"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.

Tuesday, October 19, 2021

Why attorney license revocation proceedings in New York are criminal proceedings


Why attorney license revocation proceedings in New York are criminal proceedings


Tatiana Neroni, Juris Doctor

October 19, 2021 (C)


List of references/authorities. 1

The US Supreme Court rule to determine whether proceedings are criminal in nature, despite the government’s declaration that they are civil in nature. 2

The goal of retribution reflected in New York State statute. 2

The goal of retribution/punishment reflected in the fact that attorneys in New York, with the loss of law license, lose certain important rights they had before they obtained their law license. 2

The goal of deterrence in New York State Rule governing imposition of attorney “discipline”/punsihment 4


List of references/authorities

Court cases

Bell v. Wolfish, 441 U. S. 520, 539, n. 20 (1979)................................................... 2

Kennedy v. Mendoza-Martinez, 372 US 144 (1963).................................... 2, 3, 4

Matter of Aretakis, 2008 NY Slip Op 09693, 57 AD3d 1160 (3rd Dept., 2008).............................................................. 5

Matter of Friedberg, 2021 NY Slip Op 02109, 194 AD3d 126 (1st Dept., April 6, 2021)................................................ 4

Matter of Walker, 2020 NY Slip Op 00835, 181 AD3d 62 (1st Dept., 2020) 5

Matter of Yu, 2016 NY Slip Op 07103, 145 AD3d 43, (1st Dept., 2016)........... 5

United States v. Halper, 490 US 435 (1989)............................................... 2, 3


New York Judiciary Law §90(4)(a).... 2, 5

New York State Judiciary Law § 90(2)(b).............................................................. 3

Other Authorities

Jewish Virtual Library, Banishment....... 4


22 NYCRR 1240.8(b)(2)......................... 5

Constitutional Provisions

U.S. Const., Amendment 14, Due Process Clause.................................................. 5

U.S. Const., Amendment 14, Equal Protection Clause................................. 5

The US Supreme Court rule to determine whether proceedings are criminal in nature, despite the government’s declaration that they are civil in nature

The US Supreme Court has provided that a declaration by the state of the supposedly civil nature of a proceeding does not stop, but only starts an analysis whether the nature of the proceeding is, instead, criminal, on its face and as applied in certain specific cases.  According to the U.S. Supreme Court, a finding that the proceeding, in addition to civil, remedial goals, has also the goal of either punishment, or deterrence, defines the proceeding as criminal in nature[1].

The goal of retribution reflected in New York State statute

In attorney license revocation proceedings in the State of New York, the goal of retribution appears in a statute requiring an automatic permanent revocation of attorney license (“disbarment”) in case of conviction of a serious crime, a felony[2] – which is both punishment for past actions and deterrence of others.

The goal of retribution/punishment reflected in the fact that attorneys in New York, with the loss of law license, lose certain important rights they had before they obtained their law license

The U.S. Supreme Court has several additional factors from a case prior to US v Halper ) on which U.S. v Halper) relies to determine whether proceedings declared as “civil” by the government are criminal proceedings in nature[3].

These factors are:

  • 1.     whether the sanction involves an affirmative disability or restraint,
  • 2.     whether it has historically been regarded as a punishment,
  • 3.     whether it comes into play only on a finding of scienter,
  • 4.     whether its operation will promote the traditional aims of punishment—retribution and deterrence,
  • 5.     whether the behavior to which it applies is already a crime,
  • 6.     whether an alternative purpose to which it may rationally be connected is assignable for it, and
  • 7.     whether it appears excessive in relation to the alternative purpose assigned[28] are all relevant to the inquiry, and may often point in differing directions

As shown in US v Halper), 26 years after deciding Kennedy, the U.S. Supreme court later singled out factor #4 from the Kennedy list and narrowed the list, allowing the determination of criminal nature of a declared-civil proceeding on that factor alone, so, other factors can be used as a strengthening point of such a determination.

Whether the sanction brings with it a loss of rights is prominently the factor #1 in the Kennedy list.

In attorney license revocation proceedings, the loss of rights accompanying revocation of the license and caused by such revocation is prominently shown:

  • 1.     policy # 1, legislative – by forbidding every attorney who have lost his license the rights that attorneys had before receiving such a license, namely, participating in democracy which requires “expressing to another opinion about the law or its application”[4], and
  • 2.     policy # 2, by a court precedent - by court treatment of attorneys whose law licenses are revoked – forbidding attorneys occupations allowed to other people without a law license, and that had been allowed to suspended or disbarred attorneys before they ever obtained their law licenses[5].

