Richard Lee Abrams: A Corrupt Judiciary Dooms a Republic

Lack of Judicial Accountability Has Turned America into a Predatory Nation

RICHARD LEE ABRAMS, CityWatch,

1 MAY 2020

ONE MAN’S OPINION-It took a long time for our country to devolve to such a low level that we have become one of the world’s most corrupt and poorly run nations.

When I was young, angry people might shake their fists, shouting, “I’ll sue you.” But they had no intention of going to court because a neighbor refused to give back their son’s softball which had gone into their yard. The invective “I’ll sue” had cultural significance. We believed that in America fairness reigned and injustice, no matter how small, would be rectified. Today, most people know that the powerful have made the courts into their stomping grounds where the little guys get trampled.

 

It is not only minorities who are railroaded off to prison or old people who have their property stolen by judges and conservators. Because judges have no accountability, they can do whatever they please. Judges are the only public officials with no accountability, and they want to keep it that way. The fact that we allow judges to indulge their whims is our collective shame. 

The Rule of Law vs Whim of Crooks 

The rule of law requires intelligent fair-minded judges who set aside their personal biases and make certain that the facts of a situation are correctly applied to the legal principles. It’s not an easy job.  Legal thinking requires a high IQ, which many judges lack, and it requires extensive education. One cannot determine whether “a fact is being introduced for the truth of the matter stated” without both a formal legal education and considerable experience making the right call in a couple seconds. 

A Decent Society Requires the Rule of Law 

“The rule of law signifies the constraint of arbitrariness in the exercise of [judicial] power. . .It means that the agencies of official coercion should, to the extent feasible, be guided by rules -- that is, by openly acknowledged, relatively stable, and generally applicable statements. . .The evils to be retarded are caprice and whim, the misuse of government power for private ends, and the unacknowledged reliance on illegitimate criteria of selection. The goals to be advanced are regularity and evenhandedness in the administration of justice and accountability in the use of government." -- John Calvin Jeffries, Jr., Legality, Vaugueness and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 212 (1985). 

With a judge’s control over a courtroom comes great power and dishonest judges have perverted the system to their own personal benefit. The last thing a judge wants is any accountability. We can assess the depravity of our current legal system by its lack of judicial accountability. No honest judicial system would allow its judges to viciously abuse the populace. 

The Appeal Process Has Become Worthless 

When the judicial system itself has become a corrupt institution, the appeal process is worthless. The purpose of the judicial system has become the care and feeding of judges. If the facts are against what the judge wants, he simply alters the facts. If the facts and law are not to the judge’s liking, he’ll go find his own lawyer and impose him on the plaintiff as Justice Scalia did in Great West v Knudson, 534 U.S. 204 (2002). If the judge dislikes the fact that the Widow M is not insolvent so as to justify the court’s theft of her property, Judge Lippitt simply denies that the widow’s attorney is her attorney. There is no fact so significant and no law so relevant that judges will not ignore them to do whatever it is that the judges desire. The only constraint of judicial abuse is a more powerful judge who can benefit from a different outcome. 

The Commission on Judicial Performance’s Role Is to Prevent Judicial Accountability 

Due to the doctrine of judicial immunity, a person who has had his/her life destroyed by a judge’s criminal conduct will find that a complaint to the CJP is a fool’s choice. Its function is to protect the judges -- not to safeguard the system from corruption. All a judge has to do in order to cloak herself with judicial immunity is write her crime into a court order. Simply put, the role of the CJP is to protect corrupt judges. 

A Corrupt Judiciary Dooms a Republic 

The purpose of a Republic is to secure the individual inalienable rights including Life, Liberty, and the Pursuit of Happiness. But a judiciary in which the whim and passions of judges are controlling has no respect for inalienable rights. Visit Los Angeles court rooms and peak behind the curtains. You’ll find no kindly Wizard of Oz. Rather, you’ll find avaricious predators stuffing their pockets full of gelt and letting the rich and power run rough shod over everyone else. Those who are not active thieves stand silently by. Those who are not criminals are too cowardly to stop the criminals. 

