AG Letitia James tries to put more makeup on the - already stinking - corpse of attorney regulation in New York. Read her full memorandum. Comments will follow in a separate article.

 

Legal Memorandum LI04: Real Estate Brokers and Salespersons and the Unauthorized Practice of Law

REAL ESTATE BROKERS AND SALESPERSONS
AND THE UNAUTHORIZED PRACTICE OF LAW

Article 12-A of the Real Property Law provides for the licensure of real estate brokers and salespersons. A licensee is statutorily held to standards of competency and trustworthiness. Failure to abide by such standards can result in the suspension or revocation of the license. The New York State Department of State has long considered the unlawful practice of law by a real estate broker or salesperson as grounds for disciplinary action. Its interpretation of what constitutes unlawful practice has been guided by relevant provisions of the Judiciary Law and by the seminal case of Duncan & Hill Realty, Inc. v. Department of State, 62 A.D.2d 690, (4th Dept. 1976), app dismissed, 45 N.Y.2d 821, 381 N.E.2d 608, 409 N.Y.S.2d 210 (1978).

Judiciary Law §478 prohibits the practice of law by non-attorneys, the purpose of which is to protect the public from the dangers of legal representation and advice given by persons not trained, examined, and licensed for such work. Jemzura v. McCue, 45 A.D.2d 797, 357 N.Y.S.2d 167 (3rd Dept. 1974), app dismissed 37 N.Y.2d 750, 337 N.E.2d 135, 374 N.Y.S.2d 624 (1975). Section 484 of the Judiciary Law additionally provides that "no natural person shall ask or receive, directly or indirectly, compensation for... preparing deeds, mortgages, assignments, discharges, leases or any other instruments affecting real estate... unless he has been regularly admitted to practice, as an attorney or counselor..." A violation of either of these sections is a misdemeanor. See, Judiciary Law §485. It may be prosecuted by the attorney general, or, upon leave of the supreme court, by a bar association. See, Judiciary Law §476-a. Additionally, should a real estate broker or salesperson be found to have engaged in such unlawful practice, the Department will take independent action against such person's license.

In Duncan & Hill, the court upheld the Department of State's determination that a real estate broker who was not a licensed attorney demonstrated untrustworthiness and incompetence in violation of Real Property Law §441-c, finding that, when he prepared documents that included detailed mortgage terms he had devised, he engaged in the unauthorized practice of law.

The court recognized that brokers have long been permitted to draft "simple" contracts in the context of their brokerage activities. Duncan & Hill, supra, 62 A.D.2d at 696, 405 N.Y.S.2d at 342. However, the court cautioned as follows:

...the so-called "simple" contract is in reality not simple. It is often the most important legal transaction that the average person will ever undertake--the purchase of a home, and it involves very substantial legal rights which deserve the advice and guidance of a lawyer. The argument that the need for expediting such transactions justifies their consummation without reference to an attorney is specious. The protection of the interests of the parties to such contracts is sufficiently important to justify a little delay for reflection and legal advice, so as to guard against a thoughtless drafting of a hastily conceived contract. The personal interest of the broker in the transaction and the fact that he is employed by one of the opposing parties are further reasons to require that, insofar as the contract entails legal advice and draftsmanship, only a lawyer or lawyers be permitted to prepare the document to ensure the deliberate consideration and protection of the interests and rights of the parties. Duncan & Hill, supra, 62 AD2d at 697-98, 405 N.Y.S.2d at 343-44; footnote omitted.

