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?

Mr. Neroni and his dangerous questions. Question No. 2. Why revocation of crocodillian permit is given more protection in New York than revocation of a law license

In his lawsuit Neroni v Zayas brought on February 2, 2013 in the U.S. District Court in the Northern District of New York, Case No. 3:13-cv-127-LEK-DEP, my husband Mr. Neroni raised the following equal protection/declaratory judgment challenge - totally ignored by the court:

Why proceedings to revoke the occupational license of an attorney are considered court proceedings and proceedings to revoke any other occupational licenses in New York are considered administrative proceedings?

The question is not idle, and it is not by chance that federal court chose to ignore the question.

The question is simply too dangerous because, if answered, it would have undone all the carefully constructed system of attorney disciplinary proceedings as a feeding grounds for private attorneys to drum up business and eliminate competition behind closed doors.

After all, a rose by any name is a rose, right?

So, if a proceeding bears all the attributes of administrative proceedings - from its nature (occupational license revocation) to functions of the actors (the licensing agency acts as a prosecutor, legislator and adjudicator), to availability of discovery to the accused (discovery is not available in disciplinary proceedings).

These attributes equally describe proceedings to revoke a crocodillian permit (there is such an occupational license in New York - to handle and breed crocodiles), and proceedings to revoke a law license.

Simply because the licensing agency allowed to issue law licenses is called a "court", does not mean that anything that court does is judicial.

The reason why the federal court carefully ignored the challenge was because the set of procedural protections for revocation of ANY other occupational license but the law license in New York are vastly different than in revocation of a law license - for no apparent reason, which IS an equal protection problem.

After all,

revocation of any other occupational license but the law license:

1. Starts in an administrative agency;
2. Starts as an executive administrative proceeding;
3. Is entitled to an appeal within the administrative agency - as of right;
4. Is entitled to a court proceedings to undo the decision of the administrative agency - called an Article 78 proceedings - as of right;
5. Is entitled to two levels of appeal in court proceedings - to the intermediate appellate court and to the Court of Appeals.
6. And - THE BIGGER!  The initial revocation of the license by the administrative agency is not entitled to the Rooker-Feldman bar in federal court.

As compared, revocation of a law license, being also an executive function BY ITS NATURE, no matter whether the license issuing and revoking agency is called "a court" or not, is handled in 

1. Intermediate appellate court - with NO right of appellate review other than
2. Limited review by the NYS Court of Appeals on constitutional grounds which usually end in a one-sentence dismissal claiming that there was no "substantial" violation of constitutional rights.

• No intermediate administrative appeal.
• No Article 78 proceedings.
• No appeal to the intermediate appellate court.
• Law license revocation is treated by federal courts as a final court judgement precluding any review in federal courts through the Rooker-Feldman bar.

THREE procedural stages are skipped, and a federal review of an administrative-in-nature decision is barred.

So, Mr. Neroni asked - WHY revocation of a crocodillian permit is given four times more procedural protection than revocation of a law license that requires a lot more and a lot more expensive training and investment?

There was no answer, not even a recognition that such a claim was made.

The case was dismissed without even mentioning that claim.

Instead of reviewing this clearly stated claim, the court engaged in plaintiff-bashing (after paying lip service to the "standard of review" requiring the court to give all favorable inferences TO the plaintiff's pleadings):

The court claimed that Mr. Neroni's lawsuit is:

• "lengthy;
• convoluted;
• digressive;
• redundant" - Dkt. 46, p. 1

 The court claimed that Mr. Neroni causes of action where, of course, "ill-defined", Dkt. 46, p. 4.

The court claimed that Mr. Neroni's claim (this claim) was a "rambling assemblage of words", Dkt. 46, p. 10.

You be judges as to how "rambling" was the "assemblage of words" that the court deemed too dangerous to even consider.

Had the "assemblage" been properly considered by the court, a declaratory judgment that attorney disciplinary proceedings in New York are administrative in nature and no independent judicial review whatsoever is given to attorneys when their law licenses are revoked, could have led to a revolution in how attorneys are regulated, long before the U.S. Supreme Court decision in North Carolina Board of Dental Examiners v. Federal Trade Commission (decided in February of 2015) and long before appointment of the useless and conflict-ridden Statewide Commission for Attorney Discipline. 

But, changing the status quo is not in the plans of those who benefit - including financially, big time - from that status quo, and that includes members of attorney disciplinary committees and the courts who hold attorney independence in a death grip and practically force attorneys to finance judicial campaigns in order to gain their favor.

Mr. Neroni's civil rights lawsuit is now on appeal.

We'll see whether the usually octogenarian 3-judge appellate panel of the 2nd Circuit will have enough energy to read the record and recognize the claim.

Stay tuned.

Frederick Neroni and his dangerous questions. The first set of dangerous questions: if New York law does not define what "practice of law" is, what exactly is licensed as practice of law and what exactly is prosecuted as unauthorized practice of law?

