NYS Statewide Commission for attorney discipline posted a report

Yesterday, on September 24, 2015, the New York State Statewide Commission for attorney discipline posted its official Report and Recommendations.

I must add that while it did that, New York State Court Administration is stalling my FOIL request for copies of affidavits of members of the public who were not invited to testify and upon which the Commission relied in addition to the transcripts of public hearings.  They stall my FOIL request even after telling the public that all submissions to the Commission were subject to the Freedom of Information Law.  

I guess, it is unrealistic and naive to expect fairness - or even following the law - by Commission on fairness handled by lawyers.

The report is a 97-page document and requires thorough review before I start posting my impressions from the report.

I will review it over the weekend and will post my analysis shortly.

Please, also note that until and unless I am provided all written submissions to the Commission that I asked in my FOIL request - which is currently being stalled by the NYS Court Administration - any analysis that I make of the Report will be preliminary, tentative and incomplete, because I am not able to see what was and what was not considered by the Commission from the important issues raised before it, as well as whose arguments the Commission considered and whose arguments the Commission ignored.

As I said, I will start posting my preliminary analysis, issue by issue, next week, and will continue to pressure NYS Court Administration to release to me copies of written submissions to the Commission.

Stay tuned.

On legal research

When I was in law school, we were mainly taught on decisions of appellate courts.

I understand the value of appellate court decisions that have precedential value for purposes of teaching, yet, such method overlooks the bulk of the body of law in this country, and, most importantly, the bulk of arguments submitted to the court.  And that is a shame.

I also understand time and expense constraints in legal education.  

Yet, I suggest that it would be helpful if professors would at least point out to students that only a negligible handful of decisions get appealed, even less favorably decided by intermediate appellate courts, and only a speck of decisions are made by the U.S. Supreme Court, and that the U.S. Supreme Court mostly tosses petitions for writs of certiorari, including meritorious ones that do not present "circuit splits".

It would be also helpful if law students, in addition to be hooked up by law schools to free Westlaw and LexisNexis - which will be far from free once they graduate - are given information as to how to find valuable arguments and caselaw that constitute the cutting edge of the law, and that is not in the scanty appellate decisions and decisions of the U.S. Supreme Court.

And that source is pleadings submitted to trial courts, appellate briefs and petitions for the writs of certiorari to the U.S. Supreme Court.

Knowing that this may be their last chance to resolve the case (for many litigants, the trial/motion stage is the last chance, because they will not afford legal representation at the next, appellate stage), a lot of effort is often going in presentation of arguments at the trial/motion level, and at the intermediate appellate level, and these arguments are almost entirely overlooked in legal research done the way taught in law school.

Yet, it is relatively easy to do this type of research, as documents subject to research are public records that must be made available to review of the public without a fee.  A fee is only charged if you ask for a copy of the document, and you won't necessarily need a copy of the entire document, you only need to glimpse the arguments and the law cited in support of the arguments.

Many courts in New York (where I practice) are scanning their decisions and all pleadings filed with the court.

Pleadings in support of motions are a good source of research.  After all, a lot of courts simply skip certain important arguments for reasons unrelated to their merits.

It is, perhaps, more difficult to obtain copies of appellant's briefs in New York.  In the NYS Supreme Court, Appellate Division, 3rd Department, for example, you need to make an appointment to look at appellant's briefs in certain cases, and sometimes I see the record on appeal sent back after the appeal is decided to the lower court, so you will need to track where such appellant's briefs went.

One easy and valuable research resource is Pacer.gov.

Pacer.gov is a federal public information source containing all court filings in all federal courts which are not under seal, and most of them are not.

One needs to pay to use Pacer, but Pacer only charges 10 cents per page, often does not charge for more than 30 pages, even if the document you are getting is much longer, and often does not charge anything for copies of actual original court decisions.

If you are a civil rights plaintiff suing a state governmental official (let's say, the Governor), you can first do research on the Internet as to the name of the Governor, the name of the Governor's predecessors, when did the Governor first take the office, and then run a search on Pacer in federal district courts in your state of prior lawsuits on Pacer for the Governor's name as a party and, if the Governor is newly elected, for the names of the previous Governors as parties in litigation.

If you have problems with violation of your constitutional rights, most likely, you are not alone in it, and other people had similar problems before you.

After I started to do this type of legal research, and compared as to how much the mainstream media is covering the actual lawsuits filed, litigated, dismissed or resolved - by settlement or trial - it became clear to me that the mainstream media (and often, social media, too), does not cover the majority of interesting cases and issues.

So, you will not learn about these litigated lawsuits from the media.

And, even if you do learn about court decisions (final decisions) on Westlaw or LexisNexis, usual packages for sole practitioners do not include appellate and motion briefs, the most valuable source of arguments and citations.

In order to understand what you may be missing in foregoing research through pleadings, I encourage you to invest several dollars into downloading from Pacer.gov a decision in a certain civil rights case from a federal court, on a motion to dismiss or a motion for a summary judgment or judgment on the pleadings, the motion papers that have led to the decision, and the complaint (initiating document for the lawsuit) that the motion papers addressed.

What is good about Pacer is that, for each federal court case, it provides a "docket sheet", in HTML or PDF format, where every filing in every civil rights case is made public record, is shown and is clickable and retrievable by any member of the public, lawyer or not.