Recognizing the intent to protect the public to ensure that real estate brokers and salespersons do not exceed the bound of their competence and prepare documents the execution of which requires a lawyer's scrutiny and expertise, the court went on to state:

It is for this reason that real estate brokers and agents must refrain from inserting in a real estate purchase offer or counteroffer any provision which requires the exercise of legal expertise. Thus it is not proper for such a broker to undertake to devise the detailed terms of a purchase-money mortgage or other legal terms beyond the general description of the subject property, the price and the mortgage to be assumed or given. A real estate broker may readily protect himself from a charge of unlawful practice of law by inserting in the document that it is subject to the approval of the respective attorneys for the parties. Moreover, a real estate broker or agent who uses one of the recommended purchase offer forms . . . or one recommended by a joint committee of the bar association and realtors association of his local county, who refrains from inserting provisions requiring legal expertise and who adheres to the guidelines agreed upon by the American Bar Association and the National Association of Real Estate Brokers, above noted, has no need to worry about the propriety of his conduct in such transactions. Duncan & Hill, supra, 62 AD2d at 701, 405 N.Y.S.2d at 345.

Under these circumstances, a real estate broker or salesperson who prepares a simple fill-in-the-blanks purchase and sale contract can avoid the unlawful practice of law by including in the contract a condition making it subject to approval by each party's attorney. Alternatively, brokers and salespersons can utilize a fill-in-the-blanks form that has been approved by a joint committee of the bar association and realtors association of his or her county. Such an approved form would only require that the real estate brokers and salespersons fill in non-legal provisions such as the names of the parties, the date and location of the closing, a description of the property, the consideration for sale and any other relevant facts. The brokers and salespersons would not be permitted to develop any "legal terms". Further, since the contract establishes significant legal rights and obligations, it should clearly and prominently indicate on its face that it is a legally binding document and clearly and prominently recommend that the parties seek advice and counsel from their lawyers prior to affixing their signature to the document.

Brokers and salespersons must refrain, even with respect to these approved contracts, from providing legal advice to their clients. Nor may they discourage the parties from seeking advice from their attorneys. Brokers and salespersons may not add provisions to the approved contracts unless they make the entire contract subject to and conditioned upon the review and approval of each party's attorney. In addition, brokers and salespersons may prepare purchase and sale contracts, subject to the above conditions, only as an incident of the purchase and sale of real estate and may not charge a separate fee for preparation of the contract or share in the fees of attorneys for preparation or review of these contracts. See, Opinion of N.Y.S. Attorney General 96-F11, dated November 14, 1996.

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The information in this Memorandum should not be used in lieu of seeking appropriate legal advice. In addition, the information is subject to change based on future interpretations of the licensing law by the courts and/or for any relevant amendments. Private legal counsel should be consulted for legal advice related to this Memorandum.

 

February 14 2020

On constitutionality of government regulation of opponents’ representatives in court in the United States

 

On constitutionality of government regulation of opponents’ representatives in court

in the United States

 

Tatiana Neroni, Juris Doctor

October 2, 2021 ©

Court cases

Bates v. State Bar of Arizona, 433 U.S. 350 (1977)............................................ 2

Brazee v. Michigan, 241 U.S. 340 (1916).......................................................... 2, 3

Butz v. Economou, 438 U.S. 478 (1978) 1

Gideon v. Wainwright, 372 U.S. 335 (1963)................................................... 2

Matter of Giuliani, 2021 NY Slip Op 04086, 197 AD3d 1 (1^st Dept., June 24, 2021)................................................ 2, 3

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)................................... 3

Statutes

42 U.S.C. 1988(b), Proceedings in vindication of civil rights, attorney’s fees....................................................... 2

Other Authorities

James E. Moliterno, Politically Motivated Bar Discipline, 83 WASH. U. L. Q. 725 (2005)............................................ 3

Jones, Ira.  Critical Race Theory Remakes Connecticut School District | National Review, Indiana Conservatives for reason, July 19, 2021..................................................... 3

Storace, Robert.  Attorney Miller Believes Deck Is Stacked Against Her for Reinstatement to State Bar.  Civil rights attorney Josephine Smalls Miller will make her case for reinstatement to the state bar on Sept. 1, Connecticut Law Tribune, August 21, 2021........... 3

Constitutional Provisions

U.S. Constitution, Amendment 6, Right to Counsel............................................ 2

 

 

The U.S. Supreme Court has included into its requirement of fair court proceedings adversarial nature of such proceedings[1].

