NY Ethics 'April Fools' Joke Ready

"Ethics Standards are useless if those overseeing compliance are themselves corrupt." (Frank Brady, 2009) 

New Ethics Standards Take Effect Tomorrow
The New York Law Journal by Joel Stashenko - March 31, 2009

ALBANY, NY - A new code of conduct for New York attorneys that goes into effect tomorrow should largely be familiar to lawyers who have practiced under the old standards, according to the chairman of the state bar committee that began developing the new code nearly six years ago. The format of the new Rules of Professional Conduct also should be familiar to lawyers from outside the state since they adopt the numbering and titling sequences of the American Bar Association's Model Rules of Professional Conduct, which have been accepted in part or in whole by 48 other states since they were adopted by the ABA in 1983. Former Chief Judge Judith S. Kaye and the four presiding Appellate Division justices, including new Chief Judge Jonathan Lippman, adopted the new rules late last year (NYLJ, Dec. 17, 2008). They are a modified version of proposed rules developed by the New York State Bar Association's Committee on Standards of Attorney Conduct that were approved in a piecemeal fashion by the bar group's House of Delegates in 2006 and 2007. About three-quarters of the new rules embody the current state code, with the remaining one-quarter lifted directly from the ABA's Model Rules or are ABA rules reworked for the state code.

Steven C. Krane, a Proskauer Rose partner and chairman of the state bar's standards committee, said New York lawyers may be unfamiliar with the numbers on the 43-page-long new rules, but not the concepts behind them. "The more I go around talking about them and lecturing on them and studying them, the more I realize they are, for the most part, consistent, if not identical to, the Code of Professional Responsibility," said Mr. Krane, who estimated that he has spoken to between 3,000 and 4,000 lawyers about the new rules. Differences between the old code and the new rules largely concern the more expansive definitions provided in the new guidelines, according to Mr. Krane. For instance, the new code declares that conflict waivers must be the product of informed consent confirmed in writing. "Informed consent," "confirmed in writing" and "writing" are all defined in the new rules, Mr. Krane noted. "I tell people that the most important rule is Rule 1.0 on terminology," Mr. Krane said. "If they read nothing else, they should read that and familiarize themselves with the terms that are defined."

Under the old code, which was adopted in 1970, oral conflict waivers were permitted. Mr. Krane called the requirement that the waivers now be in writing one of the "major" changes in the new rules. Professor Stephen Gillers of New York University School of Law said another major change is the abandonment of the way the code treated instances where lawyers discovered that their clients had provided false information to a court or another tribunal. The expiring code treats disclosure of confidential information by the lawyer, even to correct a wrong against another party in litigation, as a violation of attorney-client privilege. Under the new rules, the state has adopted the ABA model rules provision that a lawyer is required to disclose a false representation by a client, either intentional or unintentional, to the court in any criminal or civil matter.

'Clash' Seen

Ralph Halpern, also a member of the state bar committee, said the new rules 1.6 and 3.3 requiring lawyers to reveal client falsehoods "clashes with the common-law concept of the lawyer-client confidentiality." He predicted the validity of the new requirement would be litigated in the courts. Mr. Halpern was chairman of the standards committee in 1985, when the state bar's House of Delegates narrowly rejected the ABA model code. Mr. Halpern said some members were uneasy about having to reveal possible fraud by their clients, feeling it was a violation of attorney-client privilege. "That [opposition] has softened over time," Mr. Halpern, of Jaeckel Fleischmann & Mugel in Buffalo, said yesterday in an interview. "Lawyers didn't feel at that time they should be policemen. They said, 'We are advocates, not policemen.'"

Howard A. Levine, a former Court of Appeals judge who is also on the standards committee, said he has sensed an improved awareness by lawyers of their obligations under the old conduct code and, with "no radical" changes between the old rules and the new ones, he predicted that most attorneys should be up to speed on the new guidelines within a year.  Mr. Levine, now with Whiteman Osterman & Hanna in Albany, said the requirement that attorneys must take four hours of continuing legal education in ethical and professional conduct every two years to be re-licensed has been helpful in raising awareness of ethical standards. "Even if they can't cite chapter and verse immediately about which rule applies, they'll do the research or maybe talk to lawyers who are experts in the field," Mr. Levine said. Also, since 1983, new attorneys have been quizzed on the ABA model code as part of the multistate phase of the state bar exam. Mr. Krane said that about two-thirds of the attorneys in New York have been admitted to the bar since 1983.

Mr. Krane said an important feature of the new rules is that since they are numbered the same as the ABA guidelines and most other states' codes, it will become easier for lawyers in New York researching ethical and professional conduct questions to locate legal precedents and ethics opinions elsewhere in the country. Mr. Krane said soon-to-be-released commentary on the new rules will also provide extensive guidance on the guidelines.  Mr. Gillers questioned how precise lawyers' knowledge is of the conduct guidelines, despite the CLE and bar exam requirements. "What most lawyers think is, 'Look, the rules I have to know to stay out of trouble are pretty simple: Don't lie. Don't steal money. Don't ignore cases,'" Mr. Gillers said. "If you follow those three rules, you are going to be pretty safe against discipline." But he said ethical violations can result in grief for lawyers outside of the disciplinary process, such as suits filed against them for breach of fiduciary duty or legal malpractice actions or fee forfeiture. Joel.Stashenko@incisivemedia.com

Would-Be Judge Admits Theft

Would-be Edinburg judge admits $12,000 theft
The Albany Times Union by PAUL NELSON - March 30, 2009

SCHENECTADY, N.Y. — Brian Kedik, who was elected Edinburgh town justice but never took office, admitted stealing $12,000 from his former mother-in-law who lives in Rotterdam, according to his attorney Stephen Signore. The 33-year-old Kedik pleaded guilty this morning in Schenectady County court to fourth-degree larceny for taking the money from Jane DeMarco in 2004. At the time, Kedik was married to DeMarco's daughter. They are now divorced, Signore said.

As part of the plea deal that spared him from incarceration, Kedik agreed to pay back the money, which will happen by the end of the week, Signore said. He will be sentenced May 7 by County Judge Richard Sise. "It was too good a deal to pass up and risk going to trial," he added. Kedik was indicted by a Schenectady County grand jury on third-degree grand larceny and second-degree forgery. On the grand larceny felony alone, he could have faced 2 1/3 to 7 years in state prison, Signore said. In November, Kedik decided not take the office of town justice in his Saratoga County town after being elected without opposition. A week after Election Day, Kedik was charged with driving while intoxicated, driving with a suspended license and speeding. The case is pending, Signore said. Edinburg Supervisor Jean Raymond said this afternoon that the Town Board decided to leave the town justice post vacant and will consider whether to hold a new election or abolish the position.

Great News: New York is Corrupt AND Dysfunctional

The dysfunctional government in Albany: You guys are a disgrace!
The New York Daily News by KENNETH LOVETT - March 29, 2009 
DAILY NEWS ALBANY BUREAU CHIEF

It's time to clean up the mess in Albany!

New York’s state government — dubbed the most dysfunctional in the nation — is living up to its reputation now more than ever. In the last two weeks alone, a massive corruption scandal in the controller's office was highlighted in an indictment, the governor and Legislature were finalizing a budget deal containing massive tax hikes in complete secrecy and a state senator was indicted on charges of beating his girlfriend. A lack of public input and accountability has locked citizens out of their government and made the Capitol ripe for corruption and favoritism. "If the average person saw what's going on, they'd descend on Albany with torches and pitchforks like in the old Franken-stein movies," said former Assemblyman Thomas Kirwan, a Newburgh Republican. Reformers have been raising the alarm for years.

In 2004, New York University Law School's Brennan Center for Justice issued a scathing report calling the Legislature "dysfunctional" and saying three men - the governor, the Senate majority leader and the Assembly speaker - controlled legislation and made all the key decisions. In 2006, the center issued a followup report noting small changes but concluding most of the socalled reforms simply "codified the status quo." Last year, the center issued a third report, "Still Broken: New York State Legislative Reform," which found that despite some changes, there is still a long way to go. "The main structural problems are all still there," report author Lawrence Norden said. Still, reformers hoped change would come this year because one party, the Democrats, controls both houses and the governor's office. That hope, critics say, has not turned into reality.

How bad is it?

• There have been a string of high-profile scandals, indictments and convictions - including a governor caught frolicking with hookers, a controller forced out for using state employees to chauffeur his wife, and a Senate majority leader indicted for shady business dealings.

• The executive director of the state Public Integrity Commission, which is supposed to keep the executive branch honest, is under investigation.

• Lobbyists have a stranglehold on the Legislature. Relying on buttonholing and campaign contributions to legislative leaders, the lobbying industry, which raked in $171 million in 2007, can block good-government legislation for years.

• That stranglehold helps speed through dead-of-night laws favoring special interests, like insurance companies or labor unions, with little notice, no debate and virtually no dissent.

