THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.
It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.
" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
Friday, January 29, 2016
A request to New York State Commission for Judicial Conduct to renew all complaints dismissed over 42 years of the Commission's existence
I do understand, of course, that some investigations are moot because some judges who were subject of complaints were voted out of office, retired or died.
Yet, complaints made at any time against those judges who are still on the bench, should be revived because of the taint in how they were dismissed.
I already wrote on this blog about this rule and its consequences of taint on investigations.
Now I asked the Commission to clean up its act.
I also asked the Commission, under the Freedom of Information Law, to provide to me names of members, former members of the Commission and their law firms who DID practice in front of the Commission, with details - who they represented and in which cases.
I will report on this blog about any response from the Commission.
Here is my request to the Commission:
Thursday, January 28, 2016
Judge Harvey Bartle III, Judge John F. Lambert and attorneys as slaves
Wait a minute, you will say, but how about the 13th Amendment to the U.S. Constitution that all state and federal government officials are sworn to uphold.
Doesn't it prohibit all forms of indentured servitude - which means, work without pay?
Apparently, not all - at least, that's what many judges think.
For example, yesterday, a Princeton graduate, 75-year-old senior U.S. District Judge Harvey Bartle III, former Chief Judge of the U.S. District Court for the Eastern District of Pennsylvania (the Kids for Cash state and "take Attorney General's license for exposing judicial corruption" state) ordered criminal defense attorneys to represent a well-off defendant for free, even if this will mean going bankrupt for the firm.
Here is our slave-owner judge, paid for life by us the captive-cash-cows-the-taxpayers over $200,000 a year with benefits for him and family, looking all bright and sunny:
And that is even though their criminal defendant is the bright-and-sunny U.S. Representative for the State of Pennsylvania Chaka Fattah, prosecuted for allegations of misuse of federal grants and charitable donations (and his son is recently convicted "of 22 of 23 counts alleging that he misspent loans and some of the nearly $1 million in education funds he got as a school management subcontractor"). Such a good family.
Rep. Fattah, who is very far from being poor and unable to afford an attorney - and yet he did not pay his legal bills reportedly for 5 months.
Rep. Fattah has been elected in 1994, as a federal legislator he commanded a very good salary for 12 (!) years (at the captive-cash-cow-the-taxpayers' expense) and definitely does not fit the definition of an indigent entitled to a public defender.
Not only Rep. Fattah is supposed to have funds, but he has a contract with his attorneys to pay them for their services.
In any other profession if you do not pay - you cannot require services.
And - not only Rep. Fattah did not consent to withdrawal of attorneys whom he did not pay for 5 months, but he adamantly claimed that criminal defense - and paying his criminal defense attorneys - is not his highest priority, and that instead, his highest priority is investment in re-election (remember, he got re-elected every 2 years since 1994?):
Now, what basis did Judge Bartle III provide for allowing Rep. Fattah to force attorneys he did not pay for 5 months to provide more unpaid services?
None other than "we got too far in this litigation", and "they (attorneys) knew the risk of exposure to not being paid".
So what?
Normally, if you are not being paid, you
(1) stop providing more services (that is Loss Mitigation from Contracts 101) and
(2) sue the sucker for breach of contract.
The claim that an attorney is in a "fiduciary" relationship (with an extremely sophisticated client with a Masters degree in Government Administration and 12 years of service as a legislator), and for that reason, cannot break away from a non-paying client who did not pay for 5 months, and is not going to pay for at least 3 more months, makes absolutely no sense, not in law, and not as a matter of common sense.
To work for 8 months or more without pay?
Will you?
Does the prosecutor in the same case work or will work on such conditions? Of course, not. He will quit if his paycheck is delayed.
Only criminal defense attorneys are "blessed" with such slave-owning tactics by judges, both federal and state.
had a similar experience with NY Acting Supreme Court Justice Judge John F. Lambert who ordered me to provide free representation in a divorce trial despite my client's adamant refusal to pay and evidence that she just outfitted a 16-bedroom bed-and-breakfast and thus has a very good ability to pay me.
Here is the bright-and-sunny Judge Lambert:
That is the same Judge Lambert who is also notorious in counting money in criminal defense attorneys' pockets by telling them that he knows how much they are being paid - and who is making them and their clients come to incessant and unnecessary conferences, to drain them financially before trial and force them into a plea for the benefit of his former boss, Otsego County District Attorney John Muehl, possibly because Lambert cannot count on Muehl to be sober for a full trial.