Policy # 2 above appears to parallel the ancient punishment of banishment[6] that involved an additional enforcement measure - a punishment of anybody who would harbor and give shelter and/or comfort to a state-banished person.

Therefore, policy # 2 reflects the 1st factor of the Kennedy list above, as well as the 5th factor from the same list – whether behavior to which the sanction applies is already a crime.  It was a crime, not in this country, age and structure of government – but it was, and a serious one.

Notably, banishment of attorneys, punishment by starvation, after their licenses are revoked is so important for New York courts that courts have invented the draconian policy #2, ruling the remaining attorneys by terror and forbidding licensed attorneys to engage in legal conduct of hiring non-lawyer personnel if that legal conduct involves compassion toward their banished colleagues – courts (and not only New York courts) revoke licenses of attorneys as punishment for harboring/giving comfort and compassion/hiring banished attorneys to work in positions that do not require law licenses (secretaries, paralegals)[7]

The goal of deterrence in New York State Rule governing imposition of attorney “discipline”/punsihment

The goal of deterrence appears in the New York State rule regarding dispositions in attorney license revocation proceedings:

“Discipline. In presenting arguments on the issue of appropriate

discipline for misconduct, the parties may cite any relevant factor,

including but not limited to the nature of the misconduct, aggravating

and mitigating circumstances, the parties’ contentions regarding

the appropriate sanction under the American Bar Association’s

Standards for Imposing Lawyer Sanctions, and applicable case law

and precedent. Upon a finding that any person covered by these

Rules has committed professional misconduct, the Court may

impose discipline or take other action that is authorized by law and,

in the discretion of the Court, is appropriate to protect the public,

maintain the honor and integrity of the profession, or

deter others from committing similar misconduct[8].”


New York courts revoking attorney licenses apply and reference this rule and openly state in license revocation decisions that in addition to the “remedial” purpose of the law license revocation proceedings the sanction in such a proceeding has a goal to deter the same person and others from similar misconduct[9].

Moreover, New York courts apply the 2nd punishment of disbarment for the same past conduct not only for a criminal felony conviction[10], but also for some criminal misdemeanor convictions[11], which courts equate with sanctions in civil proceedings[12].

Thus, attorney revocation proceedings in New York are criminal in nature on their face and as applied in specific cases since rules governing such proceedings contain, in addition to civil, “remedial” goals, both of the penal goals declared by the US Supreme Court as designating the criminal nature of a proceeding – retribution and deterrence.

Consequently, attorneys in license revocation proceedings in the State of New York are entitled to have, as a matter of Due Process and Equal Protection of Law guaranteed by the 14th Amendment to the U.S. Constitution, the same host of procedural and substantive rights that all other criminal defendants in the State of New York enjoy.




[1] United States v. Halper, 490 US 435 (1989).  We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence.  See, e. g., Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168 (1963) (these are the "traditional aims of punishment"). Furthermore, "[r]etribution and deterrence are not legitimate nonpunitive governmental objectives."  Bell v. Wolfish, 441 U. S. 520, 539, n. 20 (1979). From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term”.

[2] New York Judiciary Law §90(4)(a) (“Any person being an attorney and counsellor-at-law who shall be convicted of a felony as defined in paragraph e of this subdivision, shall upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such.”)

[3] Kennedy v. Mendoza-Martinez, 372 US 144 (1963).

[4] New York State Judiciary Law § 90(2)(b): “It shall be the duty of the appellate division to insert in each order of suspension or removal hereafter rendered a provision which shall command the attorney and counsellor-at-law thereafter to desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another. In addition it shall forbid the performance of any of the following acts, to wit: … b. The giving to another of an opinion as to the law or its application, or of any advice in relation thereto”.

[5] See e.g. Matter of Brandes, 2015 NY Slip Op 81096[U] (2d Dept 2015), aff’d, 28 NY3d 1041 (2016) (an attorney whose law license was revoked for 7 years was denied reinstatement of his license because during the period when his license was revoked he worked as a paralegal – which does not require in New York a law license or any formal education);  see also Matter of Castillo, 2017 NY Slip Op 00531 (3rd Dept., January 26, 2017) (Even though the court did not publish the list of prohibited activities in the Matter of Castillo, the motion of attorney Castillo for permission to engage in activities enumerated in his motion was denied in full, and the author obtained from the court a copy of Gaspar Castillo’s motion, with the following activities listed (and prohibited) by the court as “practice of law” – for a suspended attorney, but not for any other person without a law license or law degree or any formal education:  


*   organizing and compiling legal documents;