• Legislative leaders buy loyalty by awarding committee chairmanships and leadership posts with thousands of dollars in stipends - although some committees rarely, or never, meet. Members almost always vote the way they're told. n Notoriously lax campaign laws let legislators use campaign cash on meals, travel, cars and gifts.

• Financial disclosure forms are a joke, allowing lawyer legislators - and others - to hide outside income and client lists.

Who pays for all this? We do: with sky-high taxes, expensive policy, bad laws and laughably ineffective public servants. "You know the expression that politics is like sausage making?" said Blair Horner of the New York Public Interest Research Group. "In Albany's case, that might be an insult to the sausage." All this was supposed to change when Eliot Spitzer, the hard-charging state attorney general dubbed the Sheriff of Wall Street, was elected governor in 2006 on the promise of cleaning up the place. The self-proclaimed "steamroller" found it nearly impossible - repeatedly clashing with former Senate Majority Leader Joe Bruno (R-Rensselaer) and others - before he resigned in disgrace in March 2008 after getting caught in a prostitution scandal.

It's worse than ever

This year, reformers hoped the legislative gridlock would be broken when Democrats took control of the Senate, giving the party control of the governor's mansion and both houses of the Legislature for the first time since the New Deal. Instead, the situation in the Senate has been worse than ever. Three rogue Democrats held up the selection of Queens Democrat Malcolm Smith as new majority leader and extracted some leadership powers in return for their support. Major legislation, including a Metropolitan Transportation Authority bailout bill, has stalled because a slim two-seat majority makes it difficult to move much of anything. With Republicans standing together as a bloc, all it takes is for one maverick Democrat on any issue to keep it from moving. Issues many Democrats had long hoped would move - the legalization of gay marriage, the elimination of the Rockefeller-era drug laws and the toughening of rent regulations - have stalled. Making things tougher: The legislative process is almost entirely controlled by the leaders. Other states make it easier for rank-and-file members to move legislation forward. Unlike in most states, in New York, public hearings are seldom held on legislation, committees take their cues from legislative leaders and the two houses don't hold joint open committee meetings to hash out differences.

Legislative leaders buy loyalty by awarding committee chairmanships and leadership posts with thousands of dollars in stipends and doling out millions in pork-barrel spending for local projects ranging from Little Leagues to health care clinics. The leaders also control the once-a-decade redistricting process in which the legislative lines are redrawn, often to protect incumbents and a party's majority. "Most, if not all, of the problems in the Legislature that I experienced stem from the disproportionate power wielded by the party leaders, most especially the leader of the majority," former Sen. Seymour Lachman, a Brooklyn Democrat, said at a recent hearing on reform. "I witnessed members cede their independence and judgment to their leaders in return for favorable committee assignments, staff allocations, office space, funding for district projects, and financial and manpower support, if needed, at reelection time."

Public is shut out

Things were so bad that Kirwan, a Republican, and Sen. Liz Krueger, a Manhattan Democrat, jointly sued the legislative leadership in 2005 in an effort to have the power spread around. The suit failed. The public is often shut out of the process until the very end. Budget bills, negotiated in private, often are still warm from the copier when lawmakers vote on them with virtually no time for public review. The governor gives special permission for lawmakers to act without waiting the required three days for the bills to age to avoid having delicate compromise deals unravel under public scrutiny. Legislation pushed by powerful interests often pops up - and passes - late in the session with little warning and no public hearings. Other measures that may have strong public support stall because a leader won't let it come to a vote.

And, oh, the scandals. Ethics scandals. Corruption scandals. And the sex scandals.

In the last few months alone: n Two key figures close to former Controller Alan Hevesi were charged with offering access to billions of dollars in pension money to firms that paid them kickbacks. n Bruno and Assemblyman Anthony Seminerio (D-Queens) were indicted in separate cases on federal corruption charges that they mixed their private business interests with their public offices. n A tough-on-crime Parole Board member, former Assemblyman Chris Ortloff (R- Plattsburgh), was charged with trying to solicit sex over the Internet with what he thought were two young sisters. n Gov. Paterson's choice to head the Parole Board, Felix Rosa, withdrew his name from consideration after an allegation arose that he exposed himself to a fellow Parole Division employee in the mid-1990s. n Herbert Teitelbaum, executive director of the Public Integrity Commission, is under investigation over allegations he tried to protect Spitzer from a probe into whether he used state troopers to spy on Bruno.

Controlled by lobbyists

The ethics panel that over-sees lawmakers has done virtually nothing over the years. The former Lobbying Commission - long considered the one effective oversight body - was folded into the Public Integrity Commission and its bulldog executive director fired. "The problem now is there is no cop on the beat," said Barbara Bartoletti of the state League of Women Voters.

Transparency is another major issue. Lawmakers are required to file financial and ethics disclosure forms, but they are heavily redacted when made public. That means, for instance, it's impossible to know how much Assembly Speaker Sheldon Silver (D-Manhattan) makes in his role with a prominent trial law firm or who his clients are. Albany is also a town controlled by lobbyists, an industry that has roughly doubled in size - from $92 million in 2003 to $171 million in 2007. Lobbyists spend their days discussing legislation at the Capitol with lawmakers and their nights hopping from one campaign fund-raiser to another, delivering donation checks at each one. New York's lax campaign laws allow legislators to use campaign cash on meals, travel, cars - and even gifts and flowers - as long as they aren't for very loosely defined personal reasons.

Good-government groups have attacked Paterson for dropping Spitzer's reform mantle. They note there has been no push for campaign finance re-form. They and a handful of lawmakers want to create an independent redistricting commission to take politics out of the process. There may be some hope on the horizon: Senate Democrats have formed a bipartisan committee designed to develop rules to make their house more open. The committee has been considering a host of rules changes that would include strengthening the committee process, making it easier for all rank-and-file members to move bills to the floor for a vote and providing more openness. If the Senate approves re-form measures, Norden hopes the Assembly will follow suit and open the process, not just to the public, but to rank-and-file members as well. "I'm not saying that they will, but I've got to have some hope," Norden laughed.

NY Daily News: NY Lawmakers Worst of Worst

Capitol offenses: New York's Legislature is the worst of the worst
New York Daily News EDITORIAL - March 29th 2009

Of the people. By the people. For the people. Those precepts are the birthrights of self-governing citizens in a representative democracy. But they do not apply in New York. Here, "Damn the people" is more like it. The government of this great state has become a civilization unto itself, separate and apart from the 19 million men, women and children who are supposedly in charge. It has become a closed, unaccountable society, afflicted by corruption. The rot emanates from a Legislature whose ways and procedures bear no resemblance to anything ever written in a handbook on U.S. civics. Legislation is drafted in secret and negotiated in secret. No record is kept of debate because there is no debate. Bills as large and complicated as the state budget are introduced and passed in a matter of hours - unread by anyone but the bosses.

The Daily News today begins a series that shines a glaring light on the open, disgraceful scandal that is Albany. It makes for timely reading because the Legislature is in the thick of the worst backroom dealing in years. Battered by an unprecedented national economic meltdown, New York is suffering an enormous, well-chronicled fiscal crisis. Spending must be slashed, or taxes must be raised, or both - all within the next few days. But no one has any idea what proposals Gov. Paterson, Assembly Speaker Sheldon Silver, Senate Majority Leader Malcolm Smith, Assembly Minority Leader Jim Tedisco and Senate Minority Leader Dean Skelos have put on the table. Beyond the most general outlines, no one outside a small circle knows what programs will be cut and by how much, or how high certain taxes will rise. Although politically connected lobbyists have been hard at work, the public at large has had no say over any of the matters.

Neither house has introduced a budget bill, let alone held a hearing. Both houses have blatantly disregarded rules requiring them to settle differences in public in conference committees - standard in Congress and state legislatures across the country. But not in New York. In New York, lawmakers can do as little as they please in the open. Because they have, with methodical efficiency, rigged the system to deny would-be candidates fair shots at challenging incumbents. Then, established as impregnable, they have all but eliminated ethics and financial disclosure rules. Agencies charged with policing conflicts of interest and worse have been eviscerated. Sure as night follows day when politicians operate without public accountablity, Albany has descended into a culture of chiseling and outright crime. Soon we'll be able to establish an Indictment of the Week club. Whose fault is all this? In the largest sense, we have met the enemy and he is us. We haven't thrown the bums out, so they respond to all criticisms by claiming to be beloved of the people. Which is, of course, crap. Next to blame are rank-and-file lawmakers. They have surrendered their initiative and independence to bosses who buy loyalty with extra pay and perks. And the pols sell cheap.

New York deserves much better. Over the coming days, we will lay out a reform agenda, calling for specific actions in areas ranging from redistricting to establishing a muscular, independent investigative authority.We'll do so understanding that those who can make change have grown quite comfortable with the way things are. Nothing will happen until even a few lawmakers recognize that they have devalued and demeaned the offices to which they were elected. Put most simply, they need to regain their self-respect.