How Long Can a Society Exist Without Judicial Accountability? 

The Third Reich lasted twelve years and four months. The Soviet Union lasted 69 years from 1922 to 1991, The Confederacy lasted four years, while North Korea has lasted since 1948. How long do we have?  

A Corrupt Judicial System Reflects the General Society 

The most effective restraint on an institution is public sentiment. Americans revere and bow low before predators. As Matt Damon said about Harvey Weinstein, “within five minutes you knew he was a asshole.” Donald Trump is admired by millions because he brags about grabbing women by the pussy and he calls cheaters “smart businessmen.” Judge Judy is a vicious predator who shows no more respect for her victims than Weinstein did for ingenues. The Soviet Union crumbled when Boris Yeltsin stood on the tank and the military did not shoot him on the spot. The Russian people had had enough of predatory thieves. Donald Trump, on the other hand, could stand on top of a tank and declare his Thousand Year Reich and he would receive cheers. In the final analysis, a society gets the corruption and oppression it wants. We have no judicial accountability because Americans want no limits to be placed on predators. And Americans no longer recognize the name of Martin Niemöller.

(Richard Lee Abrams is a Los Angeles attorney and a CityWatch contributor. He can be reached at: Rickleeabrams@Gmail.com. Abrams’ views are his own and do not necessarily reflect the views of CityWatch.) Image: ProPublica   Edited for CityWatch by Linda Abrams.

Federal Appeals Court Orders Judge Sullivan To Explain Why He Is Hesitating To Dismiss The Michael Flynn Case

Michael T. Flynn, President Trump’s former national security adviser, twice pleaded guilty to lying to F.B.I. agents about his conversations with the Russian ambassador during the presidential transition.Credit...Sam Hodgson for The New York Times

Judge Is Ordered to Explain Handling of Flynn Case as F.B.I. Announces Review

In the latest twists in a highly politicized case, Michael Flynn’s lawyers are trying to force a judge to end the case immediately, and the F.B.I. will weigh whether it committed misconduct.

By Charlie Savage, NY TIMES, May 22, 2020

WASHINGTON — A federal appeals court panel has ordered a trial judge to explain why he is hesitating to grant the Justice Department’s request that he dismiss the criminal case against President Trump’s former national security adviser Michael T. Flynn.

Christopher A. Wray

The order came as the F.B.I. director, Christopher A. Wray, announced on Friday that the bureau would conduct an internal review of the investigation into Mr. Flynn, including to “determine whether any current employees engaged in misconduct” and evaluate whether the bureau should change any procedures.

The moves were the latest twists in a bizarre legal and political drama that has enveloped the prosecution of Mr. Flynn, who twice pleaded guilty to lying to F.B.I. agents in the Russia investigation about his conversations in December 2016 with the Russian ambassador to the United States.

“Everything about this case is unusual,” said David A. Sklansky, a Stanford professor of criminal law. “It’s unusual to ask a higher court to direct a lower court to do something before the lower court has had a chance to make up its own mind in the first instance — and that includes whether to dismiss a case.”

Mr. Flynn’s case has become a political cause for Mr. Trump and his supporters. This month, at Attorney General William P. Barr’s direction, the Justice Department asked the federal judge overseeing the case, Emmet G. Sullivan, to drop the matter, using as justification a disputed legal theory that Mr. Flynn’s false statements were immaterial to any legitimate investigation.

Mr. Barr had earlier intervened to seek a more lenient sentence for another Trump associate prosecuted in connection with the Russia investigation, Roger J. Stone Jr., than prosecutors had sought. In both cases, Mr. Barr’s moves prompted accusations that he was politicizing the department by showing special favor to presidential favorites.

Judge Sullivan responded to the abrupt reversal in the Flynn case by appointing a former mafia prosecutor and retired federal judge in Brooklyn, John Gleeson, to argue against the Justice Department’s new position. He also asked Mr. Gleeson to evaluate whether Mr. Flynn committed criminal contempt of court in the form of perjury, apparently because Mr. Flynn has made contradictory factual statements under oath in court, by admitting he knowingly lied and then saying he did not lie.