You may be surprised to discover, after comparing:

• the initiating complaint;
• motion papers addressing the complaint;
• the court's decision on motion papers

 that the deciding court did something incorrectly, and that certain valuable parts of the complaint or of legal argument were overlooked or incorrectly reflected in the ultimate court's decision, and that certain law and precedent could be incorrectly applied by the court, as compared to how it was applied in the precedents cited in the memorandums of law supporting motion pleadings.

In this type of research, one should, of course, consider whether certain arguments won on that issue or not, but that is not necessarily the end of decision-making as to whether to use that same argument in your case or not.

After all, we see social progress developing quite fast over the past couple of decades, and constitutional law, even though it often lags behind, is starting to pick up pace.

Only 15 years ago, homosexuality was a crime.

This past June, people across the country were celebrating the right to gay marriage in the streets.  That is quite a progress, and a yesterday's losing argument buried somewhere in Pacer may be your winning argument of tomorrow.

Including pleadings into the scope of your research does not add much, if at all, to the time of research, does not add much to the expense of research and certainly provides for a richer body of research than is available if you restrict yourself only with appellate decisions.  

As to expense, it is much less expensive to research this way on Pacer than to do it on commercial databases that use Pacer resources anyway.  You are just cutting out the middleman and go to the direct source, at a much-reduced price.  

Also, Pacer.gov does not charge you by the hour, as commercial databases do, only for the documents you actually want to view - and, as I mentioned above, often provides certain documents for free or with capped costs (3 dollars max for a very large package of documents far exceeding the 30 pages charged in that 3-dollar price).

Remember that most cases are not appealed, most of appealed civil rights cases are resolved through "summary orders" on appeal without reaching substantive issues or doing any analysis, and the U.S. Supreme Court, statistically, takes only 70 something cases each year.  

So, an entire ocean of law and legal thought remains untapped and waiting for your research, and I encourage you not to foreclose that valuable research opportunity for yourself.  

Ways to address judicial misconduct

I would like to remind my readers of the fourth, the underused, way to address judicial misconduct - the criminal proceedings.

There are 4 ways to address judicial misconduct.

1/ A lawsuit against a judge.  Most lawsuits against judges are dismissed on the grounds of absolute judicial immunity.  Even though, in my opinion, the concept of absolute judicial immunity for malicious and corrupt acts on the bench, including deliberate constitutional violations, is unlawful and unconstitutional, courts religiously apply it, dismissing practically all lawsuits against judges.

There are restrictions to judicial immunity (declared restrictions), but they are not observed by courts.

Courts that created the concept of absolute judicial immunity for malicious and corrupt acts of the bench at the time the judge was performing his or her judicial duties, change that law on the go, to stretch it to apply to any situation that comes in front of them.  After all, by protecting a judge sued for misconduct in office, courts are protecting themselves, and self-interest outweighs all other considerations.

2/  A complaint to disciplinary authorities.  Absolute judicial immunity was given to judges because allegedly alternative remedies, such as discipline, are available.

Well, first of all, courts have ruled that citizens do not have "a justiciable interest" in prosecution or non-prosecution of anybody - be it:

*  criminal prosecution of private citizens;
* disciplinary prosecution of attorneys, or
* disciplinary prosecution of judges

If there is no justiciable interest, judicial discipline cannot be called a legitimate alternative remedy to a lawsuit.

Yet, this thought is so radical that most judges will reject it (remember, most judges are old conservative people who consider as frivolous and sanctionable anything that was not taught in their churches).  Of course, unless one tries, one will never know whether a certain theory will win in court.  But one must have courage to do that and be prepared for a backlash.  Judiciary does not yield its positions easily.

Also, complaints to judicial disciplinary authorities may be futile.  My experience with the State of New York Commission for Judicial Conduct, review of what is discussed in the social media, and my review of what happens with complaints to similar authorities in other states, suggests that the absolute majority of complaints against state judges are tossed.

And, federal courts do not have separate disciplinary authorities for judges.  They "police themselves", with predictable results - courts self-servingly created rules that prohibit even review of complaints about judicial misconduct on the bench, re-channeling such complaints through appeals only, even though the same courts dishonestly continue to toss civil rights lawsuits on judicial immunity grounds that presupposes availability of judicial discipline for misconduct in office, during court proceedings.

So, complaining about a judge, while needs to be done, as a due diligence step for the record, may achieve little, if anything, in the practical sense.

3/ An appeal.  With judges busy engaged in book-writing, all-expenses-paid trips, sitting on various boards and committees, they hardly have time to diligently review records, and allow most of decisions to be made, as it seems, to the student interns who draft those decisions.  Since student interns have no experience in life or law, and draft to certain policy guidelines from judges, and those policy guidelines apparently presuppose tossing any claims of judicial bias and misconduct, not to create a precedent that can bite the judge who created it right back, chances to win against a bias judge on appeal are nil.

4/ Yet, nobody cancelled shaming, requests for a criminal prosecution of a judge involved in misrepresenting court records and colluding with politically connected attorneys, and more shaming on social media.

Judges are sensitive to criticism.  They may not allow cameras in the courtroom in order to be able to catch their misconduct live, but they are afraid to lose votes and donors in the next re-election campaign if they are shamed in the social media too much.

And, there is no immunity from criminal prosecution.