In his lawsuit Neroni v Zayas, filed on February 2, 2013 in the U.S. District Court for the Northern District of New York, Case No. 3:13-cv-127-LEK-DEP and since then dismissed by judge Lawrence Kahn (in two stages, most of the claims in March of 2014, the remaining claims in June of 2015), Mr. Neroni asked some questions which, if answered honestly by the court, based on the law and the record in front of the court, would have eliminated the need for the Statewide Commission for Attorney discipline.

The dismissing judge, upon my information and belief based on documentary evidence in my possession, had out-of-court dealings, and, likely, received material benefits from hostile witnesses in the case and, likely, from defendants themselves, too.

I am starting to publish these dangerous and inconvenient questions tossed by the unscrupulous Judge Lawrence Kahn - who is well known since before his confirmation hearings for his unscrupulousness and who was sued by me in a separate pro se action (unlawfully dismissed before it was served by Judge Kahn's own court) for disclosure of perks Judge Kahn received from such hostile witnesses.

Here is the FIRST set of dangerous questions that Mr. Neroni posed, as of February 2, 2013, in his federal civil rights lawsuit Neroni v Zayas.

It is a fact that New York state does not clearly define what constitutes the "practice of law".

Since what constitutes "the practice of law" is not defined by law, at least five more questions arise:

1) what exactly does the State of New York license when it licenses "practice of law"?

2) what exactly does the State of New York prosecute when it prosecutes unauthorized practice of law (UPL) if what constitutes the practice of law is not defined?

3) aren't attorney licensing and UPL statutes and rules in New York unconstitutionally void for vagueness, overbreadth and allowing arbitrary enforcement?

4) isn't it true that New York UPL criminal statutes (there are several, one of them a felony) fail to give proper notice to the public as to what conduct the statutes prohibit to make criminal prosecution constitutional?

5) aren't all orders of suspension and disbarment ever issued by New York State courts void because courts have no authority to prohibit individuals to practice what the law does not clearly define?

These questions were considered by the federal court so dangerous that Mr. Neroni's access to that court to ask for redress of any future constitutional violations was blocked.

Publication of dangerous questions will continue.

Stay tuned.

Challenges against discrimination of disbarred attorneys tossed by a judge involved in behind the scene communications with the law firm of the bribed disciplinary prosecutor who obtained unlawful disbarment

On February 3, 2013, I filed a civil rights action on behalf of my husband Frederick J. Neroni in the U.S. District Court for the Northern District of New York.

The lawsuit was dismissed in two decisions, where the court refused to apply its own precedents and to follow the law, only to prevent a major overhaul in how attorneys in New York are licensed, disciplined and, if disbarred, how they are employed, what activities they may and may not engage in along with everybody else, and how they may be prosecuted for unauthorized practice of law.

State Defendants claim that Mr. Neroni is asking for too much of an overhaul of the attorney disciplinary and criminal justice system.

The court agreed.

The court - and judge - that agreed was Judge Lawrence Kahn, who was interacting with Mr. Neroni's opponents (Hiscock & Barclay, now Barclay & Damon) in another lawsuit in the same court through an organization called American Inns of Court and was likely receiving material benefits from such opponents, as well as had ample opportunities for ex parte communications and for being influenced by Mr. Neroni's competitors, including a disciplinary prosecutor John Casey, partner in the firm, who accepted private representation for money from retired judge Robert Harlem (now deceased) and his son attorney Richard Harlem in order to disbar Mr. Neroni - and escaped intact without criminal liability or discipline.

The interesting point is that the State of New York was handling public hearings in a court-created and court-run (without input by consumers) "Statewide Commission For Attorney discipline" to allegedly make attorney disciplinary process more fair and uniform for attorneys and more efficient for the consumers of legal services - while at the very same time ardently arguing against the overhaul of its attorney disciplinary system by fighting against Mr. Neroni's civil rights lawsuit.

Another interesting point is that New York State was handling those same public hearings while doing nothing to implement the mandate of the U.S. Supreme Court to overhaul attorney disciplinary system that is clearly in violation of federal antitrust laws (think Kim Davis times thousands of judges violating U.S. Supreme Court order).

Moreover, at the same time of holding those public hearings allegedly for the benefit of consumers (but without allowing consumers to participate in those hearings in any meaningful way), the State of New York continued to insist in federal court on anti-competitive measures against out-of-state attorneys by filing and prosecuting an appeal in a lawsuit that a licensed out-of-state attorney has won against New York State, declaring New York requirement of a physical office for out-of-state attorneys, but not for in-state attorneys, to be a violation of Privileges and Immunities Clause under the U.S. Constitution (Schoenefeld v State, appeal currently pending in the 2nd Circuit).

I will start publishing in this blog claims that Mr. Neroni has asserted in his civil rights lawsuit back in February of 2013, with an illustration that those same claims were within the trend of how the law develops in this country and around the world, and that Judge Kahn's stubborn and, possibly, financially incentivized, refusal to abide the law and to dismiss Mr. Neroni's civil rights lawsuit, no matter what the law says, constitutes misconduct in office requiring Judge Kahn's removal from the bench, senior status and all.

