Mr. Neroni and his dangerous questions. Question No 3. Why disparity in the burdens of proof for private discipline, public discipline and reinstatement proceedings?

In my previous blogs I started to cover the questions that were too dangerous for a federal court (and a likely corrupt judge) to consider in Neroni v Zayas, Case No. 3:13-cv-127-LEK-DEP.

Here is the third question.

Why intermediate appellate courts created a rule providing for two different standards of proof in attorney disciplinary proceedings?

The standard of proof in attorney disciplinary proceedings is like an insane roller-coaster:

 

Private discipline: Letter of education Letter of caution Letter of admonition	Public discipline: Censure Temporary suspension of license Permanent revocation of license	Reinstatement of license
Clear and convincing evidence	Preponderance of the evidence	Clear and convincing evidence

Appellate court, as any other ADMINISTRATIVE agency dealing with issuance or revocation of occupational licenses, is:

• making rules of attorney professional conduct - as a legislator;
• appoints prosecutors (and structure disciplinary committees to have super-majorities of private market players), and deems prosecutors the "arm of the court", or a "part of the court" - so the court is also a prosecutor, an executive function
• adjudicates the case - the judicial function

Conflation of these three functions clearly brand attorney disciplinary proceedings as admihistrative in nature, no matter whether they are handled by courts or not.

As it was correctly stated in one federal court case, if a judge presides over a PTA meeting, that does not make the PTA meeting a court proceeding.

But, even in administrative proceedings there should be elementary fairness to the prosecuted holder of an occupational license.

So - WHAT on Earth can be the so-called "rational basis" to raise the burden of proof high for the levels of discipline that are private and are not known to the public, then to DROP that burden of proof to the level of the least worthy of protection (preponderance of the evidence) where the stakes are the highest - loss of license, reputation and livelihood forever - and then to RAISE the burden of proof once again when the individual asks to return the law license to him or her.

Federal court in Neroni v Zayas, Judge Lawrence Kahn, possibly after consultation with the "market players" behind the locked doors of the American Inns of Court, over dinner, pretended it did not see the claim and dismissed it without ever discussing it.

Yet, the question as to the disparity of the burden of proof remains.

If the burden of proof by preponderance of the evidence is proper, then why for LOWER types of discipline and for reinstatement proceedings, the burden of proof is higher?

And isn't it a violation of equal protection, a facial violation, through the existing rules?

And an in-built bias of the court - remember, the legislator of those rules AND the adjudicator, and the prosecutor?