And, if criminal authorities refuse to prosecute, criminal prosecutors are also sensitive to lose votes and campaign donors, even more than judges (because prosecutor's terms in office are shorter than judicial terms in office) and are also sensitive to shaming in the media.

So, where all other areas to bring about judicial accountability are blocked, and we need to bring about changes now and address specific cases of judicial misconduct now, criminal complaints against judges accompanied by shaming of proven misconduct in the media may help a lot.

You only need a lot of courage to do that.  Judges are a vengeful and powerful bunch.  Yet, the power of the social media is that, once you start publishing your instances of judicial misconduct, other people may publish theirs, and you will then know what you will not otherwise learn from the Commissions for Judicial Conduct, because there complaints about a judge are secret.

And, the more meritorious complaints are brought against the same judge on the same recurring issues of misconduct by different people in different cases, the more likely it is that authorities will wake up and take action.

You know, there is a saying "little strokes fell great oaks".  So, let's try and clean up the dirty black robes.  One by one.  Bit by bit.  Nobody will do it for us.

Kathleen Kane as an involuntary Kim Davis and the role of criminal cartels in democratic process

Ok, so millions of voters in the State of Pennsylvania voted to put in office the State Attorney General, Kathleen Kane.

Then, Pennsylvania Supreme Court, consisting exclusively of licensed attorneys, and based on behind-the-doors proceedings conducted by a cartel of attorney-dominated disciplinary committee appointed by that same court, "temporarily" suspended Kathleen Kane's law license, with a delay of suspension for 30 days -

• at the time when Kathleen Kane was very publicly fighting corruption in the ranks of state prosecutors, the ultimate "old boys' club" and the ultimate judicial career path, when majority of judges (in all states) come from prosecutors;
• at the time when Kathleen Kane was indicted under the circumstances suggesting retaliation against her by the old boys club for doing her job and attempting to eradicate prosecutorial misconduct;
• at the time when Kathleen Kane 
• publicly announced she is innocent of the charges, 
• continues to fight the charges and 
• refused to resign as the State Attorney General
• at the time when the U.S. Supreme Court has ruled, as of February this year, that licensee-run disciplinary boards are run in violation of federal antitrust laws, which means that such operations of disciplinary proceedings are the same as operation of criminal cartels, and Pennsylvania Supreme Court since then defied that order and made no changes in the attorney-dominated disciplinary committees;
• at the time when Kathleen Kane argued to that same court that suspension of her law license will circumvent specific state constitutional provisions for her removal from office;
• at the time when Pennsylvania public engaged in an unprecedented campaign, signing a petition not to suspend Kathleen Kane's law license.

Now, considering that Kathleen Kane was recently asked, together with other State AGs, by a consumer union and its representative, a former federal antitrust prosecutor, to see that attorney disciplinary proceedings comply with the new U.S. Supreme Court decision of February 25, 2015, it is interesting that the disciplinary committee that was supposed to be disbanded or reformed in compliance with that decision that has won the race to disband her as their prosecutor before she as the prosecutor disbanded the disciplinary committee, following federal law.

Now, Kathleen Kane is in an "involuntary Kim Davis" kind of situation.

Kim Davis willfully refuses to do her duties, and instead, her deputies have to discharge them, while Kim Davis keeps drawing her salary for refusing to do her duties.

Kathleen Kane, after her license was suspended (she's got a 30-day stay of suspension) will be able to do only those duties of her office (if such duties still remain) that do not involve the practice of law.

And, the courageous woman continues to refuse to resign from the office for which millions of voters in Pennsylvania have chosen her despite the unprecedented pressure from the old boys' club.

Imagine, an Attorney General cannot practice law.

An easy way for the subjects of potential prosecution to eliminate their own prosecutor, isn't it?

So, while Kathleen Kane refused to resign, the old boys' club devised a way to remove her from office through the disciplinary proceedings, which does not involve the voters, or their elected representatives, and which actually FORCE the hand of the voters' public representatives, because the legislature might have no choice but remove Kathleen Kane from office (or change the law requiring that State Attorney General must be a "member of the bar in good standing").

Because, if the "bar" is run as a criminal cartel, and members of the bar in good standing are removed from that good standing because they want to end the criminal cartel, following their duties, then it is the criminal cartel's actions and not of those who want to eliminate it, should be addressed by the government.

Which brings us to the next issues.

In New York, multiple witnesses in the Statewide Commission for Attorney Discipline raised the issue that New York is second only to Texas in the number of wrongful convictions, but prosecutors responsible for those thousands of convictions were never disciplined (and, I am sure, some of them are now judges, because the DA's office is a sure career part to become a judge in New York, as it is in other states and at the federal level).

New York Legislature is considering Bill S24 to institute a Commission on Prosecutorial Conduct.

Now, in view of what happened to Kathleen Kane, let us, as the sovereign in this country, the People, consider the implications of having laws:

• that require that certain public officials must be licensed attorneys;
• giving immunity to such public officials from prosecution by members of the public through civil rights lawsuits;
• having no effective mechanisms of discipline of those public officials for their real misconduct in office

On the one hand, it is grossly unfair - and unconstitutional - to have an elected public official who is actually doing her job and fighting misconduct and corruption in the ranks of the organization she is heading to be removed from office not by the voters, not by the legislature, not following constitutional procedures of impeachment, but by the back-room dealings of a  criminal cartel that was faster to remove her than she removed them.