Prosecutorial Misconduct and Corruption of Justice

Vindicated, but Still Not Freed From Court’s Injustice
The New York Times by MICHAEL POWELL - March 25, 2009

He has lived in the shadow of this monster for 21 years, serving time in a maximum security prison, and — even after his conviction was overturned and he was released in 1992 — carrying the taint that comes with being accused of child abuse. This week, the State Court of Claims recognized his decades of suffering and awarded him a large settlement. But he still has not seen his daughter, and so he has not fully regained his former life. Amine Baba-Ali, a father wrongly convicted of raping and molesting his 4-year-old daughter, is the first person ever held by a state court to have satisfied every facet of the unjust-conviction law that he sued New York State under, according to the court’s decision. His lawyers proved that the Queens district attorney’s office fraudulently prosecuted him for a crime he did not commit. The court awarded him $2,093,428.

But Mr. Baba-Ali, 52, cannot shake the sense that this case will haunt him for a lifetime, not least because his daughter, now 26, was forever removed from him once he was convicted. He has not seen her for two decades, and has no idea where she is living. “Though I am thankful, the fact of the matter is that I’ve lost my daughter,” Mr. Baba-Ali said in an telephone interview from his Manhattan apartment on Tuesday. “I’ve lost the most important part of my life.” The state attorney general’s office, which represented the state in Mr. Baba-Ali’s lawsuit, said it was examining the judgment closely and could appeal it. Mr. Baba-Ali and his lawyer, Peter Wessel, fought his conviction for 20 years, beginning when Mr. Baba-Ali was in an 8-by-10-foot prison cell in the Catskills.

In the late 1980s, in the midst of a nasty divorce, Mr. Baba-Ali’s wife had accused him of raping their daughter during a custody visit at his Queens apartment. At nearly every turn, Mr. Baba-Ali’s case became a study in the miscarriage of justice, according to the Court of Claims. Under District Attorney John J. Santucci, Queens prosecutors obtained an indictment of Mr. Baba-Ali in 1988 on charges of rape, molestation and incest, and he was convicted in November 1989. But prosecutors ignored medical evidence that appeared to prove his innocence, then failed to disclose it to the defense until a few days before the trial, the courts have said. The conviction of Mr. Baba-Ali, Judge Melvin L. Schweitzer of the Court of Claims wrote in his decision, released on Monday, “was procured by prosecutorial misconduct that was tantamount to fraud.”

The assistant district attorney who tried the case, Elizabeth Loconsolo, is now a deputy attorney for the Nassau County comptroller. She said on Tuesday that she has no second thoughts about her actions in the case. Dr. Nadine Sabbagh, then a city health department employee, was the chief medical witness against Mr. Baba-Ali during his trial. She claimed to have found evidence that Mr. Baba-Ali had raped his daughter multiple times, breaking her hymen. Her testimony was essential in gaining a conviction and a prison term of 8 1/3 to 25 years.

Mr. Baba-Ali also suffered from poor representation by a court-appointed public defender, who failed to subpoena two doctors who would have testified that their earlier examinations of the girl found no evidence of sexual abuse, according to a state appeals court, which overturned his conviction in 1992, and ordered a retrial. That lawyer was later barred from the public defender’s program. Before deciding whether to retry Mr. Baba-Ali, Queens prosecutors asked a doctor at a New York hospital to conduct a second examination. That doctor found that the child’s hymen was intact and saw no evidence of abuse, the Court of Claims said in its decision. Prosecutors quickly dropped the case.

Judge Schweitzer was scathing about Dr. Sabbagh’s testimony: “The only witness who provided evidence of such abuse had lied, and in fact there was no credible evidence his daughter had ever been molested.” Dr. Sabbagh is now in private practice in Queens; a call placed to her office Tuesday afternoon was not returned. Mr. Baba-Ali said his time in a maximum security state prison continues to haunt him: He stayed in his apartment for many weeks after his release from prison. A book editor and a translator before his conviction, he now works as a supervisor for a car parking concession. Mr. Baba-Ali, who has remarried, lives with the knowledge of something else: no matter how many judges declare him flatly and unequivocally innocent, he will remain shadowed by child abuse charges for the rest of his life. As the Court of Claims noted in its decision, the Census Bureau turned him down for a job because of the conviction.

And despite a ruling in his favor in Family Court, he never succeeded in seeing his daughter again. Her court-appointed law guardian reported back, after all those years and accusations, that his daughter no longer wanted to see him. Judge Schweitzer’s decision is nearly poetic in its description of loss. “For claimant’s mental anguish and degradation occasioned by being labeled a child molester of his 4-year-old daughter; for the irretrievable loss of his relationship with his daughter promixately caused by his conviction; for his loss of liberty into the most fearsome maximum security prison environment that an innocent man may be thrust,” the judge said, he was awarding him $2 million.

Chief Judge Lippman: Judges Matter

Trust judges in drug reform
The Albany Times Union by JONATHAN LIPPMAN - March 25, 2009

Albany is abuzz with proposals and counter-proposals to reform New York's drug sentencing laws, commonly known as the Rockefeller Drug Laws. Among the issues being debated are which drug offenders should be prosecuted and incarcerated, which offenders should be diverted to drug treatment and whether these determinations should be made by judges or by prosecutors. How these issues are resolved will have important consequences for enhancing public safety, reducing prison expenditures and ensuring fairness in drug sentencing. In crafting a solution, it is imperative that policymakers be mindful of the critical role that judges perform in the successful outcome of these cases. No matter the final form of legislation negotiated by the Legislature and the governor, it must affirm one key value: Judges matter. Starting in the mid-1990s, well before reform of the Rockefeller Drug Laws was a politically viable possibility, the New York State Court System began experimenting with judicially monitored treatment as an alternative to incarceration. Specific practices in our "drug courts" vary from jurisdiction to jurisdiction, but in every model addicted offenders submit to substance abuse treatment monitored by the judge. If the offenders successfully complete treatment, the charges against them are dismissed or reduced. Those who fail are sent to jail or prison.

Unlike other efforts to link offenders to treatment, the New York model emphasizes rigorous accountability. Judges closely monitor each offender's compliance through regular drug testing and ongoing court appearances. The judge encourages progress by administering rewards and sanctions. There is ample evidence that this carrot-and-stick approach makes a difference. The average one-year retention rate in treatment for drug court participants in New York is 66 percent. By contrast, only 10 to 30 percent of addicts who enroll in treatment voluntarily are still active in treatment one year later. More important, a statewide evaluation completed by the Center for Court Innovation documented a 32 percent reduction in recidivism among those who participated in judicially mandated treatment. Another study documented $9,488 in government savings — mostly in reduced incarceration costs — per drug court participant. Two factors have been crucial to our success with addicted offenders. The first is motivational. There must be clear legal incentives for addicts to complete treatment. The knowledge that failure in treatment can lead to incarceration is a powerful inducement to stick with the program, even in the face of the inevitable obstacles and relapses. In fact, felony offenders tend to do better than misdemeanor offenders in treatment, in part because the consequences of failure are greater. The second key element is judicial supervision. Outcomes are consistently better when addicted offenders are required to appear biweekly before a judge, which underscores a message of accountability. The impact of appearing regularly before a judge is especially pronounced for high-risk offenders who have previously failed treatment. Judges can ensure that treatment is a real sentence for them, not just a get out of jail free card.

New York's court system has shown that treatment, when combined with clear legal incentives and active judicial involvement, can be successful. We know what works. And that's where reform of the Rockefeller Drug Laws comes in. New York's drug courts now admit 2,600 new felony offenders each year, a small fraction of the 43,000 new felony drug arrests that come through the system. While not every case is appropriate for diversion to treatment, many more offenders could benefit from the opportunities that judicially monitored alternatives to incarceration provide them. So the bottom line of Rockefeller Drug Law reform is crystal clear. Above all else, legislative reform must recognize and bolster the critical role that judges perform in these cases. By expanding judges' discretion to divert more offenders to treatment, the legislation that emerges can serve the public interest by enabling the courts to do more of what we have been doing for years — using the authority wielded by judges to help addicted offenders turn their lives around, making New York a safer place for all of us. Jonathan Lippman is chief judge of New York.

Six NY Lawyers Busted for Not Paying Taxes

State charges 6 Rochester-area lawyers with not filing taxes
The Rochester Democrat and Chronicle by Claudia Vargas - March 27, 2009

Six area lawyers, including a town supervisor, are facing felony charges of not filing or paying personal state taxes in more than three years as part of an increased effort by the state Department of Taxation and Finance to crack down on tax delinquent professionals. Deputy Commissioner of Enforcement for the Department of Taxation and Finance Bill Comiskey said the department launched a professional non-filer project in late 2007 that targets people in professional fields, from business owners to doctors, who do not file their taxes. The department increased the number of statewide investigators from just over two dozen in 2007 to about 125 today. Ten of those investigators are in Rochester. Karolyne N. Armer, David R. Coletti, Nat O. "Buddy" Lester III, Paul W. Martin, Steven J. Seidman and D. Scott Young were arraigned Thursday in Rochester City Court on separate charges of failing to file returns for three or more consecutive tax years while having a tax liability in each of those years, a Class E felony. Lester submitted a resignation letter from his position as Sweden supervisor on Monday.