On Tuesday, Mr. Flynn’s defense lawyer, Sidney Powell, filed a petition with the appeals court seeking an order that would short-circuit Judge Sullivan’s review. She argued that her client had been mistreated and that the judge was legally required to drop a case if that was what the Justice Department decided to do.

Mr. Barr has made clear that he considers to be illegitimate the government’s counterintelligence effort to understand the scope of Russian election interference in 2016 and any links to the Trump campaign. He has commissioned John H. Durham, the United States attorney in Connecticut, to re-examine that investigation, and in January, he assigned another prosecutor, Jeff Jensen, the U.S. attorney in St. Louis, to go over the Flynn case files.

After Mr. Jensen’s review, the department disclosed to Ms. Powell several documents she has used to portray her client as a victim. Many experts in criminal law have disputed the notion that he was treated differently in any legally meaningful sense than countless other people under investigation who lack presidential ties and receive no special lenity.

The disclosures included notes by a former senior F.B.I. official musing about whether the goal in questioning Mr. Flynn was to get him to tell the truth, or to get him to lie so he could be fired or prosecuted. It also disclosed materials showing that James B. Comey, then the F.B.I. director, violated bureaucratic etiquette by dispatching the agents to interview Mr. Flynn without going through the office of the White House counsel.

And the review also disclosed internal F.B.I. files showing that the bureau had been about to close an investigation into Mr. Flynn specifically, having not found evidence that he was a Russian asset, when the question arose about why Mr. Flynn was repeatedly lying to colleagues like Vice President Mike Pence about his conversations with the ambassador.

Because the Flynn investigation was still open as a bureaucratic matter, the F.B.I. agents used it as a basis to ask Mr. Flynn about his discussions with the ambassador. Before Mr. Barr’s intervention, the Justice Department had also portrayed the interview as separately justified by and material to its umbrella investigation into Russian election interference.

While Mr. Wray was not at the F.B.I. when agents interviewed Mr. Flynn, Mr. Trump has criticized him on and off since appointing him in 2017. Mr. Wray has been under renewed political pressure by Mr. Trump over the recent disclosures in the Flynn case, and the announcement that he has begun his own investigation, by itself, could function as a release valve.

The details of the inquiry, as described in an F.B.I. news release, appear to be limited and largely duplicative, however. The F.B.I.’s Inspection Division will conduct a review that will “complement” the review already underway by Mr. Jensen, largely using the same agents already assisting him, and his efforts will “take priority” if the two conflict.

The Inspection Division lacks the authority to impose disciplinary action against people no longer employed by the F.B.I., which covers most of the major players in the Flynn case. A few, however, including the case agent, William Barnett, and one of the agents who interviewed Mr. Flynn, Joe Pientka, are still at the bureau.

Ms. Powell’s petition to the appeals court, as has been her practice, was littered with hyperbolic language unusual for a legal document. The request for an immediate intervention initially appeared to be a long shot since Judge Sullivan has not declined to dismiss the case, but rather is conducting a review before making a decision. Mr. Barr had acknowledged in an interview with CBS News that dropping the case is not automatic and the judge “does have a say.”

But cases are randomly assigned to judges on the circuit, and Ms. Powell’s petition drew what may be an unusually favorable panel, the order on Thursday revealed.

Two of the three judges on it — Karen L. Henderson, an appointee of former President George Bush, and Neomi Rao, an appointee of Mr. Trump — have proved more willing than the majority of their colleagues to interpret the law in Mr. Trump’s favor in other politically charged cases, like disputes over congressional subpoenas for his financial records and whether Congress may see secret grand-jury evidence from the Russia investigation.

The third judge assigned to the Flynn panel, Judge Robert L. Wilkins, is an Obama appointee. He apparently voted to let stand a panel ruling against Mr. Trump in the case over a House subpoena for Mr. Trump’s financial records.

Should the panel issue an order to Judge Sullivan that he drop the Flynn charge without further consideration, it would not necessarily be the end of the matter, according to Mr. Sklansky and another criminal law professor, Samuel W. Buell of Duke University.