On the other hand, what remedies do we have against rampant prosecutorial misconduct when it occurs?

Remedies are suggested by:

• Kathleen Kane's conduct in pursuing prosecutorial misconduct, 
• the U.S. Supreme Court decision of February 25, 2015 and 
• a recently-decided 2nd Circuit case refusing to grant immunity to prosecutors for presentation of fabricated evidence to the Grand Jury.

FIRST PROPOSAL.

The State Attorney General must be charged ONLY with a statutory duty to PROSECUTE misconduct in the government, not to DEFEND it against plaintiffs in civil rights action, which is what is happening every day in federal courts.  If you think about it, the Supreme Court eliminated the law license of ITS OWN COUNSEL IN FEDERAL CIVIL RIGHTS LITIGATION - as did the disciplinary committee.

It is clearly visible that the two hats worn by State Attorneys General, defending the same misconduct  of public officials in federal civil rights actions as they are supposed to prosecute, are completely incompatible.

The government can hire court representatives to represent them in a civil rights lawsuit, as do other litigants, and those court representatives should not be the government's own prosecutors, because such a situation constitutes an ongoing bribing situation.

When the government/client of a State Attorney General is also holding her license and livelihood in their hands, as it is with disciplinary committees and the licensing courts, the conflict of interest gets even worse.

Now the State Attorney General not only has to pick and choose 

• whether to defend or prosecute her own clients for the same conduct;
• whether to violate the attorney-client privilege rule by prosecuting her own clients for what may be covered under that privilege;
• but also to be in fear of losing her own law license, reputation and livelihood if he/she dares to prosecute instead of defend misconduct in the government - because her livelihood and reputation can be stripped by her own client, no malpractice lawsuits or arbitration necessary

Such conflicts of interest and such bases for fear in the State Attorneys General for their own law licenses must be eliminated.

How?

SECOND PROPOSAL

Laws must be abolished that expose elected public officials to arbitrary removal from office by interest groups without any input from the public.

Laws must be abolished that require that

• an Attorney General;
• a judge

any other public official - absolutely must be a "member of the bar in good standing".

The requirement that elected public officials must have law licenses (where licensing is regulated secretly by private interests) is an extraordinary requirement that hurts the democracy in this country, as Kathleen Kane's license suspension just demonstrated.

But, what to do with discipline of public officials?

THIRD PROPOSAL

Very easy.

1. Make the terms in office short.  Do not allow people to become entrenched and form cliques.
2. Create financial disincentives for public service, so that incompetents who cannot survive in private practice do not go into the government to get a cushy pension with benefits, as it happens now.
3. Make public service similar to a jury duty - a duty, rotational, short and not compensated, the than for travel and lunch expenses.  It will eliminate a lot of corruption in the government, if not its major part.
4. Make prosecution and adjudication blind - so that prosecutors and judges bring and decide cases, without having an opportunity to know identity of the litigants.  There are technological mechanisms in our modern society to make that happen. 
5. Establish a direct right of citizens to convene and address grand juries to address official misconduct through criminal proceedings.
6. Eliminate immunities from civil lawsuits for fraudulent and malicious conduct of public officials in office.

You may disagree with my proposals.

But, Kathleen Kane's case shows that, at the very least, changes must be considered and made in, at the same time, ensuring effective mechanisms of accountability of public officials for misconduct in office and for removal of conditions that a public official must satisfy, other than his or her constitutional oath of office, to be able to serve the public.  

And my proposals are simply my contribution to the much-needed public discussion of what changes need to be done to preserve this country as a democracy.

An appeal was filed in the 2nd Circuit requesting sanctions against the creator and members of the New York Statewide Commission for frivolous conduct for maintaining positions in litigation inconsistent with positions as creators and members of the Statewide Commission

My husband Frederick J. Neroni filed an appeal yesterday with the U.S. Court of Appeals for the 2nd Circuit in a case Neroni v Zayas, Case No. 15-2030.

He gave me permission to publish it, and I will today, as soon as I find a way to upload the file.  The Blogger platform does not directly provide for it, and I am not that computer savvy, so, please, bear with me.

I will post the most important points of the appeal, issue by issue.

My husband raises the following important issues in his appeal (among others, there are many important issues that he raises):

1. practice of law cannot be constitutionally regulated by the government when the government did not provide a clear definition as to what practice of law is;
2. criminal prosecution for unauthorized practice of law (UPL) cannot constitutionally be done by the government when the government did not clearly define what the practice of law is, so that the public has a clear advance notice of prohibited conduct;
3. case-by-case prosecutions for UPL where courts determine after the fact what conduct does or does not qualify as UPL are in violation of the Due Process/lack of notice, Bill of Attainder and Ex Post Facto Clauses of the U.S. Constitution;
4. attorneys in New York are not given ANY judicial review of revocation of their law licenses (a due process right in one's livelihood) because:
1. the nature of attorney disciplinary proceedings is administrative and not judicial, even if it is handled by a court as a license-issuing and license-revoking administrative body; 
2. all other proceedings to revoke occupational licenses in New York, other than law licenses, are administrative in nature;
3. combination in the disciplinary court of legislative, prosecutorial and adjudicative functions, and lack of discovery and other procedural protections define attorney disciplinary proceedings as administrative in nature
4. individuals in New York whose occupational licenses were revoked for administrative bodies, have a right to bring a court challenge of such a license revocation through an Article 78 against the licensing body from the trial-level court up through two levels of appeal.  No judicial review of law license revocation is allowed, and that is an equal protection problem.