The six lawyers pleaded not guilty Thursday and the charges against them will be heard by a grand jury. The department estimated that all together the six lawyers failed to report more than $1.4 million in income and failed to pay more than $84,000 in tax liability. Tom Bergin, a spokesman for the Department of Taxation and Finance, said he was unable to release the amount each lawyer owed in taxes because not all figures were included in the criminal complaint making them public. If convicted, each lawyer could face up to four years in state prison and lose his or her law license under State Judiciary Law. If a lawyer is charged with a crime, his or her license is not affected, said Dan Drake, principal counsel of the Attorney Grievance Committee of the 7th Judicial District. But if a lawyer is found guilty of a New York state felony, the lawyer is automatically disbarred.

The six lawyers were not informed of the investigation until each was served a subpoena in late January or early February. Had the lawyers not owed money for tax liability, they would have faced misdemeanor charges instead, Bergin said. What elevated their charges to felonies, he said, is that not only did they fail to file taxes for more than three years but they also owed money for each of those years. "We want to motivate the hundreds of thousands of non-filers (to file)," Comiskey said. "We are coming." Comiskey said the department likes doing large round-ups of non-filers to get attention and encourage those who have not filed their taxes to file. The department's investigators throughout the state have had several round-ups in the last month, including a group of three Manhattan business owners who were charged in separate felony cases for failing to report millions of dollars in taxable sales and for underreporting income. The criminal charges of the six Rochester-area lawyers were the result of an investigation by the Rochester Special Investigations Unit of the state Department of Taxation and Finance, which was created just over a year ago.

Here's a list of those arraigned Thursday:

Armer, 59, of 449 Black Walnut Drive, Greece, a solo practitioner in domestic relations and divorce law with offices in Penfield, was charged with three felony counts of failing to file personal income tax returns for tax years 2001 to 2007. According to court documents, Armer told a Department of Taxation and Finance auditor in February that she had failed to file personal income tax returns in recent years because of "bookkeeping problems." Armer stated to the auditor that that she had three different bookkeepers since 2001 and realized that charges were not filed correctly in her book. "She felt that the deductions may have been overstated, thus she did not feel they should be filed," court documents stated. Armer did not return a call for comment.

Coletti, 44, of 119 Moxon Drive, Greece, a partner in the Rochester law firm of Christiano, Gallant & Coletti, was charged with two felony counts of failing to file personal income tax returns for tax years 2004 to 2007. Coletti filed his taxes for taxable years 2004 to 2007 on Jan. 28, after being notified that the department was conducting a criminal investigation, and paid $10,000 of the total unpaid personal income tax liability of $18,168. Coletti had no comment Thursday.

Lester, 48, of 20 Timber Trail in Brockport, the sole member of the Brockport firm of Lester & Lester and the supervisor for the town of Sweden since 1998, was charged with two felony counts of failing to file personal income tax returns for tax years 2004 to 2007. According to court documents, Lester told tax investigators that he fell behind on taxes after the death of his father in 2003. Lester said his father had run the legal practice and Lester had no experience running it. He also said he was unfamiliar with the accounting aspects of the firm and therefore fell behind. Lester had no comment Thursday.

Martin, 49, of 69 Blue Ridge Road in Penfield, a member of the Fairport law firm of Fix, Spindelman, Brovitz & Gold since 2008, was charged with four felony counts for failing to file personal income tax returns since 1998. According to court documents, Martin told a Department of Taxation and Finance auditor that after being laid off from a law firm in 1999, he "basically survived on savings and help from family when he wasn't making enough to survive" and therefore he did not think he was required to file taxes. Martin did not return a call for comment.

Seidman, 52, of 118 Beckwith Terrace in Rochester, a solo practitioner in domestic relations and divorce law with offices in Pittsford, was charged with a single felony count of failing to file personal income tax returns for tax years 2005 through 2007. According to court documents, Seidman told a Department of Taxation and Finance investigator that "his bookkeeper had messed up his records to such an extent that he could not figure out his income." Seidman had no comment Thursday.

Young, 48, of 21 Deer Path in Honeoye Falls, a partner in the Rochester law firm of Ashcraft, Franklin & Young, was charged with four felony counts of failing to file personal income tax returns for tax years 2002 through 2007. According to court documents, he told a Department of Taxation and Finance auditor that he had "serious financial problems" in the last several years and did not have funds to pay his taxes. Young did not return a call for comment.
Comiskey said people who have not filed their taxes for previous tax years should consider contacting the department's Voluntary Disclosure Program to avoid penalties and possibly criminal charges. He added that the Rochester lawyers would have been eligible for the program before the criminal investigation began. "Hopefully they see this as an incentive to do the right thing," he said.  CLVARGAS@DemocratandChronicle.com

Additional Facts
State tax amnesty program available

The state Department of Taxation and Finance started a "Voluntary Disclosure" program that offers eligible taxpayers a form of tax amnesty and helps taxpayers clean up old tax liabilities while avoiding punitive actions such as criminal charges and significant monetary penalties. About 1,700 people in New York state participated in the program since it began last year. Department officials say those who have not filed their taxes in one or more years and owe money will avoid all penalties if they come forward through the disclosure program. However, if an investigation has begun into a particular tax delinquent, that person is not eligible for the program. For more information about the program, go to www.nystax.gov.

********************************************************

The New York Law Journal - News Watch - March 27, 2009
Six NY Lawyers Busted for Not Paying Taxes

Six lawyers in the Rochester region, one of them a part-time town supervisor, have been charged with failing to pay state income taxes for three years or more. Officials say the Town of Sweden's supervisor, Nat Lester, resigned from his post after being charged along with lawyers D. Scott Young, Karolyne Armer, David Coletti, Paul Martin and Steven Seidman. All six pleaded not guilty at an arraignment yesterday. Investigators with the Department of Taxation and Finance estimate the lawyers failed to report a combined $1.4 million in income. If convicted, they could lose their licenses and get up to four years in prison. Authorities say the lawyers acted independently and their cases are not connected.

Rate Your Judge on "Robe Probe"

Completely Legal
The Journal News Legal Blog

GO BEHIND THE BENCH TO EXAMINE THE COURTS AND CASES IN THE LOWER HUDSON VALLEY.

Rate your judge on “Robe Probe”
March 25, 2009

There’s a website called Robeprobe.com, and if enough attorneys and their clients in the Lower Hudson Valley find out about this, things could get very interesting.  Basically, it’s a rating system for judges at all levels, from U.S. Supreme down to municipal judges. Even judges from other countries are listed. Billing itself as “the world’s most trusted judge rating site” (like there are so many others), the site’s search engine asks you to choose the jurisdiction (state, county, municipal, appellate, etc.) then type in the name of the judge and give them one to 5 stars. If your judge isn’t listed, you can add him/her to the list. I typed in a few names of judges from Westchester County. The only ones who were listed were State Supreme Court Justices Lester Adler and Richard Molea, and county Judge Barbara Zambelli. Judge Francis Nicolai, the court administrator for the 9th Judicial District, was listed, as was Court of Appeals Chief Judge Jonathan Lippman – the top judge in New York state. No one has rated them yet, so if you’re so inclined, you know where to find them. 

Morganthau Reportedly Taking Second Look at 'bad' Cases

LUSTY LAWYER
The New York Post by KIERAN CROWLEY - November 27, 2006

Attorney Taped 'Demanding Sex'

'Devil' Advocate: Allen Isaac was fired form his law firm after Luisa Espostio sued him, alleging he wanted sex for taking her case.

November 27, 2006 -- A woman claims in a $70 million lawsuit that her former lawyer demanded oral sex in his Wall Street office - and authorities failed to prosecute, although she recorded him admitting it. "The Manhattan District Attorney's Office and the Police Department have absolute, unquestionable proof of a sexual assault, but because that predator is a well-known lawyer, nothing has been done," said alleged victim Luisa Esposito, 48. "There was a cover-up. I told the DA's office I'd take a lie-detector test, but they never gave me one - because they know I was telling the truth." She said she had approached the lawyer, Allen Isaac, 72, a married father of three from North Woodmere, L.I., about a case involving a traffic accident.