For one thing, they said, Judge Sullivan is likely to appoint a lawyer to represent him before the appellate panel, and that lawyer could ask the full appeals court or the Supreme Court to reverse any order shutting down his review.

Mr. Sklansky also said it would not necessarily take a decision by Judge Sullivan to push the matter further. He pointed to a rarely invoked rule that permits the full appeals court to order a rehearing on its own, without any petition, if the judges deem the matter to involve “a question of exceptional importance.”

On the other hand, if the three-judge panel decides against issuing an order to Judge Sullivan — or is overruled by the full court — Mr. Flynn’s legal team can appeal, too.

The immediate intervention the Flynn team is seeking — called a writ of mandamus — is disfavored and is supposed to be reserved for rare occasions “when a judge is off the reservation about the law,” Mr. Buell said. The general rule is that appeals courts are supposed to wait to intervene until a case has been decided and one side appeals.

“The idea of mandamusing a judge to tell him who he is or isn’t allowed to hear from when he’s deciding an issue is ridiculous,” Mr. Buell said. “But with what’s going on in the federal judiciary right now, I’ve given up predicting what ridiculous issues will and won’t be treated as nonridiculous.”

FBI Director Wray orders internal review of Flynn investigation

Domenick J. Demuro, Former Judge of Elections in Philadephia, PA., is Convicted of Election Fraud, Bribery

DOJ Charges Philadelphia Election Official with Stuffing Ballot Box

Official voted over and over while he thought the ‘coast was clear’

Press release:

Department of Justice

Office of Public Affairs
FOR IMMEDIATE RELEASE
Thursday, May 21, 2020
Former Philadelphia Judge of Elections Convicted of Conspiring to Violate Civil Rights and Bribery


A former Judge of Elections has been convicted for his role in accepting bribes to cast fraudulent ballots and certifying false voting results during the 2014, 2015, and 2016 primary elections in Philadelphia.

Domenick J. Demuro, 73, of Philadelphia, Pennsylvania, pleaded guilty during a sealed proceeding on March 16, 2020, before U.S. District Judge Paul S. Diamond to conspiring to deprive persons of civil rights, and using interstate facilities in aid of bribery. The court unsealed the matter today. Sentencing is scheduled for June 30, 2020.

During his guilty plea hearing, Demuro admitted that while serving as an elected municipal Judge of Elections, he accepted bribes in the form of money and other things of value in exchange for adding ballots to increase the vote totals for certain candidates on the voting machines in his jurisdiction and for certifying tallies of all the ballots, including the fraudulent ballots. Demuro further admitted that a local political consultant gave him directions and paid him money to add votes for candidates supported by the consultant, including candidates for judicial office whose campaigns actually hired the consultant, and other candidates for various federal, state and local elective offices preferred by that consultant for a variety of reasons. Demuro also admitted that the votes he added in exchange for payments by the political consultant increased the number of votes fraudulently recorded and tallied for the consultant’s clients and preferred candidates, thereby diluting the ballots cast by actual voters.

“This defendant abused his office by engaging in election fraud for profit,” said Assistant Attorney General Brian A. Benczkowski of the Justice Department’s Criminal Division. “Today’s conviction makes it clear that the Department of Justice will do all in its power to protect the integrity of elections and maintain public confidence in all levels of elected government.”

“Demuro fraudulently stuffed the ballot box by literally standing in a voting booth and voting over and over, as fast as he could, while he thought the coast was clear. This is utterly reprehensible conduct. The charges announced today do not erase what he did, but they do ensure that he is held to account for those actions,” said U.S. Attorney William M. McSwain of the Eastern District of Pennsylvania. “Voting is the cornerstone of our democracy. If even one vote is fraudulently rung up, the integrity of that election is compromised. I want the public to know that this investigation is active and ongoing, and my Office is taking every possible step that we can to ensure the integrity of the upcoming primary and general elections in the nine counties of the Eastern District of Pennsylvania.”