Of course, if Fattah's lawyers just sue Rep. Fattah for unjust enrichment, breach of contract and whatever else they can sue them for, the court might have to be forced to release them, to save itself the trouble of a re-trial after a reversal on appeal because of forced representation of attorneys who were suing their own client.
But - isn't the situation the same whether attorneys did or did not sue Rep. Fattah? Even if they did not sue him (yet), a cause of action against him for breach of contract has already accrued, which creates a huge conflict of interest preventing such a representation.
Or - will Judge Bartle III still order attorneys to represent Rep. Fattah even if they sue him?
Just to wield his power for the sake of wielding his power?
Once again, law students - take notice - you may well be consigned to slavery by a judge.
So, after graduation you'd better work only for the government. Your paychecks will then be guaranteed by us the "captive-cash-cow-taxpayers".
Wednesday, January 27, 2016
A complaint was filed with the Federal Trade Commission requesting to investigate and prosecute New York State and the U.S. District Court for the Northern District Court for violation of federal antitrust laws in regulation of attorneys
Monday, January 25, 2016
When unauthorized practice of law is required under the threat of criminal contempt of court
In many jurisdictions I find the following nonsensical rule:
when an attorney's law license is suspended or revoked, the attorney has to:
1) notify the courts, opposing counsel and now-former clients in pending litigation of his or her suspension (which makes sense), and, if the now-former clients do not appear within a certain time in those cases with new counsel, then
2) the suspended or disbarred attorney - an individual who has NO license to practice law (since the license is suspended or revoked) - is REQUIRED to make a motion to courts, on notice of all parties, asking the court to allow the person to withdraw from representation in the case. And, that motion must be made as if the suspended or disbarred attorney is now a party in the proceeding - which he or she never was to begin with. So, now the individual is forced to appear as a party in the proceeding.
Normally, there is a restricted number of ways how an individual or entity can become a party in a court proceeding.
In civil proceeding (I go by New York rules) a party can consent to be a party in court proceedings by:
1) commencing a lawsuit or;
2) intervening into an existing lawsuit;
or the party can be brought into a court proceeding involuntarily by
3) being sued by another party, or
4) by being interpled into the proceeding as a third party defendant.
In all of these four scenarios courts play no role and may not mandate an individual or entity to become a party in a court proceeding.
The rule does not describe which party the suspended or disbarred attorney should become when making a motion requesting the court to allow him/her to withdraw from the case.
So, the suspended attorney must ENTER the case AS A PARTY where he has never been a party and where he has been only an attorney representing a party (which representation ended by operation of law once his license was suspended), and then ask the civil trial court to allow him to LEAVE the case.
A mandate to make a motion to enter in order to be allowed to leave is crazy where:
1) an attorney has no personal stake in court cases where he represents clients, but is not a party;
2) thus appearing as a party when you are not a party is frivolous conduct and wasting scarce court resources;
3) making a motion entering a case as a party to withdraw as a party is crazy;
4) making a motion entering a case as a party to withdraw as an attorney after the attorney's license is already suspended is unauthorized practice of law - and is crazy.
The rule is even crazier when applied to criminal cases where only two sides are allowed - the People (the prosecutor) and the criminal defendant.
Which "party" is the suspended attorney supposed to be on motion in criminal cases?
It appears that courts do not give much thought to rules regarding suspended or disbarred attorneys, because these rules are meant to scare, and, thus, apparently, do not have to make sense.
I understand the need for greed - having a suspended attorney add to state coffers by having to file motions in every case and pay filing fees in all courts, but let's get real.
An individual who is PROHIBITED to practice law, is REQUIRED to practice law (make a motion on behalf of another) in order to be allowed to comply with the court order that prohibits him to practice law.
And, if the individual does not comply with this rule forcing him to commit a crime of UPL, he or she is then exposed to another criminal prosecution, now for contempt of the court order of suspension or disbarment.
So, if the order of suspension is not enough to stop legal services in all court cases by operation of law, and additional motions are required in all cases separately, then the orders of suspension are not valid final orders, and it is the lower court and not the appellate courts who are the true regulators of attorney licenses - which is not what regulating statutes say.
And, if the order of suspension is not enough to stop an suspended attorney's authority to practice law on behalf clients, and additional decisions on motions, by multiple lower courts, in every single case the suspended lawyer has are required - then the order of suspension is not lawful, and the suspended attorney is not chargeable for contempt of court for violating such an unlawful and insufficient order.