In addition to asking for sex, he asked her to send "sexy pictures of myself to his home" - along with a list of sex acts she could no longer perform because of her accident, she said. On a subsequent visit, on Oct. 7, 2005, she wore a recording device, attached by a friend. She played the recording for The Post as well as the DA. Isaac is heard saying he took her case because "you had a charming thing for me. I don't know, maybe you got big t-ts." He admitted on the tape that he'd asked for sex and that she'd said no. "Like it's a big deal for 30 seconds," he said. Isaac said the sex demand "was a test, and you flunked and I flunked." Isaac then demanded sex again: "What did I ask for in return? What did I ask for? B- - - job. Am I going to get it?" "You still want it?" Esposito asked. "Yeah," Isaac said.

Esposito tried to delay by saying she would "take care of you when the case is over" - a phrase she said meant she would report him to authorities. But Isaac demanded an answer. "No," Esposito responded, breaking down in tears. Her civil lawyer, Jeff Lisabeth, said the suit names Isaac and his law firm, which dumped him after the suit was filed. He believes the firm knew what Isaac was up to, and "not to do anything about it . . . is almost as heinous" as the alleged acts. The firm did not return calls for comment.

Manhattan DA Robert Morgenthau also refused comment, and the detective assigned to the case did not return calls. Esposito also notified the Appellate Division's Departmental Disciplinary Committee, which investigates lawyer misconduct. In a written reply to the agency, viewed by The Post, a lawyer for Isaac admitted, "The discussion, on at least one occasion, shifted to sex and Mr. Isaac asked Ms. Esposito for oral sex and this time she said no. "Though it was wrong to suggest any sexual contact between them, Mr. Isaac foolishly and wrongly believed in his own mind that it was permissible because he and Ms. Esposito had a relationship apart from the attorney-client one," said the lawyer, Michael Ross. kieran.crowley@nypost.com

Trial Lawyers' Boon

TRIAL LAWYERS' BOON
The New York Post by FREDRIC U. DICKER - March 25, 2009

ALBANY, N.Y. -  Gov. Paterson wants to hand the state's powerful trial lawyers a huge cash bonanza by rolling back a two-decades-old reform law that capped legal fees from medical-malpractice awards, The Post has learned. The rollback, long sought by the Trial Lawyers Association who since 2004 have donated more than $2 million to top state politicians, including Paterson and Assembly Speaker Sheldon Silver was discussed Monday night as part of the secret state budget talks being conducted at the Capitol between aides to the governor and legislative leaders, four sources said. It was described as part of a "package" of medical-malpractice legislation that would include in what a source close to the talks said was an effort to tamp down objections from the state Medical Society a one-year freeze on malpractice-insurance premiums for doctors and other health-care professionals. "They were told Monday night that this is something the governor really wants," said a source briefed on the meeting. Raising the fee cap is a move fought for years by insurance companies, the Medical Society and other health-care groups. It would generate millions of dollars in windfall earnings for some of the state's most politically influential law firms including Weitz & Luxenberg, where Silver is employed. It would also benefit lawyers at Meyer, Suozzi, English & Klein, the Long Island firm where Paterson's father, Basil, is a partner.

Joseph Baker, a top health adviser to Paterson, has begun informing interested parties that the fee-cap rollback is likely to occur, a source who said he had spoken with Baker told The Post. A spokesman for Paterson refused to say if a fee-cap rollback was under discussion. Paterson received a $54,900 contribution from the trial lawyers' LawPAC political action committee after becoming governor last year and a total of $78,900 since 2005, state Board of Elections records show. LawPAC separately contributed more than $200,000 to the state Democratic Party last year. A medical-malpractice reform law, passed at the behest of Gov. Mario Cuomo in 1986, capped the money lawyers can receive as a result of successful lawsuits. The law limited payments at 30 percent for the first $250,000 in judgments, 25 percent for the next $250,000, 20 percent for the following $500,000, 15 percent for the next $250,000 and, finally, at 10 percent for amounts over $1.25 million. Under Paterson's proposal, all the caps would be lifted and a 33 percent commission on the total award would be authorized, according to the source who spoke to Baker. "It would be a bonanza for lawyers," said a source familiar with the proposal. Silver, who has repeatedly refused to publicly disclose how much he is paid by Weitz & Luxenberg, has long been described as the trial lawyers' most powerful friend in state government.  fredric.dicker@nypost.com

Fifteen Years of Hell Over: Governor Paterson Appoints Justice Gonzalez

FOR IMMEDIATE RELEASE:
Office of the Governor - March 24, 2009

GOVERNOR PATERSON APPOINTS JUSTICE LUIS A. GONZALEZ AS PRESIDING JUSTICE OF THE APPELLATE DIVISION, FIRST JUDICIAL DEPARTMENT

Governor David A. Paterson today announced the historic appointment of Justice Luis A. Gonzalez to serve as Presiding Justice of the Appellate Division of the Supreme Court for the First Judicial Department.  Justice Gonzalez has been an Associate Justice on the Appellate Division, First Department for the last seven years. He has held a variety of civil, criminal and administrative judicial posts. He was the Administrative Judge of the Bronx Supreme Court from January 1999 to March 2002. In 1998, he served on the Appellate Term, First Department, and from 1993 to 1997 was a Justice of the Supreme Court, Bronx County. He was an Acting Justice in that same court in 1992 and from 1987 to 1992 was a Judge of the Civil Court of the City of New York. From 1985 to1986 he was in the Housing Part of the Civil Court, and prior to that was a Hearing Officer with the New York State Division of Housing and Community Renewal. From 1980 to 1981 Mr. Gonzalez was General Counsel of the South Bronx Community Housing and Development Corporation and from 1978 to 1980 was General Counsel to the Commonwealth of Puerto Rico as legal counsel to the National Director. Mr. Gonzalez was in private practice from 1976 to 1978 and was an Investigator with the New York City Department of Investigation from 1975 to 1976.

Justice Gonzalez, who is the first Latino to be appointed to this position, received his Bachelor of Arts degree from Eastern Mennonite University in 1968 and his Juris Doctor from Columbia University School of Law in 1975. “Throughout his career, Justice Gonzalez has displayed the strength of character and profound respect for the law that makes him an outstanding choice,” said Governor Paterson. “Justice Gonzalez has a compelling and inspiring life story and I have no doubt that he will continue to serve New Yorkers with great distinction. He is a true leader” Justice Luis A. Gonzalez said: “I am humbled and grateful to the Governor for entrusting in me the stewardship of the Appellate Division, First Department. I am committed and dedicated to preserving the preeminence that this court enjoys in the legal community. I am very much aware of the historical importance of this appointment and his trust and faith, I repeat, will always be appreciated.”

The First Department Judicial Screening Committee submitted seven names, each a sitting member of the court, to the Governor, all of whom were deemed “highly qualified.” All of the seven candidates displayed integrity, independence, leadership, intellect, legal ability, judgment, temperament and experience.  Governor Paterson added: “I was presented with outstanding candidates from which to choose and I salute each of them. Justice Gonzalez will assume leadership of a very talented and tremendously significant court.” Under the New York State Constitution and Judiciary Law, the Governor has the authority to appoint the Presiding Justice of each Appellate Division from among those who have been elected as Justices of the Supreme Court. The Governor’s appointment is not subject to Senate confirmation.  The annual salary for the Presiding Justice is $147,600.

Governor Asked to Confront Presiding Judge Candidates on Corruption

Integrity in the Courts

ExposeCorruptCourts.blogspot.com

“Injustice anywhere is a threat to justice everywhere.” (Dr. Martin Luther King, Jr.)

March 24, 2009

The Honorable David Paterson,
Governor of The State of New York
The State Capital
Albany, New York 12224

Via U.S. Mail & facsimile 518-408-2549

RE: Appointment of Presiding Justice of Appellate Division, First Department

Dear Governor Paterson:

As you consider whom to appoint as the next Presiding Justice of the Appellate Division, First Department, we respectfully ask you to consider the following.

As you and your staff are fully aware, our research has revealed, and fully documented, a troubling state court “ethics” oversight structure that is itself corrupt. We have documented countless examples where the law, attorneys, litigants, state employees and, in fact, judges have been targeted for annihilation simply because of a political whim or from the vengeful, misguided desires of a few. Conversely, we have evidence of many outrageous and criminal acts by certain individuals within and about the state court system that have been substantively overlooked for no other reason than their favored position or political affiliation.

What you might not know is that within the last 30 days, we presented three (3) judges to appropriate federal entities in Washington, D.C. who personally appeared in support of the need for extraordinary measures to deal with the outrageous conduct of the New York State Commission on Judicial Conduct, which is irreversibly corrupt, statewide attorney "ethics" committees and, specifically, the Manhattan attorney “ethics” committee, the Departmental Disciplinary Committee (“DDC”). (Incidentally, we have over two dozen judges who will similarly testify as to the corruption within New York’s “ethics” entities.)

We believe that any candidate for the position of Presiding Justice of the Appellate Division, First Department, and who will be responsible for all DDC activity, should adequately review and be able to sufficiently deal with the current and past criminal acts conducted at the DDC, mostly under the supervision of DDC chief counsel Alan Friedberg, his predecessor Thomas Cahill, and at all times under deputy chief counsel Sherry Cohen.