“Domenick Demuro put a thumb on the scale for certain candidates, in exchange for bribes,” said Special Agent in Charge Michael J. Driscoll of the FBI’s Philadelphia Division. “As public trust in the electoral process is vital, the FBI’s message today is clear: election interference of any kind, by hostile foreign actors or dishonest local officials, won’t be tolerated. This is an active, ongoing investigation and we're asking anyone with information on election fraud to contact the FBI.”

“The citizenry of the City of Philadelphia, as well as this Commonwealth and these United States, needs to be confident in the integrity of our elections,” said Captain Leo Hannon, Director of the Pennsylvania State Police, Special Investigations Division. “As this investigation clearly illustrates, the Pennsylvania State Police will relentlessly pursue any breach of the sacred trust bestowed upon our public officials. Our agency is proud to partner with the Federal Bureau of Investigation, the United States Attorney’s Office, and the United States Department of Justice as a whole to root out corruption at any level of our government. Matters of public corruption and public integrity have been, and shall remain, a top priority of the Pennsylvania State Police.”

The FBI and the Pennsylvania State Police investigated the matter. Richard C. Pilger, Director of the Election Crimes Branch in the Criminal Division’s Public Integrity Section, and Assistant U.S. Attorney Eric L. Gibson of the Eastern District of Pennsylvania are handling the prosecution.

The year 2020 marks the 150th anniversary of the Department of Justice. Learn more about the history of our agency at www.Justice.gov/Celebrating150Years.
Topic(s):
Civil Rights
Public Corruption
Component(s):
Criminal Division
Criminal - Public Integrity Section
USAO - Pennsylvania, Eastern
Press Release Number:
20-472

NY SUN Editorial: General Flynn Appeals for an End to a ‘Kafkaesque Nightmare’

General Michael Flynn

Editorial of The New York Sun | May 19, 2020

Congratulations are in order to General Michael Flynn and his attorney, Sidney Powell, for filing with the federal appeals court in Washington D.C. an emergency petition for a writ of mandamus. It’s an extraordinary writ — but one of the most venerable in American and Anglo-Saxon law. Their aim, sketched in crystalline prose, is to rescue the general from which the petition calls a “Kafkaesque nightmare.” We certainly wish them luck.

It’s not entirely clear to us — no offense to Ms. Powell — whether Franz Kafka could have come up with a plot as nefarious as the one by which the FBI brass and certain rogue elements within the Justice Department managed to entangle General Flynn. 

One of Kafka’s works Ms. Powell quotes in the petition, after all, is the dystopian novel “The Trial,” which even Kafka failed to finish. Ms. Powell may be made of sterner stuff.

What her petition seeks is an order from the United States Circuit Court of Appeals for the D.C. circuit ordering the district court to grant immediately the government’s motion to dismiss the case against General Flynn, undoing his guilty plea. The filing reprises the way the government entrapped the general and got him to plead guilty to a crime he didn’t commit. And, in fact, for deeds that in the circumstances weren’t a crime.

All that has by now been widely reported, particularly following the motion by the United States asking that the case be dismissed because of errors or malfeasance by America’s agents and prosecutors. The petition for the writ of mandamus also takes on the errors of the district judge, Emmet Sullivan, for issuing an order inviting amicus briefs and appointing a former judge to take on the case against the government.

In doing that, the general’s petition suggests, the judge has taken on the powers of the prosecutor, powers granted by the Constitution to the executive branch. That’s a violation of separated powers. The petition also addresses the district court’s breach of the cases and controversies clauses, via which the Constitution curbs the courts by granting them the power to decide only active cases and controversies.

That limitation on the power of the courts means that once the government moves to drop a case, no case or controversy remains. The courts have no further power to act.

Ms. Powell’s petition cites precedent of the District of Columbia Circuit itself and also of the Supreme Court. She cites a recent opinion by an alumna of the circuit now on the Supreme Court, Justice Ruth Bader Ginsburg. That underlines the fact that this is not a left-right issue.