As an important point, my husband requested the U.S. Court of Appeals for the 2nd Circuit to impose sanctions for frivolous conduct upon the following parties in the appeal and their attorneys, New York State Attorney General Eric T. Schneiderman (also a Defendant-Appellee in the action) and the attorney of record Barbara Underwood:

1.  Defendant Lippman obtained a dismissal of Mr. Neroni's challenge that Mr. Lippman's rules of attorney regulation are unconstitutional because of, among other things, lack of uniformity across 4 departments and lack of fairness in license revocation proceedings governed by court-created rules.  Then, Mr. Lippman, without notification of the federal courts, on the trial or appellate level, changed his position by creating and running a Statewide Commission for Attorney Discipline which is charged with a goal to verify how to make attorney disciplinary proceedings more uniform and fair to the disciplined attorneys.  Such a position, in Mr. Neroni's view (which I share) is inconsistent with Defendant Lippman's position in litigation.  Defendant/attorney of record Schneiderman did not disclose the change of position to the federal court, which constitutes frivolous conduct.

2. Defendant Monica Duffy (3rd Department disciplinary Committee) and Karen Peters (3rd Department Chief Judge) are members of the Commission.  They similarly obtained a dismissal of Mr. Neroni's challenge to the rules created by the 3rd Department and applied by the 3rd Department Committee in attorney disciplinary proceedings that Mr. Neroni challenges, as well as engaged in post-disbarment investigations of Mr. Neroni and blocked Mr. Neroni's access to the file.  At the same time, the court and the Committee participate in the Lippman's Commission for Attorney Discipline as members (counsel for Peters, deputy clerk of Peter's court and Monica Duffy herself are members of the Commission).

3. Defendant Dean Skelos/NYS Senate obtained a dismissal of issues such as lack of proper statutory scheme for attorney discipline and the resulting selective non-enforcement of attorney discipline in attorney disciplinary proceedings, and then is reviewing a Bill S24 designed to create a separate Commission on Prosecutorial Misconduct, which Commission would be clearly not necessary had the disciplinary committee not been engaged in selective non-enforcement of attorney discipline against prosecutors.  Such a change of position is inconsistent with NYS Senate's position in litigation in Neroni v Zayas, change of position is not disclosed to the federal trial/motion and appellate courts, and continued opposition of Mr. Neroni's appeal by Defendant NY Senate, same as by other above described defendants, in view of their material change of position to positions aligned with Mr. Neroni's arguments, is frivolous, sanctionable and should be sanctioned by the appellate court.

4.  Defendants did not notify the court of the change of applicable law that was disfavorable to their position and requires reconsideration of the court's dismissal of Mr. Neroni's constitutional challenges.

(1) The district court dismissed in March of 2014 Mr. Neroni's challenge to the anticompetitive composition of disciplinary committees defined by the adjudicating court.

In February of 2015 the U.S. Supreme Court confirmed the anticompetitive nature of composition of licensing boards run by supermajorities of licensees and ruled that such composition is also in violation of federal antitrust laws (i.e. a federal crime) and strips members of such disciplinary committees from immunity in civil lawsuits for antitrust violations.

Attorney's organizations fought that decision before it was made through amicus briefs (unsuccessfully), and state authorities defied it after it was made.

Even though in February of 2015 Mr. Neroni's action was still pending in the court below, Defendants made no effort to notify the court of the change of law that affected the litigation, which was their duty to do and which constituted frivolous and sanctionable conduct.

(2) The district court dismissed Mr. Neroni's pre-enforcement action as to possible UPL prosecutions claiming that Mr. Neroni's fear of prosecution for certain conduct is unfounded.

One day before the court's dismissal of the case, the 2nd Department Appellate Court made a determination repeating Mr. Neroni's fears/constitutional challenges practically word-for-word and ruling that engaging in services as a paralegal and law expert constitutes UPL.

With such a law on the books since June 3, 2015, Defendants continue to oppose Mr. Neroni's appeal of dismissal of his pre-enforcement challenge of possible UPL prosecution on exactly the same issues as the 2nd Department ruled constitute UPL.

Such non-disclosure and continued opposition to appeal is frivolous, sanctionable and should be sanctioned, as Mr. Neroni argued, and I agree.

Public officials cannot play Dr. Jeckil and Mr. Hide in one person all the time and play fast and loose with public trust.

They cannot continue to maintain diametrically opposite positions inside and outside of litigation.

That is frivolous, attorneys and parties are sanctioned for that, and government defendants and attorneys should be treated no differently.

I will inform the public as to what the 2nd Circuit says to Mr. Neroni's challenges on appeal.

Stay tuned.

Funny

I would like to restate funny points about my professional history as an attorney:

1.  In September of 2009, at the beginning of my professional career as a lawyer, I made a motion to recuse a judge, Judge Carl Becker of Delaware County Family Court, in a child neglect case of a client, where the judge was a fact-finder in a case brought by the Petitioner, the Delaware County Department of Social Services was Judge Becker's former client of 27 years and a personal friend. 