There may be no true adversarial court proceeding where one opponent (especially – the more powerful one) controls the other, or its representative, by means outside of the particular court proceeding, where

1.     A party in litigation must choose its trusted representative in court from the list approved by its opponent in litigation, which undermines any possibility of trust to such a representative; and

2.     A powerful party in litigation (the government) may remove representatives of its opponents in litigation at a whim, without knowledge or consent from the party who has chosen that particular representative.

Yet, this is exactly what is happening in the American courts – and the recent case of New York’s suspension of Rudy Giuliani’s law license[2] is just one of such examples.

Back at the beginning of the 20^th century the U.S. Supreme Court has ruled that the only business that may be constitutionally regulated by the government[3] is a business of such a nature that without a legislative regulation a lot of people will suffer serious harm[4].

At the same time, the U.S. Constitution recognizes the important role of an attorney in cases where an individual opposes the government in court, by

·       its direct text[5],

·       federal statutes providing financial incentives for attorneys to sue the government on behalf of indigent individuals for human rights abuses[6] and

·       by US Supreme Court precedent[7].

States also provide free counsel to indigent defendants in “quasi-criminal” settings where proceedings threaten loss of constitutional rights, such as child neglect/abuse proceedings by social services against parents and “civil” contempt proceedings.

In view of importance of the right to counsel in cases where the government is the opponent in litigation, whether the government is the plaintiff (criminal, CPS cases) or a defendant (federal civil rights lawsuits), it is important for litigants to have a choice of representatives in court whose livelihood is not controlled by opponent in litigation, the government.

Yet, not only livelihoods of such attorneys are, in fact, controlled by their opponent in litigation, the government, but such representatives of opponents of the government in litigation are actually targeted by the government in license revocation proceedings, to remove the counsel of choice from the opponent, without opponent consent, and to gain this way an advantage in litigation.

The license revocation of the civil rights lawyer Rudy Giuliani who dared to bring a civil rights lawsuit against the government claiming improper actions of government officials in several states presidential elections in 2020[8] is one of the most recent and the most illustrative examples of this targeting[9].  The license revocation was targeting not only Giuliani himself, but, very obviously, his client Donald Trump who was deprived of his chosen counsel in and out of court by his opponents in litigation.

Another recent example is revocation of the license of a black civil rights attorney from Connecticut, for suing a judge and “slandering the judicial system” of the state, specifically, for accusing the state court system of racism[10].  Similarly, it was attorney Miller’s clients – opponents of the government in civil rights lawsuits – who were stripped of her services without their consent, by their opponents in litigation, when license was revoked by the government from civil rights attorney Miller, on contrived grounds:

·       slandering a system, and especially a government system, is not possible to do legally in the USA, since in American jurisprudence, one cannot “slander a system”, only a person,

·       the judge attorney Miller sued in federal court never counter-sued her for defamation,

·       had the judge done so, he would have lost because of high pleading standards and high burden of proof put on government officials in defamation lawsuits in the U.S. Supreme Court 1^st Amendment jurisprudence[11],

·       the reason for this political targeting and punishment of the civil rights attorney in Connecticut for asserting that state courts are racist becomes tragi-comical in view of the same state’s decision to teach in its schools the “Critical race theory”, asserting that systemic racism permeates all governments (including, obviously, the state courts), and the entire society in the United States[12].

Not in Connecticut, not in New York, not anywhere else in the United States, did legislatures determine, in order for the government to regulate representatives of its own opponents in litigation, civil rights/criminal defense/defense-against-CPS attorneys, that business of these lawyers is of such nature that without legislative control over such services a lot of people will come to a lot of serious harm[13].

On the opposite, a lot of people are obviously coming into a lot of serious harm when they are given no choice by the government, but to choose representatives in court, when sued by the government, representatives whom they must trust with secret details of their lives and entrust the future of their own life, liberty, property – only from the lists approved by their powerful opponent in litigation.