On the other hand, if orders of suspension and disbarment are lawful - states and federal jurisdictions are violating suspended and disbarred attorneys elementary due process rights by REQUIRING them to VIOLATE THE LAW (UPL) as a condition of complying with a court order of suspension that prohibits them to practice law.
This rule which - the polite way to say it - lacks any rational basis, or, to put it bluntly, is simply raving crazy, is present in many post-suspension rules in many jurisdictions, state and federal.
So, if you are a suspended or disbarred attorney, the state requires you, for protection of the public no less, to violate criminal law in order to comply with it.
If the judiciary cannot make rules for regulation of the legal profession that are not looney, how can they make any day-by-day decisions at all?
On dangers of humility
Now I would like to separately stress the issue that a suspended attorney actually inflicted these 19 unconstitutional rules upon himself - and upon every other suspended attorney in that district - by making a motion ASKING the court to determine his status, rights and obligations as a suspended attorney.
We are dealing with notice of prohibited conduct prosecutable as two different crimes - unauthorized practice of law and contempt of court.
And, we are talking about federal court.
And, criminal conduct, whether under state law and federal law, is statutory - not provided by judicial rules.
So, notice of prohibited conduct should also come in advance - and only through a statute.
And if there is no statute that would give a person (a member of the public who never had a law license, or a suspended or disbarred attorney) notice of (1) what is the practice of law and (2) what is unauthorized practice of law - once again, in advance, by statute - then, there is no such notice, and people are simply not prosecutable for unauthorized practice of law or contempt of court (for violation of orders of suspension or disbarment).
Yet, many jurisdictions put notice in criminal proceedings in regards to the specific crimes regarding the practice of law on its head.
Now, an individual who MIGHT THINK that his or her actions MAY violate the unclear statute - should themselves file motions with the court asking the court to give them such notice that will be binding on them personally.
That is - instead of engaging in such conduct up front or, if there is a fear of criminal prosecution, filing a pre-enforcement constitutional challenge to the vague UPL laws.
The more such challenges will be brought, the faster the regulatory scheme built on the sand of "nobody-can-define-what-it-is-but-it-is-still-prohibited-without-a-license" will fall.
Asking a court to legislate from the bench and give you an advance notice of what the criminal statute does not define is the type of humility that does disservice to people who bring such motions, and to the community at large who will be then hounded with the 19-piece wonder like I described yesterday.
Notice of criminal conduct is given:
- through a statute only (prohibition against legislating from the bench, separation of power, for federal judges - Article III limitations);
- by the Legislature only, and
- in advance of the actual conduct only (ex post facto clause of the U.S. Constitution);
- and through a statute that is constitutional.
If notice of prohibited conduct is not given by the government to all members of the public in the above way, there is no legally valid notice, and there can be no criminal prosecution.
Sunday, January 24, 2016
The elite of New York lawyers is very afraid of increasing availability of information about the law and lawyers to the public
The Chief Administrative Judge of NYS courts, Judge Markes, already addressed that upcoming meeting and expressed his happiness for judicial pay raises.
The pay raises that NYSBA lobbied for.
Just on January 21, 2016, New York got a new Chief Judge - Janet DiFiore, a person with a reported history of corruption and criminal misconduct.
DiFiore's advancement was similarly lobbied by NYSBA.
Yet, will NYSBA be able to collect on those favors from the judiciary in stalling or preventing the big change that is coming to the legal profession, the continuous un-bundling of the "advice" portion from the "information" portion of services of NYSBA members, where paying customers increasingly prefer to buy cheaper information online rather than expensive advice from licensed attorneys?
NYSBA obviously feels the death-breath of un-bundling deflating its sails - and called attorneys to arms in an unprecedented and grossly uncivilized assault on competitor information services by its president, David Miranda in his address to the to the annual meeting of NYSBA:
- attorney ranking services (such as AVVO and others);
- form and "how to represent yourself" book-selling authors and businesses such as NOLO, LegalZoom and others
- "We must encourage a thoughtful focus on the future of our profession".
Whose thoughtful focus?
Authorities? Which authorities?
Naturally, authorities regulating attorney licensing?
Those same authorities who just got two boons - a corrupt top judge known to work through connections rather than to uphold the law, and increased judicial salaries, both lobbied by Mr. Miranda's trade organizations, NYSBA?