The case was quickly settled to my client's satisfaction, so that the motion did not have to be decided, but my husband and I were immediately charged with child neglect by Becker's friend, the recently retired Commissioner Moon.  At his quick retirement, Commissioner Moon was implicated in:

• improper supervision of the use of County vehicles by social services;
• having contracts granted to outside vendors without public bidding, including for Social Services;
• selling an elderly person's house using her power of attorney under the circumstances that were litigated in probate court later suggesting self-service and undue influence by Bill Moon's social worker who was under his direct supervision;
• self-dealing in County-foreclosed properties by using the fact that his wife had a different last name and bought up the County-foreclosed properties without detection.  She was detected earlier and made to return the properties she was caught buying up.

At the deposition we conducted of Commissioner Moon (I have the transcript), Commissioner Moon told me that charges would not have been brought "had you opened that door", meaning that my husband and I were charged in retaliation for not allowing an unauthorized search by social services of our home law office.

The prosecutor on the case was the now-County Attorney, now-judicial candidate Porter Kirkwood.

The only purpose that Mr. Kirkwood pursued is to have my child psychologically evaluated and labeled, while there was no legal basis to do that.

The reason why Mr. Kirkwood wanted it is that my child had a cause of action for assault and battery against his child who assaulted my child on school grounds, and the school looked the other way because of Mr. Kirkwood's status.

The case was ultimately dismissed, after 2 years of litigation, but we had to remove the child from the school and from the state of New York because of continued harassment that the school refused to control and, possibly, instigated - to the point of telling my child that somebody will kill his father (my husband) for his professional activity as an attorney, giving my child pictures with coffins and expressing to my child wishes that his parents will soon die of heart attacks.

The child neglect case was finally tossed after an over a year of litigation, the dismissing judge recognized that the case was incorrectly brought as a child neglect case, but had to be brought as PINs.  Meaning that Porter Kirkwood wanted to bring proceedings AGAINST MY CHILD, but obviated the necessity of constitutional protections FOR MY CHILD by bringing proceedings instead against us.  

This way, his personal need to have a witness against his son labeled and discredited and the personal need of his former boss and friend Carl Becker for retaliation were beautifully satisfied.

It did not happen.  The case was tossed, and it was tossed after, at the last day of trial, when Porter Kirkwood's expert was testifying, we did not even come to trial.

It tells a whole lot about the lawyers incompetence when a lawyer cannot win against two empty seats with all resourses of County taxpayers at his disposal.  An incompetent and corrupt lawyer will make a great judge, I am sure.

Porter Kirkwood had the audacity to appeal, and lost on appeal.

2.  In 2010, in another child neglect case for a client, in front of the same Judge Becker, I failed to make a motion to recuse Becker based on evidence of retaliation that I was personally experiencing at that time and was afraid will be visited upon my indigent client.

On an assigned appeal (my client was indigent), the appellate court has told me that I waived my client's right to raise the issue of judicial bias by not making a motion to recuse the judge in front of that same judge.

Here is what the Appellate Court said on the issue of Carl Becker's bias in favor of his own client of 27 years and friend Bill Moon, the Petitioner.

3.  Since Carl Becker recused from our child neglect case in 2009, he was supposed to recuse from all other cases.  He didn't.  Instead, after becoming an Acting Supreme Court Justice in 2011, he latched himself like glue to all cases where my husband or I were attorneys of record or parties, and viciously pursued us and our clients, despite irreconcilable conflicts of interest and bias well pronounced on the record.

In 2011, remembering the ruling of the appellate court that I will waive my client's rights to raise issues of judicial bias on appeal if I do not make a motion to recuse in the court below, 

I made two motions to recuse on behalf of clients.

Becker sanctioned me for making motions to recuse him and the very same appellate court that told me previously that I must make motions to recuse, or else I waive my client's right to raise judicial bias on appeal, prosecuted me for making those motions to recuse.

When that court (NYS Appellate Division 3rd Judicial Department) was sued for misconduct in Neroni v Peebles, it transferred my disciplinary case to another court, the 4th Department that was soon engaged in identical misconduct, and worse.

The 4th Department has so far:

• refused to give me reasoned decisions for denial of my constitutional arguments;
• punished me with an anti-filing injunction (without a hearing or notice) when I filed a motion to vacate, renew, reargue a no-reasons-given denial of my constitutional arguments;
• refused to open my disciplinary proceedings to the public, as was my constitutional right, after my waiver of privacy;
• taught my disciplinary prosecutors how to prosecute me better;
• refused to replace the referee that refused to obey the order of that same court requiring the referee to give me an evidentiary hearing;
• allowed the disciplinary committee to criminally prosecute/harass me for several months before dismissing the case sua sponte before it came to be heard at an initial hearing - which could be done at the time fabricated charges were filed;
• accepted a fabricated referee report based on fabricated transcripts, made without the required evidentiary hearing;
• held a closed to the public and the press (despite my requests to open the proceedings) secret premature "hearing in mitigation" (I did not attend since it was premature and illegal) before the evidentiary hearing was held and before a decision on liability was made by the court;
• refused to make a decision on my motions within 60 days of the returnable date, as required by court rules

The funny part is that the following rule of recusal in New York law can be discerned from my professional career as a lawyer:

• if you do not make a motion to recuse, you waive your client's rights to raise the issue of judicial bias on appeal;
• if you do make a motion to recuse, the system will retaliate against you (in my case, it was 
• a fabricated child neglect case;
• harassment of my very young child by social services, by police, by school officials, by schoolchildren without control from the school jeopardizing my child's safety and requiring my child's removal from the school and from the state;
• fabricated multi-thousand-dollar monetary sanctions by the judge whom I challenged on the motion to recuse;
• fabricated sanctions by other judges based on fabricated sanctions of the first judge as a "snowball" argument - if he sanctioned, then we will sanction, too, also for motions to recuse;
• fabricated disciplinary proceedings based on those fabricated sanctions; and 
• fabricated criminal proceedings based on those fabricated disciplinary proceedings based on the fabricated sanctions based on my motions to recuse that I had to make not to waive my clients' right to be able to raise the issue of judicial bias on appeal, as directed by an appellate court

Funny.

