Rivera-Arvelo and The First Department-New York-
ABOUT THE ALLEGED NOT NOTIFICATION TO THE COMMITTEE OR TO THE SUPREME COURT-FIRST DEPARTMENT?
by Ralph Stevens:
The case:
He was admitted to practice law in New York pursuant to the reciprocity statutes and where the applicant didn't have to read, study or learn anything at all on this particular topic, except to have 5 years practicing law in the highest court of the State as required by the Third Department.
"Discretion of Appellate Division".
The Appellate Division may in its discretion impose as a condition for admission such other tests of character and fitness as it may deem proper."
The Supreme Court-Third Department could have requested, within its ample discretion, the imposition upon the applicant full knowledge over this matter. It should also apply with the Judiciary Law in reference to the admissionto the bar, under Section 520.10(d):" Section 520.10. Admission without examination (a)
General. In its discretion, the Appellate Division may admit to practice without examination an applicant who:
(1) has been admitted to practice in the highest law court in any other state or territory of the United States or in the District of Columbia; and is currently admitted to the bar in such other jurisdiction or jurisdictions, that at least one such jurisdiction in which the attorney is so admitted would similarly admit an attorney or counselor at law admitted to practice in New York State to its bar without examination; or has been admitted to practice as an attorney and counselor at law law or the equivalent in the highest court in another country whose jurisprudence is based upon the principles of the English Common Law; and
(2) (i) while admitted to practice as specified in paragraph (1) of this subdivision, has actually practiced therein, for at least five of the seven years immediately preceding the application:
(a) in its highest law court or highest court of original jurisdiction in the state or territory of the United States, in the District of Columbia or in the common law country where admitted; or
(b) . . . "Under the same dispositions about the admission of lawyers in New York Section 1022.34 requires that the Committee of Character and Fitness evaluate the applicant. However nothing is provided about warnings and other disciplines that should be taken into consideration, like in this case:
" Section 1022.34. Admission of attorneys
(a) Filing of application papers...
(b) Referral to committee on character and fitness. Every completed application shall be referred for investigation of the applicant's character and fitness to a committee on character and fitness designated by the Appellate Division of the department to which the applicant is eligible for certification by the State Board of Law Examiners after passing the bar examination, or to which the applicant is applying for admission without examination in accordance with the rules of the Court of Appeals for the admission of attorneys and counselors at law.
(c) . . . .
(d) Investigation and interview. The committee may itself conduct the required investigation, including an interview of the applicant, or it may authorize its chairman or acting chairman to designate one or more of its members to do so and to make a recommendation to the committee. The committee or the member or members thereof conducting the investigation may require the applicant to furnish such additional information or proofs of good character as the committee or such member or members may consider pertinent. The committee may commence the required investigation at any time after the applicant's completed application has been filed, except that the personal interview of an applicant for admission pursuant to subdivision 1(a) of section 90 of the Judiciary Law shall not be held until after the applicant has been notified by the State Board of Law Examiners that the applicant has passed the bar examination and has been certified to apply for admission.
(e) Procedure upon recommendation of approval. If the committee shall approve the application following its own investigation, or if it shall accept a recommendation of approval submitted by the member or members conducting an investigation pursuant to designation, the chairman or acting chairman shall certify to the Appellate Division on behalf of the committee that the applicant possesses the requisite of character and fitness.
f) . . . ."It is pertinent to say that even when we pay to the NYS Office of Court Administration the annual Biennial Registration that disposition of the law has never been included as part of their warnings .
HOW ABOUT NOW THE CLAIM OF A CLIENT FOR NOT RESIGNING HIS CASE ?
This client pressed charges before the First Departmental Disciplinary Committee and read the facts involved:
On January 1999 Reynolds filed a complaint, allegedly because the lawyer in this case was in denial to resign his case. This client received two times a mailed with a writ for Change of Attorney's form duly signed. The information provided by him was that under the insistence of his (female) lawyer who works(ed) and/or receives(ed) cases referred by an "ambulance chaser", Universal, located at Queens Boulevard, he had not choice but to file said complain, as a condition, so his lawyer (she) may represent him. In fact the lawyer in this case resigned all and every case he interviewed at this place when he found out what really was happening there.
In fact, Reynolds had not a good case, reason why the lawyer in this case wrote him a letter declining his case, among the other clients as well. Mr. Reynolds denied having received that communication through his aunt and/or mother. However Reynolds stated that his lawyer had communications with someone at the First Department Disciplinary Committee and that his new lawyer (she) was told about respondent's matter in Puerto Rico.
HOW ABOUT JOE LEGNARD-INVESTIGATOR-THIRD DEPARTMENT? WHO MOVED HIM TO INVESTIGATE? WHY HE DID NOT INITIALLY REFER THIS TO THE FIRST DEPARTMENT ? THE THIRD DEPARTMENT NEVER KNEW ABOUT THE ATTORNEY 'S ADDRESS IN MANHATTAN?