In fact, while such control exists, services of counsel in defense of civil rights situations that are so highly valued – in words, at least - by the U.S. Constitution, federal statutes and the U.S. Supreme Court precedent are stripped of their value through control over them by the powerful opponent in litigation, the government.

Moreover, while such control exists, none of court decisions in cases where government is a party in litigation may be considered legitimate, since the process used in arriving at those decisions lacked the true independence of the representatives of the government’s opponents in litigation, and thus lacked the true adversarial nature required by the U.S. Supreme Court for court proceedings.

It is obvious that regulation by the government of criminal defense, defense-against-CPS and civil rights lawyers is unconstitutional as regulation of representatives of government’s opponents in litigation since it

·       emasculates people’s right to counsel given by the U.S. Constitution or federal statute,

·       allows the most powerful party, with the burden of proof in criminal and child abuse/neglect cases, to always have an unfair advantage in such litigation,

·       destroys legitimacy of court decisions in cases where the government is a party in litigation by removing the required element of court proceedings – a true adversarial nature of such proceedings.

Regulation by the government in the US of representatives of its own opponents in court must stop.

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[1] Butz v. Economou, 438 U.S. 478 (1978) (“the safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct. The insulation of the judge from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal are just a few of the many checks on malicious action by judges”, emphasis added).

[2] Matter of Giuliani, 2021 NY Slip Op 04086, 197 AD3d 1 (1^st Dept., June 24, 2021)..

[3] The U.S. Supreme Court has ruled that the “practice of law” is a business in Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (regulation of lawyers may not forbid business advertisements of their services by lawyers).

[4] Brazee v. Michigan, 241 U.S. 340 (1916) (“Considering our former opinions it seems clear that, without violating the federal Constitution, a state, exercising its police power, may require licenses for employment agencies and prescribe reasonable regulations in respect of them, to be enforced according to the legal discretion of a Commissioner. The general nature of the business is such that, unless regulated, many persons may be exposed to misfortunes against which the legislature can properly protect them”, emphasis added).

[5] U.S. Constitution, Amendment 6, Right to Counsel.

[6] 42 U.S.C. 1988(b), Proceedings in vindication of civil rights, attorney’s fees.

[7] Gideon v. Wainwright, 372 U.S. 335 (1963).

[8] Matter of Giuliani, 2021 NY Slip Op 04086, 197 AD3d 1 (1^st Dept., June 24, 2021)..

[9] See e.g. Moliterno, James E.  Politically Motivated Bar Discipline, 83 WASH. U. L. Q. 725 (2005).

[10] See Storace, Robert.  Attorney Miller Believes Deck Is Stacked Against Her for Reinstatement to State Bar.  Civil rights attorney Josephine Smalls Miller will make her case for reinstatement to the state bar on Sept. 1, Connecticut Law Tribune, August 21, 2021.

[11] New York Times Co. v. Sullivan, 376 U.S. 254 (1964)..

[12] See e.g. Jones, Ira.  Critical Race Theory Remakes Connecticut School District | National Review, Indiana Conservatives for reason, July 19, 2021.

[13] Brazee v. Michigan, 241 U.S. 340 (1916).

New York may not regulate Giuliani (or other lawyers) because law license revocation courts officially merged with prosecution

New York may not regulate Giuliani (or other lawyers) because law license revocation courts officially merged with prosecution

 

 

Tatiana Neroni, J.D.

September 24, 2021

 

 

 

The U.S. Supreme Court has ruled that when a court combines in itself functions of a judge and a prosecutor in the same case, all decisions of such courts are null and void as violating 14^th Amendment of the U.S. Constitution, Due Process Clause[1].

New York law licensing courts have made prosecution in attorney disciplinary cases as an official part of the court as far back as in 1975[2] and continue to do the same until now.

Therefore, all decisions of New York courts imposing attorney discipline – including in Giuliani’s case – are null and void.