And just what Mr. Miranda suggests to be the object of that "thoughtful focus"?
Competition, of course:
- "online services that promise to find clients using questionable methodologies" - meaning, of course, not the usual way to find large and rich clients - through connections, favors to connected businesses and public officials - but straightforward merit-based ranking of attorneys. The horror!
- "or worse, standing by while websites promise to do all legal work for consumers, without sharing the credentials of their so-called legal practitioners".
The hint about "websites" that "promise to do all legal work for consumers" appear to be a reference to computer software using which a customer can fill in a form and produce a legal document (contract, deed, a certain form of pleading) without paying an attorney.
And, concealing the names of "legal practitioners" is obviously a barb aimed at such organizations as LegalZoom and Nolo that may not necessarily reveal who authored their form - because they do not provide a legal service, providing a form is not practicing law, there is no attorney-client relationship formed, and no need to reveal the names of "legal practitioners".
Mr. Miranda also seems to be unhappy about independent lawyer-ranking services that are not in the pocket of legal elite and may undermine the perfect scored the legal elite is given by entrenched ranking systems that do not consider consumer complaints if they are not acted upon by disciplinary authorities (when disciplinary authorities are private connected attorneys acted as "state disciplinary boards").
There is also clear envy in Mr. Miranda's lamenting that venture capital is going not to legal firms, but to consumer information and lawyer ranking businesses:
"Venture capital is going to these companies, seeking to make money on the backs of lawyers desperate for work and a public starving for easy answers".
I bet it took a lot of time to craft this masterpiece of double-speak.
So, we have 3 culprits in why the bad changes are coming to the legal profession:
1) the greedy venture capitalists who want to make a buck;
2) the desperate-for-work lawyers;
3) the public starving for easy answers.
But, wait a second, why lawyers would be desperate for work? The market of paid legal services is shrinking? So, lawyers agree to work as non-lawyers, as ghost-writers of forms for Nolo and LegalZoom? Indeed.com is full of such job offers, by the way.
So, Mr. Miranda acknowledges that there are actually lawyers out there who are "desperate for work". So, something needs to be changed in the market of legal services? Maybe, there is an overproduction of lawyers? Or, maybe, services of lawyers are overpriced? Or, maybe, the public needs sometimes not advice, but just a form to fill? Or, maybe, lawyers do not use enough innovation to promote their non-legal additional services (like form-selling) - as Nolo and LegalZoom are doing?
So, to address all of issues in the market of legal services, the only solution is to direct "a thoughtful focus" on those culprits? And to do what? Fight Nolo, LegalZoom, ghost-writing lawyers and the public that is "starved for easy answers"?
Note how Mr. Miranda bad-mouthes the very consumers of legal services, the public, that attorney regulation is declared to be protecting.
For Mr. Miranda, anybody who does not bring a hefty fee to him, but who instead pays Nolo or LegalZoom for a form, are people with primitive thinking who are "starved for easy answers". What a disdain to people who may not be able to afford Mr. Miranda's fee and resort to self-representation and forms precisely as a result of Mr. Miranda's lobbying!
At the same time, Mr. Miranda laments the fate of those clueless consumers who are allegedly duped by the new attorney ranking systems (which are suspicious to Mr. Miranda only because they are not under control of the legal elite).
Look how Mr. Miranda addresses innovation in providing information to consumers (that may very well lead to deregulation of the legal profession):
"While these services refer to themselves as innovators, they may be subverting the very premise of the profession they claim to be promoting".
First, form-selling, "how-to" book-selling and attorney-ranking services are not promoting the legal profession, they are separate consumer-information businesses.
Second, Mr. Miranda once again engages in his "say a lot, but say nothing" technique and does not disclose what exactly is the "very premise of the profession" that the culprits "may be subverting".
Then comes the moment of truth.
It appears that being on top of attorneys TRADE association went to Mr. Miranda's head and gave rise to a mania of grandeur:
"For our system of law to maintain its integrity, and its authority, the organized bar must be a part of the solution".
By the way, in New York, NYSBA is a voluntary non-profit, is not the official part of attorney regulation system, and does not have to be a "part of the solution".
Mr. Miranda provides no grounds whatsoever for his claims that the whole system of law in New York, established by its sovereign, the People, has no chance to:
1) maintain its integrity, or even
2) to maintain its authority -
if it does not involve as "part of the solution" a non-profit trade organization.