Joe Legnard, Investigator for the Committee On Professional Standards at Albany moved to obtain information, on time, before the First Departmental Disciplinary Committee did? How come? Why he was moved and who ordered him to do so for the Third Department and not straight for the First Department the place of business since 1990? By the way Reynolds called few months later complaining that his lawyer(she)didn't accept the form of resignation . Never heard of him anymore, and the case was dismissed. Of course, but now the Committee-First Department had the excuse to allege 'surprise you never notified us'.The First Departmental Disciplinary Committee's version is contradictory and weird as well. Giving a careful reading to Reynolds's documentation same reveals a vague and frivolous excuses for him to file said complaint. In any event, the complainant Reynolds should have testified before the Committee, but they didn't call him at all to investigate this little detail. Of course, they would never do so. However the proceedings are still pending before the Appellate Division-First Department of the Supreme Court of the State of New York maybe an investigation may arise properly.
Many things may be discovered within this proceeding including lawyers as well.
For instance: Why the Committee later alleged about the letter of admonition years before? Did they did or did not know? Did they do or did not need the so-called "Reynolds" excuse reopening the case because they went lack of prosecution?
CONCLUSION:
While other states could look at other disciplinary records in other states or areas where you practiced, the proceedings held against this lawyer in Puerto Rico should never be validated in any state of the United States or any other Country thereof.
Wherefore, it is expected that the Court reaffirms as follows:
(1) the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process;
(2) there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that this court could not consistent with its duties, accept as final the finding in Puerto Rico's jurisdiction as to the attorney's misconduct ; 11
(3) the misconduct for which the lawyer was disciplined in Puerto Rico's jurisdiction do not constitute misconduct in New York or any other Country as well; and find illegal the proceedings in Puerto Rico to annul the judgment held by a Court entered for more than four(4)years, sua sponte 12.
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11 Decision and Order on Motion held by the Supreme Court-Appellate Division, Third Department on June 4,1999, supra.
12 Page 7, supra,(D) " . . . on July 21, 1982, the Honorable Judge Berrios Jimenez rendered judgment ordering the case dismissed with prejudice." (E) " . . . Judge Berrios Jimenez who, after hearing the attorney's allegations in favor of reopening the case, reaffirmed his decision to dismiss the case with prejudice."
Annotations:
1- To exclude a lawyer from the practice of his profession is in violation of the Fifth Amendment of the Constitution , which forbids the depriving of any person of life, liberty, or property without due process of law. Ex parte Wall, 107 U.S. 265 (1883).
2- The "right to notice of the charges against which he must defend is well established. In re Ruffalo, 390 U.S.544 (1968).
3- The information [affidavit] accepted in confidence by a party and admitted into evidence without the right of confrontation by the time it was taken has been substantially erroneous, or misinterpreted,which does not qualify as reliable .
4- Due process demands an opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545.552(1965) ; see In re Oliver,333 U.S. 257, 275(1948)(defendant must be afforded " a reasonable opportunity to meet [the charges against him] by way of defense or explanation"; Morgan v. United States, 304 U.S. 1, 18(1938) ("The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them. ")
Absent a full, fair, potentially effective opportunity to defend against the State's charges, the right to a hearing would be "but a barren one. "Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315(1950) ("process which is a mere gesture is not due process).
"Common justice requires that no man shall be condemned in his person or property without an opportunity to make his defense." Baldwin v. Hale, 1 Wall. 223, 233(1864).
A pro forma opportunity will not do. Due process requires that notice "be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded. In re Gault, 387 U.S. 1,33(1967). All citations came from Gray v. Netherland, Warden, ___US___(June 20,1996)
5- It is for us to make our own determination as to the fitness of an attorney to remain on our scrolls. State proceedings of disbarment, though presumptively correct, are not binding. Selling Radford, 243 U.S. 46.
This is not the first time that the state disbarment proceedings have been challenged as lacking in procedural due process. See Isserman v. Ethics Committee, 345 U.S. 927(dissent).
The case at stake suggest that the requirements of fair procedure, without which no citizen can be deprived of his livelihood, were not satisfied in Puerto Rico.
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An order should be directed to the Committee to analyze this case, including the "ambulance chasers" and to make a report on each one of the allegations an defenses which may reflect the truth, whichever, of the case.
The evidence in the record does not rationally support the only two grounds upon which the Committee relied in suspending this lawyer, and therefore the State's refusal to admit him to the bar was a denial of due process and equal protection of the laws. In re Lacey, 81 P.2d 935, at 936.
