532 LaGuardia Place # 349
New York, New York 10012
Office of Court Administration
25 Beaver Street
New York, NY 10004 BY FAX AND BY HAND
July 19, 2008
I am one of a group of ten New Yorkers who have filed federal lawsuits against the Office ofCourt Administration on grounds including obstruction of justice and official misconduct. All of our suits are substantially related to the claims of Ms. Christine Anderson, a former Investigating Attorney of the First Departmental Disciplinary Committee who was fired after reporting systemic corruption at the highest level of the DDC. I recently withdrew my federal lawsuit, because I felt that I had not yet exhausted every non-litigious recourse in resolving my grievances with the OCA.
Over the past several months, I have endeavored to communicate with Mr. Allan Friedberg and Judge John Lippman, to see if they would work with me to resolve my grievances regarding the OCA so that I might avoid re-filing my lawsuit. Sadly, my good faith efforts have been met with deceit, condescension and adamant adherence to the illegal practices oftheir predecessors, Thomas Cahill and John Buckley.
This letter to you is my final attempt to avoid re-filing my suit against the OCA. The behaviorof your subordinates at the DDC is so audacious, contemptuous and blatantly illegal that they appear to believe they have been given carte blanche to desecrate the rules and reputation of the First Department. I earnestly hope they are mistaken and that the reason they have not been held to account is that Your Honor has been unaware of the improprieties of Mr. Friedberg and his colleagues in their capacities as officers and representatives of the court for which you are responsible.
Violation and Distortion of Section 605.9
Though the list of improprieties perpetrated by Mr. Cahill and the DDC (and perpetuated by Mr. Friedberg) can be found in Ms. Anderson’s lawsuit and her related affidavits, this letter will focus on one specific practice, which is emblematic of the DDC’s disregard for the rules of the First Department and their propensity for protecting favored attorneys.
This practice is the illegal citing of “pending” or “related litigation” as an excuse to defer or close investigations of attorneys he wishes to protect. As I will demonstrate, not only does this practice directly violate of Section 605.9 of the Rules of the Unified Court System, but it leads to outrageous ramifications, including giving unethical attorneys a powerful incentive to improperly delay and prolong legal procedures.
In a letter dated 5/19/06 former Chief Counsel Cahill wrote: “Since your complaint involves parties that are in the midst of litigation, we have decided to close our investigation at this time.” The “parties” cited by Mr. Cahill were, at the time, not defendants in a civil case, but merely lawyers of counsel to parties in a civil case. Even after these lawyers withdrew as counsel in the case, Mr. Cahill’s successor, Allan Friedberg, continues to maintain that they are immune from investigation, solely because they had been of counsel to a party in the civil case at one time. Mr. Friedberg wrote: “As you know, there is pending litigation concerning the same or related facts which you allege here…Accordingly we have decided to close our investigation…The Committee…concluded that we should await the conclusion of the litigation”.
The DDC uses the words “pending” and “related” to refer to any litigation in which the accused lawyer is presently or was formerly involved as counsel. There is no provision in the Uniform Rules that allows abatement or deferment of investigations due to “pending” or“related” litigation. To the contrary, Section 605.9- the only section of the Unified Rules that deals with abatement of disciplinary investigations- is clearly intended to prohibit arbitrary, abatements of ethical investigations due to pending litigation.
605.9.1 states: “The processing of complaints involving material allegations which are substantially similar to the material allegations of pending criminal or civil litigation need not be deferred pending determination of such litigation.” 605.9.1 makes it absolutely clear that even if the ethical allegations are substantially similar to the civil or criminal case, this is not sufficient cause to close or even defer an investigation.Obviously, if the ethical allegations are not similar at all to the civil or criminal allegations,then 605.9 applies even more strictly, prohibiting the abatement of the investigation based merely on “related” litigation in another court.
Moreover, even if the subject of the ethical complaint is acquitted of substantially similar allegations in a civil or criminal case, that is STILL NOT SUFFICIENT to abate the disciplinary investigation against them. 605.9.2 states: “The acquittal of a Respondent on criminal charges or a verdict or judgment in the Respondent's favor in a civil litigation involving substantially similar material allegations shall not, in itself, justify termination of a disciplinary investigation predicated upon the same material allegations.
Acquittal of substantially similar allegations by a court of law in a case directly against accused attorneys does not exempt them from disciplinary investigation. Nevertheless, Mr.Friedman closed the investigations in my case not because the attorneys had been acquitted ofsimilar allegations in a civil case, not because the attorneys had been accused of similar allegations in a civil case, not because dissimilar allegations in the two cases arose from similar facts, not even because the attorneys are in “the midst of litigation”, but merely because the attorneys had at one time in the past been of counsel to a party in a case that isstill pending.
In my case, the civil case is still “pending” precisely due to the fact that the lawyers inquestion have broken disciplinary rules by “unnecessarily delaying and prolonging a procedure”, tampering with evidence, making false allegations, and many other egregious ethical infractions. As a result of Mr. Friedberg’s own private rule regarding abatement, these attorneys are allowed to unethically prolong the litigation precisely to avoid the ethical investigations meant to deter their unethical behavior. Mr. Friedberg’s bizarre rule is actually an incentive for delinquent lawyers to delay and prolong cases as long as possible!