Criticism from the bushes continues - I guess, I said something right

I made three posts recently that caused an immediate reaction from the legal profession:

1) Post No. 1 the first post was on Amazon.com, criticizing U.S. Supreme Court Justice Stephen Breyer for writing books instead of doing his job, and for soliciting private funds for all-expenses-paid trips for his law clerks.  My review, under my real name, with a verified purchase of the book is at the Kindle Book page for the book "The Courts and The World") on Amazon.com

Since I gave the judge 1 star out of 5 for his book and that undermined his ratings at least somewhat, while he was vigorously advertising his book in the media (once again, instead of doing the job he is paid for out of taxpayers' pockets, mine included) the backlash immediately followed, in the way of nasty, personal and conclusory (no specifics) criticisms, and for the very first time in this blog's existence, critics came to the blog to post criticism here.

Which makes me believe that criticisms were caused by my review on Amazon.com, and my request to two U.S. Senators to impeach Judge Breyer and judges engaged in similar conduct.

2) Post No 2.  The second post was about the same topic that I reflected on Amazon.com, because Amazon.com deleted my links showing where evidence of Stephen Breyer's behavior that I was criticizing could be found, so I posted it on my blog;

3) Post No. 3.  The third post was my open request on Facebook to two Senators, with tagging of both of them, to impeach all federal judges who engage in practices that Justice Steven Breyer engaged in.

4) Post No. 4.  The fourth post, which was, I believe, the least cause of criticism, but which was used as the actual cause of criticism, was where I criticized the U.S. Supreme court for selective enforcement of judge-created (and thus unconstitutional) exceptions to federal jurisdiction that was not within the court's authority to make.

I had two critics whose appearance coincided with my posts regarding Justice Breyer.

They are both anonymous, both nasty and both fully or mainly conclusory (no specifics).

The second critic, I will start with the second, because that was a short criticism, was called "gypsysomething", accused me of being upset that Justice Breyer did not pick me for a law clerk, and the comment is nowhere to be found, somehow it disappeared.  My only response was that I want to see the face and identity of that critic.  Because if somebody engages in a nasty personal attacks, it helps to know who that person is to understand the reasons for the attack.  

The first critic, under the interesting name "Coyote Waits", keeps coming back, but so far ducked my invitation for a public video debate of issues that bother that critic in real time, with streaming of our debate to the public, and with recoding of the debate and posting it on the YouTube.

After I made a full post answering "Coyote Waits"' criticism and pointing out that the legal point that CW raised were unwarranted and that CW did not apply the law (constitutional law) correctly, CW answered not with a rebuttal point by point, but with more accusations of "playing fast-and-loose with the law", while not pointing out the exact instances of that "playing".

Here is our yesterday exchange.

1.  CW states that he or she or they "will respond to the substance of [my] reply later".  Good.  I will be waiting.

2.  CW wants to continue to sting from the bushes, anonymously, "for personal reasons", and if it hurts his/hers/their credibility, "so be it".

3. He/she/they "applaud my efforts to judicial misconduct".

4.  He/she/they "reviewed my litigation history" and made a conclusion that I "spend too much time chasing phantoms and attacking the wrong targets".

Now I got interested, but CW does not enlighten, once again, what exactly is meant, which is a bad trick in any dispute, much less in a public dispute that CW is undertaking.

First of all, my "litigation history" spans:

1/ New York State Supreme Court, trial and appellate level;
2/ New York State Family Court, trial and appellate level;
3/ New York state criminal courts, justice court and County court level, trial and appellate levels;
4/ federal courts, trial and appellate levels

The main litigation remains at the trial level and is not published.
Family Court litigation is private and is not published or given access to non-parties.
Litigation in criminal courts is not published unless it hits an appeal at the appellate division level, which rarely happens.
Successful litigation leading to dismissal of criminal cases before trial, which is the best for the defendant, is not published because such cases become sealed on dismissal.

So, when somebody says that they consulted (obviously, online) my "history of litigation", that is, first, impossible, and, second, it is interesting that the critic reserves his/her/their right to consult my litigation history, whatever is available, and does not reveal his/her/their identity, so that I am not able to consult their litigation history.

Because it can very well be that my ardent critic is either an object of my criticism for misconduct, a politician who has lost votes because of my blogs, or my losing opponent in litigation and I have had quite a few of those.

So.

If CW wants to continue to sting from the bushes - fine.

I will be responding to any public dispute on my blog, even from hiding critics.