Over the next few days we will specifically list for you some of the many criminal acts at the DDC. Meanwhile, we ask that you ask every candidate for Presiding Justice of the Appellate Division, First Department, two questions:

(1) Have you read “The Murphy Report?”

(available at the bottom of page one at www.FrankBrady.org); and

(2) Are you aware of the allegations of state and federal criminal acts at the DDC

(available at www. ExposeCorruptCourts.blogspot.com—In the upper left search box, use search words: “Friedberg” and “Cahill” and “DDC”)

Your gubernatorial presence has renewed the promise of hope to the great people of New York. We have long yearned for leadership in reforming the condition of avarice and corruption that exists within and about our state’s court system. We need you to insure that the First Department is led by a Presiding Judge who is committed to equal justice over all ethics issues.

We continue to be confident that future generations will echo our gratitude of your restoration of our faith in our government and in our system of law.

Very truly yours.

Franklin N. Brady

Integrity in the Courts &
ExposeCorruptCourts.blogspot.com

corruptcourts@gmail.com
347-632-9775 tel

Mayor Considers Martial Law Over Police Corruption; Courts?

Schenectady mayor considers options, martial law over police woes
Capital News 9 by Steve Ference - March 19, 2009

SCHENECTADY, N.Y. -- Schenectady Police Chief Mark Chaires said, "This is unprecedented - all these officers getting in trouble at the same time for all these different reasons. Five Schenectady police officers recently accused of everything from driving drunk to beating up a man are leading city officials to look at taking drastic action to fix a department tainted by the few who may have acted illegally, like Darren Lawrence and Michael Brown who are accused of driving while intoxicated. Chief Chaires said, "Those two officers, we're definitely going to seek termination, and we're not ruling it out with any of the officers who are out there. Police Chief Mark Chaires told us you basically have to fire yourself - essentially a million dollar fine in lost benefits over a lifetime. Still, Schenectady Mayor Brian Stratton said, "We believe there are five officers now who could face possible termination." But it's not just the threat of termination. Mayor Stratton told us he's looking at all options, including disbanding the police department - basically starting over. "It's something we're certainly looking into. I think the public has had it up to here," said the mayor. Currently, officials are reviewing the legal options and planning to present a full report in early April - options like a consolidated county-wide police force or bringing in the State Police.

The mayor said there is another option - and that would be declaring martial law. The governor would have to declare it and then the National Guard would come in. The mayor said it's more for a transition to a new police force if that were to happen. He said, "It may be that as a stopgap measure, that you would need military forces - State Police, National Guard." Mayor Stratton said the temporary measure would last until the new police force took over. Schenectady's Corporation Counsel John Van Norden said, "If you abolish the police department you still have a need - not an obligation - but a need to police the community. You would need something in transition. Declaring martial law would be one way to bridge the gap." "It's a contrived scenario," said the mayor. "But it's not beyond the realm of possibilities if you go that particular route." Chief Chaires said, "When I think of martial law, I think of rioting. I think of Watts riots and things like that. I haven't seen anything that rises to that level. I was a little surprised to hear that." But whether the National Guard needs to be called in or not, we'll take a more-in-depth look on Thursday at the county-wide and State Police options, as officials try to deal with an unprecedented situation in unprecedented ways.

Governor Must Ask Presiding Judge Candidates About Corruption

The Governor must ask the candidates for the Presiding Justice of the First Department opening about the systemic corruption in and about the Manhattan Ethics Committee (the "DDC") and, importantly the statewide corruption within the Commission on Judicial Conduct...More on this later today..... 

Four Judges Line Up Top Post Interviews
The New York Law Journal by Joel Stashenko - March 23, 2009

ALBANY, N.Y. - Governor David A. Paterson has scheduled interviews for today with his top four candidates for the vacant presiding judgeship of the Appellate Division, First Department, sources familiar with the selection process said.  All four are members of the Manhattan-based First Department: Justices Rolando T. Acosta, Luis A. Gonzalez and Angela M. Mazzarelli, and Acting Presiding Justice Peter Tom.

The interviews were scheduled to take place in Albany. One source said the sessions could stretch past today depending on last-minute changes in the schedule of Mr. Paterson, who is attempting to negotiate a new state budget with legislative leaders by April 1 for the 2009-10 fiscal year.  The governor is not expected to interview any other candidates to fill the opening he created when he selected former Presiding Justice Jonathan Lippman as chief judge to succeed the retired Judith S. Kaye (NYLJ, Jan. 14). While Mr. Paterson said he was deeply impressed by Justice Lippman's credentials, the governor also complained about the nomination process that forced him to choose from a list of candidates from the Commission on Judicial Nomination that included seven men, six of them white (NYLJ, Dec. 4, 2008). Mr. Paterson said the list did not reflect the racial or gender diversity of the state.


Still in the Running


Rolando T. Acosta, 53

A former Legal Aid Society attorney, Justice Acosta was elected to Manhattan Supreme Court in 2002 and was among the first two selections of then-Governor Eliot Spitzer to the Appellate Division in 2007. He is a Columbia Law graduate.

Luis A. Gonzalez, 63

Elected to the Bronx Supreme Court in 1992, he was administrative judge in the 12th Judicial District from 1999 to 2002. He was appointed to the Appellate Division in 2002 by Governor George E. Pataki. Justice Gonzalez is a Columbia Law graduate.

Peter Tom, 62

The current acting presiding justice was elected to Manhattan Supreme Court in 1990. Justice Tom became the first - and is still the only - Asian-American on the Appellate Division with his appointment in 1994 by Governor Mario M. Cuomo. Justice Tom is a Brooklyn Law School graduate who once won a New York City Golden Gloves boxing championship.

Angela M. Mazzarelli, 62

A Columbia Law School graduate and former Bronx Legal Services attorney, she was elected to Manhattan Supreme Court in 1992 after four years as an acting Supreme Court justice. Justice Mazzarelli was appointed to the Appellate Division in 1994 by Mr. Cuomo. Of the four candidates for the First Department position, Justice Tom is Asian-American, Justice Mazzarelli is a white woman and Justices Gonzalez and Acosta are Hispanic.  No Asian-American or Hispanic has been a permanent presiding Appellate Division justice, although Carmen Beauchamp Ciparick, a Hispanic, is senior associate judge on the Court of Appeals. Three women have served as a presiding justice, including A. Gail Prudenti, the current presiding justice in the Second Department.

Since becoming governor last year, Mr. Paterson, who is black, has shown an inclination to promote minority judges or women to the Appellate Division. Of his eight appointments, two have been black men, two black women, three white women and one white man. It was not known how many of the presiding justice candidates were declared "highly qualified" by the First Department Judicial Screening Committee. Mr. Paterson can choose only among candidates found to be "highly qualified" by the committee. Sources have told the New York Law Journal that at least three other sitting First Department judges applied for the presiding judgeship. In addition to the four Mr. Paterson will interview, Justices Richard T. Andrias, David B. Saxe and Dianne T. Renwick also applied (NYLJ, March 11). Gubernatorial appointments to the Appellate Division do not require confirmation by the state Senate. Joel.Stashenko@incisivemedia.com

Journal News Editorial: More Light on "Sunshine"

More light on 'sunshine'

EDITORIAL by The Journal News - March 22, 2009

Everyone, it seems, wants to let the sunshine in, when it works for them - "sunshine'' being the term used for government transparency and access to information. Last week in Albany, for example, Senate Minority Leader Dean Skelos, top Republican from Long Island, complained loudly that ruling Democrats were excluding the GOP from deliberations over a new state spending plan for the fiscal year starting April 1. "It's tragic that all the advances we made to open up the budget process are being completely ignored,'' he said, "and that the governor is turning back the clock to the days of three men in a room that came to symbolize the dysfunction of state government," Jay Gallagher of our Albany bureau reported. It's worth noting, of course, that Skelos, who was the Senate majority leader last fall, before the Democrats won the majority in his house, was himself once one of the three men in the room after his predecessor, former state Sen. Joseph Bruno, stepped down. Bruno was one of those "three men'' for a long, long time.

"New bills related to broadening (the Freedom of Information Law) and open meetings are disingenuous when we see that a $122 billion budget is being discussed completely behind closed doors - with the public shut out," Skelos said pointedly - at a Senate panel hearing on ways to open up government operations and records to the public. The hearing, along with many other events and campaigns in New York, Washington and elsewhere, marked "Sunshine Week,'' a commemoration initiated by publishers and newspapers that has emphasized the public's right to know about its government and its workings. Open government is essential if democracy is to thrive. In New York, progress has been slow but steady, thanks to several lawmakers who champion government transparency, and the New York State Committee on Open Government, headed by Robert Freeman, its indefatigable executive director. The committee fights to preserve and expand freedom of information, open government and personal privacy rights.