Which brings us back to Kafka, the World War I-era writer from Prague who invented bizarre plots. General Flynn, Ms. Powell argues, “has been subjected to deception, abuse, penury, obloquy, and humiliation. Having risked his life in service to his country, he has found himself the target of a political vendetta designed to strip him of his honor and savings, and to deprive the President of his advice.”

The general, the petition argues, “has been dragged through the mud and forced, through coercion and the artful withholding of information crucial to his defense, to confess to a crime he did not commit — indeed, to a crime that could not exist.” Then, “having at last, through the relentless determination of his current counsel, brought the truth to light,” he learns that the judge has decided to, as one judge once put it, play prosecutor.

The petition references not only Kafka’s “The Trial,” which Orson Welles made into a movie starring Anthony Perkins. The petition also cites a short-story, “In the Penal Colony.” In it Kafka imagines a contraption for meting out justice that tortures the condemned by inscribing on his body the text of the statues he has broken. Not a bad metaphor for the attempt at destroying General Flynn’s reputation. It’s a case that demands to be ended by a writ of mandamus from the court above.

Republican attorneys general back Barr's bid to drop case against Flynn

Florida Attorney General to federal judge: Drop the Michael Flynn case: Ashley Moody is one of 15 state attorneys general to sign onto a supporting legal brief.

U.S. judge puts Justice Department’s move to drop charges against Michael Flynn on hold

Betsy Combier
Editor, ADVOCATZ.com
Editor, ADVOCATZ blog
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials

A Bill To Repeal Judiciary Law § 470 Introduced in New York State Assembly

NY Judiciary Law §470 has been introduced, which would repeal the law which states:

"Judiciary Law § 470 requires an attorney admitted to practice in New York who is not a New York resident to maintain an office in this state for the practice of law (see Kinder Morgan Energy Partners, LP v Ace Am. Ins. Co., 51 AD3d 580 [2008]; Lichtenstein v Emerson, 251 AD2d 64 [1998]). Failure of counsel to maintain a local office requires striking of a pleading served by such attorney, without prejudice (see Kinder Morgan, 51 AD3d at 580; Neal v Energy Transp. Group, 296 AD2d 339 [2002])."

In a world of internet access and pandemics, it makes sense to look at repealing this law, which may happen in the near future. A bill has been introduced in the State Assembly in May 2020 to do just that.

It's time.

Betsy Combier, 
betsy.combier@gmail.com
Editor, ADVOCATZ.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Legislation to Repeal Judiciary Law Section 470 Introduced in State Assembly

by Christian Nolan

A bill introduced this week in the state Assembly would repeal Judiciary Law Section 470, which requires lawyers admitted to practice in New York – but residing in other states – to maintain a physical law office in New York State.

Assemblyman David Weprin has sponsored the legislation that was introduced in the Assembly’s Judiciary Committee. A similar bill was introduced last year by State Senate Judiciary Committee Chair Brad Hoylman.

Nearly 25 percent of NYSBA members reside or practice outside the state of New York.

“In a digital era where attorneys across the street and around the world are just a click away on their computer or smart phone, an antiquated rule from over a century ago requiring a physical office in the state no longer serves any purpose,” said NYSBA President Hank Greenberg. “That is now more clear than ever with so many lawyers working remotely in the midst of the coronavirus pandemic.”

In January 2019, NYSBA’s House of Delegates approved a resolution calling for the outright repeal of the law and the report and recommendations of its Working Group on Judiciary Law §470, which was appointed in 2016 to address concerns from members.

The law was enacted in 1909 because the New York State Legislature believed at the time that a nonresident attorney without an office in New York would not be amenable to service of process.

In 2009, Ekaterina Schoenefeld, a New Jersey resident who was admitted to practice both in New York and New Jersey, challenged the constitutionality of the law in federal district court.

In Schoenefeld v. State of New York, the U.S. District Court of the Northern District of New York ruled in 2011 that Section 470 violates the Privileges and Immunities Clause of the U.S. Constitution. The state Attorney General appealed and during the appeal process in 2014, the U.S. Court of Appeals for the Second Circuit asked the state Court of Appeals to clarify the meaning of Section 470.