Case name and number in the U.S. District Court for the Northern District of New York is Neroni v Zayas et al., 3:13-cv-00127-LEK-DEP.

Case name and number in the U.S. Court of Appeals for the 2nd Circuit where Mr. Neroni is appealing pro se is Neroni v. Zayas, Case No. 15-2030.

I will publish a detailed analysis from the case which, I believe, is important not only for attorneys, licensed, suspended or disbarred, but also for the public.

The main issues of public concern as to treatment of disbarred attorneys is the use of criminal laws against such individuals to gag them and prevent them from presenting to the public, under the threat of criminal prosecution, information about judges and judicial candidates, and legal opinions about constitutionality of various existing and proposed laws.

This way the public is disenfranchised by being stripped of information necessary to form an informed decision to vote for a certain judicial candidate and not others, and stripped of opportunity for a full scope of information about validity of existing and proposed laws.

Thus, the issue of discrimination against disbarred attorneys are not only and solely issues of such disbarred attorney's personal aggrievements, but an issue of grave public concern.

Stay tuned as to detailed analysis of Neroni v Zayas claims, as well as background history of participants, presiding judges and those who likely influenced the presiding judges.

So you do not care about disbarred attorneys? Maybe, you should

I am starting this new blog because of the number of suspended and disbarred attorneys that have contacted me in regards to my Attorney Independence blog.

It appears that:

1) states consistently target for suspension and/or disbarment the following categories of attorneys:

• small firm or solo;
• not contributing financially to judicial campaigns;
• having no blood connections or friendships with the judiciary or other high-ranking governmental officials;
• criticizing misconduct of high-ranking governmental officials, through their public or even private statements or through their professional activity, in court pleadings
• having a good law practice that takes clients away from "well connected attorneys"
• attorneys who had the audacity to win - especially if it is a big time win - against well connected attorneys

I know about lawyer jokes.

I know that for most people the fate of a suspended or disbarred attorney is either a non-issue to which they are completely indifferent, or people assume that if an attorney is disbarred, that's what he or she deserved, and the more of "those lawyers" be disbarred the better.

That is - until those same people come across a problem of not being able to find an attorney to handle a "sensitive" issue like making a motion to recuse or filing a civil rights action because attorneys are deadly afraid for their reputation and license - and are afraid of possible and likely retaliation against them for making such a motion or filing such a lawsuit.

Suspension and disbarment is a problem not only for those attorneys who are suspended or disbarred. They will, most likely, find application for their intelligence and talent in another area - over time, with difficulty, but they will.

Yet, it is the public who is deprived of independent representation and is left only with "yes-men" (and women) or with the BNB (the brown-nosing bunch) who will sell their clients out in order to win a case and keep their license intact.

I have started this blog to document how exactly disbarred and suspended attorneys, often disbarred specifically for their GOOD work to protect the INDIGENT and the DISCRIMINATED clients, are treated after their license was taken.

As with my other blogs, I do not force anybody to read what I write.

But, I do believe that the public in general will benefit by the information that I am going to provide.

If a disbarred attorney is provided less rights than you, because of his identity as a disbarred attorney (that is, an individual whose law license was taken away - without a criminal conviction), expect that you will be discriminated in court "because" of some other bad status that you may have:

• a deadbeat parent;
• a poor person;
• an illiterate person;
• a disabled person;
• a woman with a brain (that's a bad one for many courts)

The Lady Justice is either blind or she is sighted.

By the way, the Lady Justice statue that stands near the chambers of the Chenango County Supreme Court Judge Kevin Dowd IS sighted - no kidding.

And boy does she reflect the reality of those chambers.

Yet, if the Lady Justice is sighted as to disbarred attorneys, she may be sighted as to you, too.

A disbarred attorney is still a living, breathing human being who has equal rights with everybody else - by the State and Federal Constitutions.

He or she is disbarred (suspended) - but not beheaded, while many courts consider such an individual as non-existent as far as the rule of law (if that rule exists, too) is concerned.

And no, I am not disbarred - at least not yet, as far as I know.   

But, since I fall into a lot of categories mentioned above for which states usually disbarred independent attorneys - I won't preclude that in the future.

You can read my never-ending story of disciplinary proceedings on my other blog, Attorney Independence, there is no need to duplicate it here.

There are documents published there as to how disciplinary courts violate federal antitrust laws, disregard mandatory precedent, disregard statutory and constitutional rights of attorneys, allow fabrication of court transcripts, deny already court-ordered evidentiary hearings, refuse to open up proceedings to the public and the press despite the attorney's specific request to do so - and even where disciplinary prosecutors attempt to file criminal charges against attorneys for blogging about their own misconduct and fraudulent behavior (indisputable and well documented).

This blog will be about the treatment by the courts, the public and the legal profession of suspended and disbarred attorneys on issues that have nothing to do with the practice of law.

For those who are interested in the subject - stay tuned.