But the fact that CW 

• stings anonymously, 
• does not want a public streamed video debate of issues raised in real time, so that both of us do not have time to prepare our answers and reactions, 
• prefers to criticize in a one-sided manner, by allegedly reviewing my litigation history and, of course, finding it lacking, while not allowing me to review CW's litigation history, and
• does not provide valid specific points of criticism, instead of making conclusory allegations of me allegedly "pursuing wrong targets", "chasing phantoms", "playing fast-and-loose" with the law.

Of course, CW pretends to provide constructive criticism that would allow me to make "better, more focused points with possibly more effect".  Yet, there is no way to make anything better without knowing what exactly is bad - and CW does not provide any specific criticism, so I make the conclusion that constructive criticism is not CW's real goal.

Discrediting my blog is.

Since it is obvious that my critic is trained in the law, the critic should also realize that such criticism has not just little, but no credibility.

For that reason, I repeat my invitation to a public video debate.

Otherwise it seems pretty much like a losing disgruntled opponent - or a judge whose misconduct I criticized on the blog - coming back to vent from the bushes under a mask.

And that is exactly what I say about what is wrong about the legal profession nowadays - it has no courage to face existing issues openly.

Which is why the public is increasingly upset with the legal profession covering up misconduct within its ranks high-up, and that is because, I believe, quite soon we will see deregulation of the legal profession and stripping it of its unwarranted privileged status in the society.

And, as a conclusion.

The key word in CW's comment is that he/she/they are "annoyed" with my blog.

Well, to me that means that I said something right.

I think, the most annoying point about this blog is that the rank-and-file does not have the legal means to stop it.

Topics I discuss are issues of public concern fully protected by the 1st Amendment of the U.S. Constitution.

Evidence I provide is verified evidence.  I only report from reliable sources, most of them are public records or accounts from reliable witnesses.

I have a lot of feedback to my posts.  Some people tell me their stories, but do not want me to publicize them.  I honor those requests.  Some people want me to publicize their stories, and, after verification, I do.

Yet, my stories are backed up with evidence, and they, annoyingly for the rank-and-file of the legal profession and the judiciary, continue, costing them votes and raising awareness of issues that attorneys are terrified to discuss in the open and the mainstream media does not touch, but which the public, especially its not-so-wealthy-and-popular members become painfully aware of through their own experience when they come to the courtroom.

As I already wrote here, I was already criminally prosecuted for this blog.

There was such a stupid attempt, by attorney Mary Gasparini of the disciplinary committee from the 4th Department.  

MG was also annoyed - by the criticism of her own misconduct and incompetence, for bringing fraudulent disciplinary charges against me and stubbornly continuing with them, even despite documentary evidence that they are fraudulent (MG charged me with not appearing at depositions as an attorney at the time when I was not admitted to the bar), by the criticism that she used fabricated court transcripts to win a disciplinary case, where proof of fabrication was put on the blog, as a real-time sound recording.

The criminal prosecution was tossed by the court before the first appearance date, after I filed a Memorandum of Law with the court pointing out that Mary Gasparini knows as much about criminal law as she knows about disciplinary law - and that is nothing (I published my Memorandum on this blog), and that by her disingenuous personal attack she disqualified herself from disciplinary proceedings by appearing as a sole witness against me in the fabricated frivolous criminal proceedings that she started.

Criminal proceedings charging me for violating my own privacy (a crime against myself - amusing, isn't it) were then tossed by the court, but Mary Gasparini's disqualification remained, even though she barged right on prosecuting the disciplinary case.

So, I remain the attorney prosecuted 

1. as a disciplinary matter for not committing a crime of unauthorized practice of law in 2008, not appearing at a deposition in September of 2008 and not answering a motion in December of 2008, because I did not and could not represent anybody in that deposition and on that motion for the simple reason that I was admitted to the bar in 2009.  Several courts, multiple judges and multiple attorneys, including Steven Mayas, Monica Duffy (member of the Statewide Commission for Attorney Discipline), Mary Gasparini and at least two Assistant NYS Attorneys General on my removed case in federal court (one of them is Andrew Ayers, former law clerk of the now U.S. Supreme Court Justice Sonya Sotomayor at the time she was a judge of the 2nd Circuit), supported this fraudulent charge, with no consequences to themselves up to now;
2. and, as a criminal matter, for violating my own privacy - speaking on this blog about misconduct in my own disciplinary proceedings, while the law gives me and not anybody else the choice of opening or closing them to the public, and I chose openness.

So, chasing phantoms is present big time, but the chasers are not me and they are still on the loose and not criticized by CW.

I understand that the most annoying point about my blog that, with all the stress and destruction of my husband's and my own law practice tossed at me by the system, with all the sanctions imposed upon us for lawful acts and professional activity as lawyers and citizens, with all the stupid and crazy prosecutions against us, including a criminal prosecution against me, and an attempted criminal prosecution against my husband for simply living in his home after disbarment and doing what anybody else does without any law licenses, we still remain active critics of the system, my husband - through his pro se federal civil rights litigation, and I through my blog.

The annoying point is that we do not shut up.

The annoying point is that we use our knowledge as legal experts to educate the public as to what is really going on in the court system that needs to be changed.

So, CW can remain hidden in the bushes, but the remaining anonymity of CW can mean that CW is Mary Gasparini for all I know, hitting from the bushes and afraid of public debate because CW is afraid he/she/they cannot stand up against me in discussing real issues in real time.

And if that is what CW insists upon, so be it.