State, federal efforts

Skelos is right, of course. He and fellow lawmakers in both parties should remember that as a host of proposed bills regarding open government meetings and freedom of information make their way through the Senate and Assembly.

According to the New York Newspaper Publishers Association, for example, the Senate "plans to study the feasibility, cost and benefit of requiring state and local governments to proactively disclose records of public significance on their Websites.'' Other bills under consideration, including some with companion bills already in the Assembly:

- Expanding the definition of a "public body'' for the purpose of open-meetings law compliance;

- Requiring government bodies to post meeting notices on their Web sites and permit audio-visual coverage of open meetings;

- Giving judges expanded penalties to impose for willful violations of the open-meetings law;

- Requiring certain records discussed at open meetings to be made available to the public prior to such meetings; and

- Permitting agencies to waive reproduction fees for FOIL requests.

Several are sponsored by members of the Lower Hudson Valley delegation, and they are to be applauded. Now the bills must be reconciled and passed by both houses, then sent to Gov. David Paterson for his review. Advocates will be sure to recommend which deserve his signature. State lawmakers and the governor should take a hint on the desire for transparency not just from the public but also from the Obama administration. Federal agencies were advised Thursday to release their records and information to the public unless foreseeable harm would result. Attorney General Eric Holder issued new guidelines that fleshed out President Barack Obama's Jan. 21 order to reveal more government records to the public under the federal Freedom of Information Act whenever another law doesn't prohibit release, The Associated Press reported. The new standard replaced a more restrictive policy imposed by the Bush administration, under which the Justice Department defended any sound legal argument for withholding records. "We are making a critical change that will restore the public's ability to access information in a timely manner," Holder said in a written statement. Obama had given Holder until mid-May to issue these guidelines, but the attorney general acted much more quickly, making sure they came out during Sunshine Week. Good effort, and good timing, indeed.

Additional Facts - On the Web

- Sunshine Week, led by the American Society of Newspaper Editors, is a national initiative about the importance of open government and freedom of information. Participants include print, broadcast and online news media, civic groups, libraries, nonprofits, schools and others interested in the public's right to know: www.sunshineweek.org

- New York State Committee on Open Government: www.dos.state.ny.us/coog/coogwww.html

True Oversight Returning to NY, via Inspector General Joseph Fisch

NY Lawyer Fired Over Personal Use of Office Credit Card, Computer
The New York Law Journal by Joel Stashenko - March 20, 2009

The counsel at the state Division of Human Rights has been fired after an Inspector General's probe of his use of a state credit card for personal expenses and doing private legal work on his work computer. Inspector General Joseph Fisch said Thomas Shanahan ran up $530 in improper charges on his credit card, including charges from Manhattan restaurants. Mr. Fisch said Mr. Shanahan had been counseled in May 2008 over making improper charges. The inspector General said Mr. Shanahan also had sought, and been denied, permission to do outside legal work from his state office. Mr. Shanahan, 41, who lives in Manhattan, made $144,070 a year as deputy commissioner and counsel.

Fox News: Aging Judges Still on Bench

Aging Judges Still on the Bench

Fox News, Washington, D.C. by Tisha Thomspon - March 19, 2009

WASHINGTON, D.C. - When you think about powerful people, who comes to mind? Congress? Obama? How about Federal judges? Retired pilot Joe Norman didn’t know much about Federal judges until he became entangled in a lawsuit. The judge, William Hoeveler, has presided over high-profile cases like the Elian Gonzalez trial. But Norman has filed court documents claiming the judge made mistakes in his case and blames Hoeveler’s age. The judge had a well-publicized stroke during the Gonzalez case and is 86 years old. “Whether we like it or not,” Norman says, “people decline with age and I think Hoeveler should have to retire. The United States Constitution says Federal judges “shall hold their offices during good behavior” and never have to retire. But, when the founding fathers wrote the Constitution, Supreme Court justices rarely lived past their fifties, according to a recent Northwestern University study. That’s not the case today. When Fox 5 added up the ages of today’s Federal judges, we found more than 1/3 are 70 or older. That’s the same age at which most states force their judges to retire, including Maryland and Virginia.

"You want people who have physical and mental acumen," says Sheila Sachs. She chairs the committee that nominates Maryland’s judges. Sachs says mandatory retirement also encourages diversity. "You're not going to have an opportunity to get greater diversity on the bench unless you have more senior people move out and younger people come in." Our investigation found Federal courts are dominated by white men, with minorities making up 15% of the bench. “There's plenty of examples of judges serving in their seventies and eighties and they are doing a great job," says Russell Wheeler of the Brookings Institution. Wheeler says judges need to have life tenure so they can make the tough decisions without fear of retribution or being yanked off the bench. Wheeler says, "if you were to say to all Federal judges, 'at age 70 the President has the right to remove you from office,' that's a host of trouble."

Wheeler says Congress created something called “Senior Status,” which allows judges to keep their salary as they get old while hearing fewer cases if they want. But some Senior Status judges, like U.S. District Court Judge Wesley E. Brown in Wichita, KS, continue to hear a full case load even though he’s almost 102 years old. Brown did a rare interview with KAKE-TV just before his 100th birthday. In that interview, he said, "I really don't want to be known as a judge at 99. I want to be known as a judge who does his job and does the best that he's able under the circumstances of his life." The Federal government says Senior Status judges hear nearly one out of every five cases. Some say Judge Brown is an example of why age shouldn’t matter. 88 year-old Supreme Court Justice John Paul Stevens is another.

Duke University Professor Paul Carrington says, "Justice Stevens is a very fine justice who is still doing a great job, but if the price of that is having everybody hang around for 30 years, there's not enough rotation in the institution and it is ossifying." Carrington is 77 years old himself and says Supreme Court justices in particular tend to hang on to their jobs too long. He says, it’s “too much fun, too much power. And they're not going to quit just because they're 75 and a little dotty. That's not a good enough reason." Chief Justice William Rehnquist spent 33 years on the Supreme Court. After he died in 2005, the FBI released his file, which showed Rehnquist had been addicted to painkillers for at least a decade. The file quotes a doctor who says Rehnquist had “bizarre ideas and outrageous thoughts” and believed there was “a CIA plot against him.” The only way to remove a Federal judge is impeachment. But Fox 5 found only 11 have ever been forced out of office. Just one for “mental instability” – in 1804.

Carrington and 33 other legal experts are now proposing major reforms. That might require changing the Constitution, or at least an act of Congress. But even Carrington thinks that is unlikely. “There is the reality that justices and judges have a lot of friends in high places and they like things the way they are, so who wants to take them on?" All of the Federal judges Fox 5 contacted for this story, including Judge Hoeveler, declined to comment. Joe Norman did file a complaint against Hoeveler but suspects it won’t go very far. “We’ve got a major problem and nobody but nobody wants to open Pandora’s box,” he says. “And I contend the state of the Federal judiciary is America’s Pandora’s box.”

CLICK HERE TO SEE THE VIDEO "AGING JUSTICE"

Federal Judges Meet in Secret, As Usual

Federal Judges' Confab Revises Ethics Rules, Asks for More Judges
The New York Law Journal by Tony Mauro - March 19, 2009

WASHINGTON, D.C. - The Judicial Conference on Tuesday adopted revisions to the federal judiciary's code of conduct aimed at broadening and clarifying how judges should handle conflicts of interest and the "appearance of impropriety." The conference also agreed to ask Congress to create 63 new judgeships - 12 appeals court judges and 51 at the district court level. The number of appellate judges has remained at 179 since 1990, while case filings have increased by 42 percent. District judgeships have increased 4 percent, to 674 from 645, but filings have risen by 34 percent. As usual, the conference, which is the policy-making body for the federal judiciary, met behind closed doors at the U.S. Supreme Court, with Chief Justice John Roberts Jr. presiding. The revised ethics code, which takes effect July 1, defines for the first time the term "appearance of impropriety," which judges are commanded to avoid as much as actual impropriety. The definition: "An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge's honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired."

The conference decided to "clean things up" in the wording of the code, and to provide judges with clearer guidance, said Anthony Scirica, chief judge of the U.S. Court of Appeals for the Third Circuit and chair of the conference's executive committee. Judge Scirica briefed reporters afterward, stating that the new code also makes it clearer that the code covers "not just professional but personal conduct." He said the revisions also specify that judges may not tell court personnel to do something that would violate the code if judges did it themselves. The new code retains provisions for the disqualification but adds new language imposing an obligation on judges who learn of a possible code violation to take "appropriate action".  Another change: Judges are now specifically permitted to encourage lawyers to do pro bono work.

