as an attorney and whom I did not represent in fact, because I was not admitted to the bar until 2009, and for all of that there are, of course, court records that were right in front of Monica Duffy and which she ignored, which constitutes yet another act of attorney misconduct that Monica Duffy refuses to investigate and prosecute against herself, and nobody else other than her, or a special investigator and prosecutor that the 3rd Department refuses to appoint, can do.

This one reads like a "House that Jack built" story, but it is all reflected in the court records, and Monica Duffy, who should have been disbarred long time ago for all of the above attorney misconduct, continues to sit on Commissions and Committees and even recommends to the State of New York how to make attorney disciplinary proceedings fairer, better and more efficient.

There is nothing more efficient than what Monica Duffy is already doing - fabricating charges, denying access to the file, claiming to the court aggravating circumstances through non-existing records and then hiding evidence of her misconduct and criminal behavior by entering into collusion with the court that appointed her to transfer the case someplace else, in order to defy discovery in a federal civil rights lawsuit, while continuing to sit on the file that she claimed she transferred (or concealing the fact that such a file does not exist, and never did, and that she and her committee obtained an order of disbarment 4 years ago by fraud).

Let's also keep in mind that Monica Duffy, her Committee, the 3rd Department Court, all members of the Commission appointed by Lippman, and Jonathan Lippman himself, the creator of the Commission, at this very time, continue to oppose an appeal dealing with a constitutional challenge by an attorney disbarred by her with the help of blocking the attorney's access to the disciplinary file and then using references to that secret or non-existent file as an aggravating circumstance to disbar the attorney without a hearing, Neroni v Zayas, Case No. 15-2030 in the U.S. Court of Appeals for the 2nd Circuit.

Now, with all of this in mind, let's look at what Monica Duffy and the 3rd Department, co-defendants in Neroni v Zayas, propose, as members of the Commission to Jonathan Lippman, another co-defendant in Neroni v Zayas and creator of the Commission, on the subject of attorney's access to the file in disciplinary proceedings:

So, Monica Duffy, her Committee and the 3rd Department, while continuing to fight an access-to-the-file civil rights lawsuit and a challenge to disbarment based on fraud because of lack of such access to the file and lack of knowledge by the attorney what, if anything, that concealed file contains, the same Monica Duffy, her Committee and the 3rd Department have the audacity to "recommend" to his co-defendant Lippman - who affirmed that order of disbarment without review  and also continues to fight that access-to-the-file lawsuit - that

• new rules in attorney disciplinary proceedings should be introduced;
• that the new rules should include "uniform discovery" and "information sharing" for attorneys - the exact same things that are challenged as constitutional infirmities in the Neroni v Zayas lawsuit that the Monica Duffy crew is fighting at this very time; and
• that "this recommendation" is of the "highest priority", and
• that "firm deadline for adoption" of such rules should be established.

I must tell you - Monica Duffy, Karen Peters and Jonathan Lippman take hypocrisy to a whole new level.

I will continue to post my analysis of the Report.

Stay tuned.