In a 2015 opinion written by then-Chief Judge Jonathan Lippman, the state Court of Appeals replied, “We hold that the statute requires nonresident attorneys to maintain a physical office in New York.”

By 2016, the Second Circuit upheld Section 470, holding that the statute did not violate the Privileges and Immunities Clause. Schoenefeld filed a petition for certiorari to the U.S. Supreme Court, which was denied in 2017.

A ruling in the NY Court of Appeals in February 2019 gave a new perspective:

No Office, No Problem: Court of Appeals Holds that Violation of Judiciary Law § 470’s “Physical Office” Requirement Does Not Render Action a Nullity, But Could Subject Attorney to Discipline

In a unanimous decision authored by Judge Michael Garcia, the Court of Appeals today resolved an important issue of first impression implicating multi-state practice in New York—“whether an action, such as filing a complaint, taken by a lawyer duly admitted to the bar of this State but without the required New York office is a nullity.”

In Arrowhead Capital Finance, Ltd. v Cheyne Specialty Finance Fund L.P., the Court held that the failure of a nonresident attorney to comply with the physical office requirement in Judiciary Law § 470 at the time an action is commenced does not render the action a nullity. The opinion resolved a split between the First Department, which has held that any action taken by a nonresident attorney who fails to maintain a physical office in New York as required under Judiciary Law § 470 is a nullity, and the Second and Third Departments, which have permitted nonresident attorneys to cure a Judiciary Law § 470 violation by obtaining an attorney with a New York office or by application for admission pro hac vice by appropriate counsel.

The Court noted that the rule adopted by the Second and Third Departments stems from its prior decision in Dunn v Eickhoff (35 NY2d 698, 699 [1974]) where it held that “[t]he disbarment of a lawyer creates no ‘nullities,’ the person involved simply loses all license to practice law.” The Court held that “given [its] holding in Dunn, it would be incongruous to conclude that, unlike the acts of a disbarred attorney, actions taken by an attorney admitted to the New York bar who has not satisfied Judiciary Law § 470’s office requirement are a nullity.” Thus, the Court adopted the Second and Third Department rule and concluded that “the party can cure the section 470 violation with the appearance of compliant counsel or an application for admission pro hac vice by appropriate counsel.”

The Court, however, clarified that a Judiciary Law § 470 violation is not without consequences. The attorney who violates section 470 by practicing in the State without a physical office could face discipline. The court held that “[w]here further relief is warranted, the trial court has discretion to consider any resulting prejudice and fashion an appropriate remedy and the individual attorney may face disciplinary action for failure to comply with the statute.” “This approach,” the court concluded, “ensures that violations are appropriately addressed without disproportionately punishing an unwitting client for an attorney’s failure to comply with section 470.”

Important Practice Tip

Beyond clarifying the effect of a nonresident attorney’s violation of the physical office requirement in Judiciary Law § 470, the Court’s decision in Arrowhead includes a notable practice point that should not be overlooked.

In its motion for leave to appeal, Arrowhead limited its appeal “to the extent that the Appellate Division failed to reverse and remand the Order and Judgment of Supreme Court dismissing [its] Complaint as a ‘nullity’” for the Judiciary Law § 470 violation. The Judiciary Law § 470 dismissal, however, only related to the breach of contract and fiduciary duty claims that survived Defendant’s first motion to dismiss. By limiting its appeal to the distinct Judiciary Law § 470 issue, and not appealing the dismissal of its other claims, Arrowhead precluded the Court from reviewing the propriety of Defendant’s first motion to dismiss (see Quain v Buzzetta Constr. Corp, 69 NY2d 376, 380 [1987]). Thus, the Court granted defendant’s motion to strike the portion of Arrowhead’s brief addressed to defendant’s first motion to dismiss.

It is unclear whether Arrowhead’s decision to limit the appeal was strategic. Certainly, crystalizing an issue of first impression doesn’t hurt a party’s chances of having its motion for leave to appeal granted. But, by limiting the appeal, you give up other issues that could have otherwise been raised. Attorneys should be wary of the Court’s rule in Quain and only limit their appeals if they are willing to relinquish their rights to challenge other issues in the case.