Judge Scirica said the changes Tuesday represent the conference's final action to implement the recommendations of the so-called Breyer Committee, chaired by Justice Stephen Breyer, which issued a report in 2006 on the judiciary's policies and procedures for handling misconduct complaints against judges (NYLJ, Sept. 20, 2006). Congress at the time was pressuring the judiciary to improve its ethics procedures. The revisions also reflect recent case law as well as changes made by the American Bar Association to its judicial code of ethics. The Judicial Conference does not set rules for the U.S. Supreme Court, but by tradition, the Court adheres to the Code of Conduct as a matter of policy. On the issue of creating judgeships, Judge Scirica said the conference "hopes the administration and Congress will move ahead on this." Senators Patrick Leahy, D-Vt., and Arlen Specter, R-Pa., both addressed the conference and indicated their support for more judgeships, Judge Scirica said.  The recommendations made by the conference would add five judges to the Ninth Circuit, two each to the Second and Third, and one each to the First, Sixth and Eighth.  Read the recommendation on additional judgeships. Two judges would be added in each of the Southern and Eastern Districts of New York and one in the Western District. No additions were recommended for the Northern District.  Some of the new positions would be permanent seats and some would be temporary - meaning that when the judge appointed retires or dies, it would not be refilled.

In a separate action, the conference also voted to make the existence of sealed cases more apparent in online dockets. Press and citizen groups have complained that some sealed cases simply vanish from the docket in many district courts, making it impossible to learn about them or challenge the sealing. The conference said even sealed cases should be listed with a docket number and a name, such as Sealed v. Sealed. Judge Scirica also was asked about the law passed by Congress last year barring judges from accepting honorary or free memberships valued at more than $50 to private clubs. The ABA Journal recently reported that the University Club in Washington, D.C., had devised a deeply discounted membership fee for judges that the club believed complies with the law, but ethics experts questioned it.  Judge Scirica said the issue was not discussed, but said the conference "has become aware" of efforts by clubs to find ways for judges to become members in spite of the law.  Several judges have asked the code of conduct committee for advice, Judge Scirica said.  "We're looking into it more systematically," he said.

Tony Mauro covers the U.S. Supreme Court for Incisive Media, the Law Journal's parent. He can be reached at Tony.Mauro@incisivemedia.com

Kickbacks. Pay-to-Play. In New York ?!?!

Aides to Hevesi Indicted in Kickback Scheme
The New York Times by DANNY HAKIM - March 19, 2009

ALBANY, NEW YORK — Two top advisers to Alan G. Hevesi, the former state comptroller, were charged on Thursday in a 123-count indictment that said they had turned New York’s $120 billion pension fund into a criminal enterprise that netted them and other Hevesi associates tens of millions of dollars in kickbacks from firms investing the fund’s money. Hank Morris, who was once Mr. Hevesi’s chief political adviser and a nationally known Democratic consultant, was charged with myriad counts — including falsifying records, bribery, money laundering, grand larceny and fraud — in an indictment brought by the state attorney general, Andrew M. Cuomo. Mr. Morris collected more than $15 million in fees from investment companies during Mr. Hevesi’s tenure as comptroller, from 2003 to 2006, according to court papers.

David Loglisci, who was the top investment officer of the pension fund, was charged with multiple counts related to official misconduct, falsifying records and fraud. The two men, arraigned in State Supreme Court in Manhattan, pleaded not guilty and were released pending the posting of bail, which was set at $1 million for Mr. Morris and $350,000 for Mr. Loglisci. The indictment said that at least two other people participated in the criminal conspiracy, but it did not name them. While Mr. Hevesi was not charged, the investigation is continuing and Mr. Cuomo did not rule out future actions against him. Mr. Cuomo said that Mr. Hevesi had benefited from the scheme because Mr. Morris encouraged investment firms to pour millions of dollars in contributions into Mr. Hevesi’s campaign fund. “This is the first of several cases and developments that will be announced on this matter,” said Mr. Cuomo, adding in a statement that “mixing politics, self-dealing, kickbacks and billions in taxpayer funds is nothing short of the perfect public-integrity storm.”

The Securities and Exchange Commission, which conducted a parallel investigation, also charged the men with violating several federal securities laws and is seeking to recoup the proceeds from their scheme. P. David Soares, the Albany County district attorney, also took part in the investigation, which started in his office. Mary L. Schapiro, the chairwoman of the S.E.C., said, “These two men used their influential positions to extract kickbacks from investment firms that wanted to do business with New York’s common retirement funds.” The two men are accused of directing half of the $10 billion that the pension fund invested in so-called alternative investments, like hedge funds and private equity firms, to those that used Mr. Morris or his associates as paid intermediaries. Firms that were not willing to pay were often turned down, according to the indictment. To conceal his conduct, the indictment said, Mr. Morris laundered payments through a half-dozen limited liability companies he had created, and through Searle & Co., a Connecticut investment firm that he worked for while he was advising the comptroller.

The firms that paid fees to Mr. Morris or firms with which he was affiliated included some of Wall Street’s best known: the Carlyle Group, Pequot Capital and HM Capital, formerly known as Hicks, Muse, Tate & Furst, the indictment said. None of the investment firms or their employees were charged, though the S.E.C. filed civil charges against three companies Mr. Morris created. Mr. Morris, 55, is also accused of rewarding Mr. Loglisci, 38, and another unnamed top official in the comptroller’s office for their help. Mr. Morris invested $100,000 in an independent film, “Chooch,” produced by Mr. Loglisci’s brother, investment firms doing business with the fund also invested in the movie, according to the indictment. “You couldn’t make this up,” Mr. Cuomo said.

William J. Schwartz, a lawyer for Mr. Morris, said, “The New York State pension fund made hundreds of millions, if not billions, of dollars on investments Hank Morris lawfully introduced to it, and the fund did not pay him one penny.” “There was no fraud and no corruption,” he added. “Hank Morris is innocent and we will defeat these charges at trial.” Mr. Cuomo’s office said it had frozen $11 million worth of Mr. Morris’s assets. Irving P. Seidman, a lawyer for Mr. Loglisci, said the indictment was “based on false and misleading evidence.” “The statements contained in the legal documents filed in this matter are manipulative, fictional writings by an investigation that had all sorts of political conflicts of interest,” he added, without elaborating. A lawyer for Mr. Hevesi did not have immediate comment.

Jack Chartier, Mr. Hevesi’s former chief of staff, was not charged. He has been a subject of the investigation, with scrutiny focusing on gifts that investment firms made on his behalf to the actress Peggy Lipton, a close friend, as well as a large loan and rental payments. Scott Fein, a lawyer for Ms. Lipton, said that “she cooperated fully in the investigation and I believe all would agree she was blameless.” Mr. Cuomo would not say whether some of the unnamed people participating in the criminal conspiracy faced charges in the future or had already cut deals with his office in exchange for cooperation. He said, “An unnamed high-ranking official in the comptroller’s office secured from Morris and others doing business with the office gifts and bribes, including cash, rent payments for his female companion’s luxury Manhattan apartment, a sham $100,000 loan for the girlfriend and a job and other benefits for her daughter.” A lawyer for Mr. Chartier did not return calls for comment immediately after the indictment was released.

Mr. Hevesi resigned as comptroller in late 2006 after he pleaded guilty to a felony related to his use of state workers to drive his ailing wife. After his departure, local, state and eventually federal investigators expanded that investigation to encompass broader practices in his office. The state comptroller has unusual sway over the pension fund, since he serves as its sole trustee; many other states have opted to have their funds overseen by boards. The current comptroller, Thomas P. DiNapoli, has defended the sole trusteeship, while Mr. Cuomo continued to express concerns about it on Thursday. Mr. Morris, a native of Long Island, is a political operative known for his intense and aggressive style. He directed Charles E. Schumer’s successful 1998 campaign to unseat Senator Alfonse M. D’Amato — he made sure everyone knew that Mr. D’Amato had used an expletive to refer to Mr. Schumer — and even pushed his own mother, Rita, a retired professor, to run for Congress in 1992. She lost. He also advised Senator Dianne Feinstein’s failed 1990 campaign for California governor.

But he was closest to Mr. Hevesi. The two men met in the 1970s, when Mr. Hevesi was a fledgling assemblyman from Queens and Mr. Morris was on the staff of the Assembly speaker, Stanley Steingut. Mr. Morris helped shape Mr. Hevesi’s rise to become comptroller of New York City and then state comptroller, and managed his unsuccessful run for mayor in 2001. According to the indictment, after Mr. Hevesi was elected comptroller in 2002, Mr. Morris ousted the chief investment officer of the pension fund and installed Mr. Loglisci in the job. He then held wide sway over investment decisions made by the pension fund. He even held meetings with Mr. Loglisci and other officials from the comptroller’s office at the offices of his political consulting firm, Morris & Carrick. The indictment calls him “a de facto gatekeeper for alternative investment transactions” made by the pension fund. “When you follow the money in New York, the biggest pool of money is the New York State pension fund,” Mr. Cuomo said. “Morris used the fund as his own piggy bank.”