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[1] Williams v. Pennsylvania, 579 U.S. ___ (2016).

[2] Anonymous, an Attorney Admitted to Practice in the State of New York v NYC Bar Assn., 515 F.2d 427 (2nd Cir., 1975).

New York may not regulate Giuliani (or other lawyers) because its legislature has never clearly determined what it is that it is regulating when it is regulating “the practice of law”

 

New York may not regulate Giuliani (or other lawyers) because its legislature has never clearly determined what it is that it is regulating when it is regulating “the practice of law”

 

 

Tatiana Neroni, J.D.

September 24, 2021

 

 

The U.S. Supreme Court has declared that for any law to be constitutional, it has to be done by the legislature, and the legislature must clearly define in that law – so that an ordinary person of average education and intelligence understands it - what the law allows and what it prohibits, and the law must give a clear guidance to the executive branch (police and prosecutors) and to judges how to apply it[1].  

When New York regulates “admission to the bar”[2], it regulates not the same admission to the bar which requires a human body with a heartbeat, over 21 years of age and with some dollars in his or her pocket, but what it mysteriously calls “the practice of law”.

Yet, New York’s legislature so far did not come around yet to clearly define what “the practice of law” means.

Thus, New York may not, until it does so define, regulate any lawyers, including Rudy Giuliani, and any New York’s decisions admitting or expelling lawyers from “the practice of law” are null and void.

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[1] Grayned v. City of Rockford, 408 U.S. 104 (1972).

[2] New York State Judiciary Law § 90.

New York may not regulate Giuliani (or other lawyers) because it has never determined that lawyers are a profession of such a nature that without its legislative regulation a lot of people will suffer a lot of serious harm

 

New York may not regulate Giuliani (or other lawyers) because it has never determined that lawyers are a profession of such a nature that without its legislative regulation a lot of people will suffer a lot of serious harm

 

Tatiana Neroni, J.D.

September 24, 2021

 

 

The U.S. Supreme Court has clearly stated over 100 years ago that the government may only regulated those businesses and professions which are of such nature that without legislative regulation, will cause a lot of people a lot of bad harm[1].

In other words, only inherently dangerous and dishonest professions and businesses may be constitutionally regulated by the government.

On that premise, why then do we have to populate our judiciary and our prosecutors only and exclusively with members of that inherently dangerous and dishonest profession?

Especially that the profession has proven its inherent danger and dishonesty by giving to themselves absolute immunity to commit crimes in office – as judges[2] and as prosecutors[3].

So, they have allowed themselves to fabricate cases, including Giuliani’s, with impunity – and now they are teaching Giuliani how to tell the truth to the public?

But if Giuliani sues them in federal court, will invoke judicial and prosecutorial immunity for fabricating cases?

This little inconsistency aside, there was never any determination by the New York legislature that the legal profession is of such a nature (dangerous and dishonest) that without legislative control a lot of people will suffer a lot of serious harm.

Therefore, according to the U.S. Supreme Court precedent[4], New York may not constitutionally regulate lawyers, and the decision against Giuliani is null and void.

 

 

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[1] Brazee v. Michigan, 241 U.S. 340 (1916).

[2] Stump v. Sparkman, 435 U.S. 349 (1978).

[3] Imbler v. Pachtman, 424 U.S. 409 (1976).

[4] Brazee v. Michigan, 241 U.S. 340 (1916).