And one more thing. The Court would do well to explain the practical impacts of its decisions to the parties and the bar in general in as plain of terms as possible. Here, the Court’s decretal paragraph reads:



To aid the parties and trial court, adding a clarifying clause to the decretal saying expressly that only the claims dismissed for the Judiciary Law § 470 violation remain to be litigated on remand would go a long way. Although this may appear straightforward in this case, many times the Court’s decisions on jurisdiction and reviewability leave parties scratching their heads about what to do next to fix the issues. The Court should try to help address those issues in its decisions to the best it can.

The Court of Appeals’ opinion can be found here.

 Another Stern Reminder re: Judiciary Law § 470 is Alive and Well

By Farrell Fritz P.C. on March 1, 2018

Posted in Motions

Frequent readers of this blog may recall my post from the end of last year in which I highlighted a decision of the Appellate Division, First Department affirming a decision of New York County Commercial Division Justice Shirley Werner Kornreich, that examined the application of Judiciary Law § 470.  For those needing a refresher, Judiciary Law § 470 provides that an attorney residing in “an adjoining state” may practice New York – without moving for pro hac admission – only if  both (I) admitted in New York and, (ii) more crucially to the Arrowhead Capital decision, maintains a physical law office in New York. In Arrowhead Capital, the Appellate Division affirmed Justice Kornreich’s dismissal of the plaintiff’s complaint due entirely to its non-resident lawyer’s failure, in violation of Judiciary Law § 470, to maintain an office in New York. 

Proving that this is not nearly as esoteric an issue as you might think is Platinum Rapid Funding Group, Ltd. v H D W of Raliegh, Inc., a recent decision out of the Nassau County Supreme Court (Hon. Jerome C. Murphy). While not a Commercial Division decision, Platinum Rapid Funding is valuable to readers of this blog for its additional analysis of Judiciary Law § 470. Before the Court in Platinum Rapid Funding was the plaintiff’s motion brought pursuant to Judiciary Law § 470, seeking disqualification of defendants’ counsel (the firm of Higbee & Associates [“Higbee”] and lawyer Rayminh L. Ngo [“Ngo”]) for failing to maintain an office for the transaction of law in New York, and dismissing the defendants’ counterclaims and affirmative defenses on the same basis. The court’s holding that defendants’ counsel did not maintain a physical office in the State of New York at the time they appeared in the action, relied on the following evidentiary findings:

1. The defendants’ Verified Answer identified the principal office for Higbee as being in Santa Ana, California;
2. Ngo identified himself not as an associate or partner of Higbee, but as the principal of his own law practice based in Salt Lake City, Utah;
3. While Ngo asserted in opposition that he is duly admitted to practice in New York and was serving of counsel to Higbee, which he claimed was a “multijurisdictional law firm based in California” that purportedly leases office space on Wall Street and in Syracuse, neither Ngo nor Higbee asserted that there were attorneys or law firm staff in either location;
4. The lease agreements subsequently submitted by Ngo as proof of the two New York office locations failed to establish that they were maintained by Higbee at the time Ngo and Higbee appeared in the action; and
5. The court “[could not] overlook the fact that the defendants . . . failed to offer any competing evidence against the sworn affidavits of . . . process servers who attest[ed] that they physically went to [the Wall Street and Syracuse] addresses . . . and confirmed that neither Ngo nor Higbee had physical offices at th[ose] locations.”

The court further instructed that disqualification under these circumstances is not permissively left to the court’s discretion, but rather a finding that counsel’s violation of Judiciary Law § 470 mandates immediate disqualification from continued representation in the action.  Platinum Rapid Funding offers another stern reminder to non-resident lawyers attempting to practice in New York State courts: be sure to maintain a physical office in New York at the time you first appear in a given action or else be prepared to be disqualified.

Tags: Disqualification, in-state office, Judiciary Law § 470, out-of-state attorney