The outrageous ramifications of Mr. Friedberg’s rule are illustrated in the example below:
Mr. A sues Mr. B, on the allegation that Mr. B threw a ball through Mr. A’s window.Mr. B’s lawyer then contacts Mr. A (who is represented by counsel) directly, and threatens to bring criminal charges against him if he doesn’t drop the suit against Mr. B.As a result of this unethical harassment, Mr. A files an ethical complaint with the DDC, The civil claim against Mr. B (of throwing a ball thrown through Mr. A’s window) is in no way similar to the ethical claims against Mr. B’s lawyer, which would include DR 7-104: Communicating with Represented and Unrepresented Persons and DR 7-105: Threatening Criminal Prosecution. Just because the ethical allegations against Mr. B’slawyer arose in the context of the pending broken window case, they are not “similar” or“related” to the civil allegations in any way.
Even if the ethical allegations against Mr. B’s lawyer were somehow “substantially similar” to the civil allegations against him, 605.9 deems this insufficient grounds to defer an ethical investigation. 605.9 does not even mention “related” or “pending” litigation because it would be patently outrageous for the DDC to allow Mr. B’s lawyer to continue harassing and intimidating Mr. A until the conclusion of the civil procedure -potentially for years-simply because the civil procedure is ongoing!
Under this scenario, if Mr. A files a disciplinary complaint against Mr. B’s lawyer, Mr. B’slawyer can simply cite Mr. Friedberg’s private rule, and be free to continue his abuses untilthe case is over, without so much as an admonition. If Mr. B’s lawyer can figure out ways to unnecessarily prolong and delay the litigation indefinitely, he will fare even better, because hewill be paid indefinitely, he will be allowed to intimidate Mr. A indefinitely, he will exhaust Mr. A’s finances and morale indefinitely, AND he will avoid ethical investigation indefinitely. On the other hand, what motivation does Mr. B’s lawyer have to resolve the case or cease his harassment? That is exactly why Section 605.9 was framed.
That is exactly why Mr. Friedberg and Mr.Cahill cannot be allowed to make up their own crazy rules.
De Facto Motions to Dismiss on Behalf of Accused Lawyers
Finally, the question of whether or not to commence a DDC investigation is procedurally akin to a civil court’s decision to take on a civil case. In the judicial context, if the stated claims and jurisdiction are appropriate to the court, the defendant is obliged to make a motion for dismissal, which is then considered by the court. There is nothing in the rules of the DDC that suggest a substantially different approach to vetting cases, but by citing “pending litigation”, Mr. Friedberg is making and adjudicating a de facto motion to dismiss on the attorneys’ behalf, with no input from the complainant. This is analogous to the Supreme Court undertaking and ruling on an independent investigation on behalf of the defendant to determine if a case against her is in their jurisdiction.
As it is uncontestable that my complaint refers to specific violations of specific LCPR rules by attorneys practicing law in the First Department, the jurisdiction is not in question.Therefore, the DDC’s only job is to send the complaint to the accused attorney. If that attorney has an argument as to why they should be immune from investigation (due to “pending litigation” or anything else), she or her attorney may make that argument, and the DDC must consider them in light of the (real) rules. It is not the DDC’s job to find reasonswhy the lawyers should not be investigated for complaints within their jurisdiction.
Notice, however, how Mr. Friedberg fills his letter of July 16, 2008 with paragraphs about the status of the “pending lawsuits” and discussion of certain judges dismissing claims (albeit irrelevant claims) against defendants (albeit irrelevant defendants). As I have pointed out adnauseum, even if Mr. Friedberg’s letter regarded the pertinent claims against the pertinent defendants, it would be entirely irrelevant by virtue of Section 605.9.2. What possible reason can there be for Mr. Friedberg to waste ink on irrelevant claims, defendants and decisions, other than to fool me into thinking they were relevant to the investigations of entirely distinct claims and defendants and therefore legitimate grounds for abatement?
Of the five complaints that I have filed with the DDC in the past three years, all have been against lawyers in Manhattan, all have cited specific violations of the LCPR and not one has been sent to the accused attorney. They have all been summarily closed due to “pending” or“related” litigation. Just as Mr. Cahill and Mr. Friedberg are not allowed to make up their own court rules, neither are they allowed to advocate for accused lawyers by creating and deciding sham, de facto “motions for dismissal. What they are doing is nothing less than obstruction of justice and fraud against the court.
As a taxpayer and citizen of New York City, I am demanding that the OCA investigate the illegal practices of the DDC, especially in regard to the abatement of investigations in directin violation of 605.9. It is the OCA’s obligation to investigate and rectify this outrageous situation and to punish those who have broken the law. If the OCA is too invested in this matter to fairly and effectively conduct such an investigation, it should be referred to the proper Federal authorities.
Judge Pfau; Over the past five years, I have encountered corruption, cronyism and conspiracy at every level of the Judiciary. When I received no good faith response from Mr. Cahill, Icontacted his successor, Mr. Friedberg. When I received no good faith response from Mr. Friedberg I contacted his immediate superior Judge Lippman. When I received no good faith response from Judge Lippman I contacted his immediate superior; Your Honor.
If you fail to respond in good faith, I will not bother to contact Judge Kaye. Judge Kaye is already well aware of the improprieties of the DDC. I will re-file my federal complaint naming all the parties who failed to act in response to the crystal clear butchering of Rules of the Court by high-ranking officials. By a “good faith” response, I mean a response that is honest concerned, eager to discover the facts and willing to act in earnest to rectify improprieties regardless of political considerations.
I hope and expect that you will live up to your reputation as a fair, courageous and uncorrupted Judge. If you choose to do the right thing, you will be regarded as a hero by millions of citizens and by history. I look forward to receiving your response as soon as possible.
Attachments: Letters to and/ or from Allan Friedberg, Tom Cahill and Jonathan Lippman