 

The decision to suspend Giuliani’s law license: jurisdictional basis fabricated by the licensing court

 

The decision to suspend Giuliani’s law license:

jurisdictional basis fabricated by the licensing court

 

Tatiana Neroni, Juris Doctor

Initial publication in Russian on Academia.edu – September 7, 2021 ©

 

 

In its decision to preliminarily suspend the law license of Rudy Giuliani, lawyer to 45^th US President Donald J. Trump, the New York licensing court has reviewed and rejected Giuliani’s protest against court’s regulation of his political speech in and out of court and suspended Giuliani’s law license, before the formal charges were filed and without any hearing, because of his political statements about results of presidential elections 2020 in 4 states:

1.     Arizona,

2.     Georgia

3.     Michigan

4.     Pennsylvania[1].

In asserting its right to regulate political speech of attorneys in and out of court the New York licensing court relied upon two U.S. Supreme Court cases:

1.     Gentile v State Bar of Nevada, 501 US 1030, 1051 (1991), and

2.     Ohralik v Ohio State Bar Assn., 436 US 447, 465 (1978).

The reality is that neither one of these precedents of the U.S. Supreme Court contains permission to any governmental bodies, courts included, to regulate political speech of lawyers – with very narrow exceptions that did not apply in Giuliani’s case.

On the very opposite, in the former of the two precedents cited by the New York licensing court in Giuliani’s case, Ohralik v Ohio State Bar Assn., 436 US 447, 465 (1978), the essence of the case was about regulating of purely commercial speech of a lawyer – the so-called “ambulance-chasing”, imposing of the lawyer’s paid business to patients of hospitals without their consent.

Moreover, the U.S. Supreme Court has been very cautious not to regulate political speech of lawyers in Ohralik, and not to even appear as if it is attempting to do that – it stated specifically in Ohralik that the speech regulated in that case was not political in character. 

In the latter of the two precedents cited by the New York licensing court in Giuliani’s case,  Gentile v State Bar of Nevada, 501 US 1030, 1051 (1991), the essence of the case was disciplinary punishment of a criminal defense attorney who has won a jury trial for his client.  The punishment was for the lawyer’s press-conference before the formal charges were brought against his client, where the lawyer has publicly accused the local police of criminal activities, fabrication of a criminal case against his client and mishandling of the drugs seized by the police elsewhere.

The U.S. Supreme Court has actually vacated the attorney’s punishment, stating that

1.     An attorney may need to make out-of-court public statements on behalf of his client in the course of a court case if the attorney decides that the client’s interests so demand;

2.      An attorney may publicly criticize the government out-of-court despite a pending court case, which is political speech that the government may not regulate, with two exceptions – if the attorney has used in his/her political speech

1)     Information obtained through a mandatory court discovery process, and

2)     Information subject to a pre-trial court gag order.

The court in Giuliani’s case never mentioned that Giuliani used in his statements information falling into either of the above two exceptions, therefore, the New York court had no authority to regulate Giuliani’s political speech – in or out of court.

Therefore, Giuliani was correct in his protest that the court lacked authority to regulate his political speech through a license regulating procedure.

Moreover, the court in Giuliani’s case acknowledged that at all times when making his statements Giualiani acted in a representative capacity, as the voice of his client, 45^th US President Donald J. Trump.

The U.S. Supreme Court has stated more than half a century ago that the government may not do in an indirect way what it may not do in a direct way[2].

Donald J. Trump is not an attorney licensed by the State of New York to practice law, nor does he purport to practice law in the state of New York, and thus is not subject to regulation by New York State court regulating attorneys[3].

New York attorney licensing court had no authority to regulate political speech of 45^th US President Donald J. Trump – not directly and not indirectly, through regulating his representative, lawyer Giuliani.

Nor did the court have authority to regulate Giualini’s speech had that speech been on Giuliani’s own behalf, in view of the true holding and reasoning of the two US Supreme Court cases Giuliani’s court has (deliberately) misquoted.

Therefore, the Giuliani court had no jurisdiction over proceedings, its decisions are null and void and the continuing proceedings must be barred as unconstitutional.

 

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[1] Matter of Giuliani, 2021 NY Slip Op 04086 (1^st Dept, June 24, 2021).

[2] Speiser v.Randall, 357 U.S. 513 (1958).

[3] See New York State Judiciary Law § 90(2) (“The supreme court shall have power and control over attorneys and counsellors-at-law and all persons practicing or assuming to practice law”).