This "me and my clan as center of universe" argument is quite morbid, and, probably, more than anything, shows that the "organized bar" needs to be surgically removed, as a financially interested party, from participation in discussing or providing "solutions" to a regulatory scheme that exists (as it is declared) only and exclusively for the benefit of consumers of legal services.
Mr. Miranda carries on, like a runaway train, that
"we [I understand - the NYSBA, T.N.] cannot leave the job of informing the public and addressing its legal problems
to companies, staffed and funded by nonlawyers, that have only a financial stake in the transaction".
Ok, ok, Mr. Miranda, when we are talking about "jobs", you first need to be hired for a job, isn't it true?
When a customer does not need your services consisting of ADVICE, and instead prefers to buy services of a non-lawyer consisting of INFORMATION - about the law, and about your skills as a lawyer - you have no control how that customer spends his own money. Right?
And since those culprit "companies, staffed and funded by nonlawyers" (the horror!) and that have "only" a financial stake in the transaction - sell only information, and not legal ADVICE, their actions are quite lawful. Right? And you have absolutely no grounds to interfere. Right? And having "only" a financial stake in doing your work right is not such a bad thing. After all, you, Mr. Miranda, buy a lot of goods and services from people who "only" have financial stakes in doing their work right.
Also, what about such an intangible thing as conscience, Mr. Miranda?
You do not believe in it?
You only believe that services will be of high quality if done under the axe of disciplinary rules?
That belief is based on your knowledge of your brethren in the legal profession?
Well, there are professionals out there who take pride in what they do, Mr. Miranda, and also there is word-of-mouth, through social media, too - that will quickly eliminate the bad apples from any profession. Isn't that exactly what you are afraid of when you are calling you brethren to "address through thoughful focus" independent attorney-ranking services?
Mr. Miranda outdid himself in the last chord of his "squash them before they squash us" speech.
He claims that it is the public, the consumers of legal services who lose the most by "reducing the law to an easy download with no guidance". Nothing like a sales puff of a provider of a more expensive service to get to the pocket of a customer by badmouthing a cheaper service.
And, a sales puff made based on decades of self-indoctrinated belief that a customer cannot inform himself and cannot get INFORMATION from anybody but from those who also provides ADVICE based on that information.
Mr. Miranda, information and advice have been unbundled and went their different ways - information about the law, book-selling and form-selling went into the market of information, legal advice belongs in a separate and distinct market of legal services.
It is the market of legal advice that encroached upon and fed off the market of information about the law, and not vice versa - by bundling information into the fees for legal advice, at the much-higher cost of legal advice, while information can be sold separately from advice, and at a much lower price.
There is no monopoly on INFORMATION in this country, Mr. Miranda, especially in regards to such PUBLIC INFORMATION as the law. The right to dispense public information is guaranteed by the 1st Amendment, and that right exists whether that information is distributed freely or for a fee. As an attorney sworn to protect the U.S. Constitution, Mr. Miranda is bound to remember that. Of course, self-interest can cloud anybody's judgment, but why would anybody so openly be making a fool of himself...
Claiming that information must necessarily be bundled with - and sold together with - "guidance" (legal advice, at a higher price, by providers with a monopoly for such advice) - puts Mr. Miranda and NYSBA that Mr. Miranda leads - in the same company as Louisiana funeral directors found themselves when they fought unbundled sales of simple coffins by monks, without additional cemetery plots, embalming or funeral services.
And that company, Mr. Miranda, is the company of losers.
The Change is coming to the legal profession - in this Mr. Miranda is right.
That change cannot be diverted or filibustered by forcing people to bring money to Mr. Miranda and NYSBA members when they only want cheap infomation and not expensive "guidance".
And, whoever continues to try to prevent that market-induced change by insisting to sit on two chairs that shift in two opposite directions, and to hold those two chairs together with his rear end - will eventually find himself sitting on the floor.
If you care for the justice system - take from the poor and give the rich
Salary increases from the "meager" $173,000 per year to nearly $200,000 per year, with benefits for the judge and his entire family.
At the time when New York taxapayers get, on average, around $52,000 per year.
$173,000 was not enough to attract "quality" judges.
As we all know, state budget is limited, and New York is going through an ongoing budgetary crisis, so, very likely, some programs for poor litigants will not be funded at all, or as well as they could have been in order to make this salary increases for judges possible.
To bridge the "justice gap", pay the rich more by taking it from the poor.
And if you are against it - you do not care about the justice system.
Just ask Judge Marks.