*   File documents

*  Review insurance company documents for compliance with underwriting and coverage requirements

*   organizing and putting together trial/hearing notebooks

*   Prepare and sign affidavits of filing (service)


*   organizing and putting together trial/hearing notebooks

*   Serve documents and prepare and sign affidavits

*  Review insurance claims for underwriting and coverage requirements

*   Fill out/fill in legal documents

*   Review CDs of police interrogations and make notes of times and words spoken as directed

*  Process insurance company claim documents

*   Serve documents and prepare and sign affidavits

*   Proofread and edit legal documents

*  Perform investigative duties or work in an investigative capacity

*   Compile and organize relevant case law and statutes

*   Proofread and edit contracts

*  Prepare and write reports

*   Draft omnibus motions and other pleadings for review

*   Summarize testimony in hearing or trial transcripts

*  Review immigration documents

*   Draft briefs on legal issues as directed

*   Draft deed, mortgage, satisfaction, and other real estate documents for review

*  Prepare immigration documents including petition for legal residency, status, naturalization, applications for work authorization or other legal status in the United States

*   Compile and put together records on appeal

*   Prepare statements of sale and other closing documents



[6] See Jewish Virtual Library, Banishment Banishment ( (covering a lot of examples of banishment from a large number of lay and religious medieval sources).

[7] See e.g. Matter of Friedberg, 2021 NY Slip Op 02109, 194 AD3d 126 (1st Dept., April 6, 2021).

[8] 22 NYCRR 1240.8(b)(2), emphasis added.

[9] See e.g. Matter of Walker, 2020 NY Slip Op 00835, 181 AD3d 62 (1st Dept., 2020) (“The evidence before the Referee clearly established the seriousness of respondent's assault on an intimate partner. Even when taking into consideration the mitigating circumstances, a period of suspension for such an assault is warranted in order to maintain the honor and integrity of the profession and deter others from committing similar misconduct (22 NYCRR 1240.8 [b] [2])”.

[10] See New York Judiciary Law §90(4)(a)Matter of Yu, 2016 NY Slip Op 07103, 145 AD3d 43, (1st Dept., 2016).

[11] Matter of Walker, 2020 NY Slip Op 00835, 181 AD3d 62 (1st Dept., 2020), Matter of Aretakis, 2008 NY Slip Op 09693, 57 AD3d 1160 (3rd Dept., 2008).

[12] See Matter of Aretakis, 2008 NY Slip Op 09693, 57 AD3d 1160 (3rd Dept., 2008)(A criminal defense attorney made a motion to recuse a judge in a criminal proceeding.  The judge sanctioned the attorney for “frivolous conduct”, and the attorney appealed.  The licensing court, in its capacity as the appellate court, vacated the sanctions on the only basis that the rule of frivolous conduct is only used in civil proceedings.  Additionally, the court remanded the case back to the same judge with an instruction how to sanction the attorney so that the appeal would be affirmed.  The court did so, imposed a criminal sanction for contempt of court, the licensing court, in its capacity as the appellate court, affirmed (as it promised before), and then summarily revoked the attorney’s license based on that criminal contempt conviction.  The case shows that the licensing/appellate court equated a civil sanction with a criminal conviction, considering the difference a matter of mere formality).

Saturday, October 16, 2021

New York State Attorney General Leticia James encourages mass commission of two crimes, state and federal, in order to please her professional association

Previously I have posted the entire memorandum of law of 2020 by New York State Attorney General Leticia James allowing real estate agents in New York to practice law in the state if they write only "simple contract" that do not violate agreements between local associations of lawyers and realtors (among some seemingly punitive wordplay that is devised to conceal the main permissive meaning of the memo).

Practice of law in the state of New York by people who do not have a license to practice law from a New York State Appellate Division ("unauthorized practice of law", or UPL)  is a crime of misdemeanor.

Additionally, market-sharing agreements (like associations of attorneys and realtors deciding if it is ok for members of one another's association to invade the other's trading turf) are crimes prohibited by federal antitrust laws (The Sherman/Clayton Act).

Additionally what constitutes a crime in New York must be defined by statute, the New York Penal Code, and not by agreements between trade associations - they have no legislative powers in New York.

So, neither NYS AG James, nor the court whose decision she quotes in her Memorandum of law could endorse commission of a state crime (UPL) on a condition that it is approved through commission of a federal crime.

Note that an attorney representing the State of New York endorses commission of these two crimes in order to please her own professional association.

Note that the duty of this elected public official is - supposedly - to enforce the laws of the State of New York and protect New-Yorkers from violators of the laws, not to encourage violation of the law.