ABOUT THE HEARING BEFORE THE REFEREE
6- The Court in October 19th, 1999 also stated, quote: "directing the Committee to provide respondent and the Referee with a translated copy of the record in the underlying proceedings in the Supreme Court of the Commonwealth of Puerto Rico within 60 days". Respondent received a partial and not understandable translated record, Petitioner's Exh. "E", a missing deposition of Pedro Santoni-Roman and the documentations of Civil Case No. 77-416 Superior Court Caguas Part and Civil Case No. 86-259(E) Superior Court Carolina Part, which were the base and grounds for the judgment of indefinite suspension.
7- (See paragraph 12, infra). Notwithstanding the multiple occasions respondent communicated to [the] Staff Counsel, that the Supreme Court of Puerto Rico would do a certified translation, that all its needed is a letter requesting said translation services, a this point with no avail. The burden of the proof lies with the Committee.
8- Pursuant to 22 N.Y.C.R. R. '603.3(c) respondent may set forth evidentiary facts to why further discipline should not be imposed.The burden of the proof lies with respondent .
9- The judgment of suspension, Petitioner's -Exh. "A", in which respondent largely lies was based on facts and proceedings originated from the case No. 77-416, supra, filed in 1977 dismissing the complaint with prejudice, favorable to respondent, more than 24 years ago, which is part of the record. No criminal matter was ever charged. The burden of the proof lies with respondent.
10- Respondent made a phone call to the Staff Counsel for the Committee, suggesting him to invite the referee appointed by the Court, to have a pre-conference meeting and write down an outline of the proceedings to be held, so respondent may be duly prepared. The parties agreed to have the meeting on August 29, 2002 at 11:00AM at the Staff Counsel's office.
11- Respondent mailed a certified-confirmation letter to the Referee, including: "Respondent-Exhibits #1, #2 and #3",separately (copies attached) .
The letter, Exh. #3 literally states as follows, quote:
[Respondent's name at Heading, address and telephone number]
August 24th 2002
[Name] ,Referee etc. . . .
I have conference my case in multiple occasions with Mr.[ ], Esq., Staff Counsel for the Committee. I suggested him the idea to start doing some work, to meet the three of us and do some planning in our case. He called you and I believe we are all set for this Thursday 29th of August, 11:00 AM, at [his] office.
I have provided to [the Staff Counsel] with all pertinent and material information not even limited to my work product, so as to cooperate extensive with the committee as much as possible. We have also agreed that the more Puerto Rico's case is read the more confusing appears to be, and anomalous as well.
The translation of the record made in New York was so awful that I couldn't understand the meaning of the substantive matters that the court needs to know, including the deposition taken to Pedro [ ] and additional documentation, which are missing from the record as well. I suggested [the Staff Counsel]write a letter to the translation division of the Supreme Court of P.R. to obtain an adequate translation of the record. The complete record is a must for me to do a defense properly.
We agreed, last Friday,to separate the two main issues involved in our case, and divided them in phases, e.g.,
Phase-1: Puerto Rico's judgment and its applicability to Section 603.3(c), and
Phase-2: New York's issue about the notification to the committee, so forth.
So, at this point we would begin to deal with phase 1.
It is my intentions to prove the defenses permitted under Section 603.3 (c), which are as follows:
"(a). . . .
(b). . . .
(c) Only the following defenses may be raised:
(1) That the procedure in the foreign jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) That there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that this court could not, consistent with its duties, accept as final the finding in the foreign jurisdiction as to the attorney's misconduct; or
(3) That the misconduct for which the attorney was disciplined in the foreign jurisdiction does not constitute misconduct in this jurisdiction."
I believe that although N.Y.'s jurisdiction usually gives full faith and credit to another state decisions, the fact is that if the circumstances of my case happen to be different due to a proven bias against me I believe that should merit special attention; yet illegalities or irregularities should never apply in New York State.
Due process is violated when the Supreme Court of any state biased against any party.
Under the full faith and credit provisions of United States Constitution Article 4 '1, and Judiciary Law '90(5) disbarment in another state does not automatically deny admission to the New York Bar, nor is readmission to the bar in such state a prerequisite to admission in New York, the court retaining power to consider all factors . . . and to make an independent determination thereof 1. When the court biased there can't be any due process at all.
Finally I also believe that we are handling a case with a special proceeding, civil in character2, where up to a point the rules of discovery apply as well, since we are dealing with an adversary matter 3.
Issue[s] may not be relitigated in disciplinary proceeding, but competent evidence may be adduced to explain or mitigate the significance of . . . .[my case]4, reason why I believe you should need to know the whereabouts of my case in details, even though not to solve its merits.
Very truly yours
Signed " . . . . .Well the document speaks by itself !
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1 Re Kimball (1973, 2d Dept) 40 AD2d 252, 339 NYS2d 302, reversed on other grounds 33 NY2d 586, 347 NYS2d 453, 301 NE2d 436.2
2 Re Spencer (1910) 137 AD 330, 122 NYS 190; Re Bauder (1908) 128 AD 346, 112 NYS 761.
3 Sarisohn v Dennison (1967) 53 Misc 2d 1081, 281 NYS2d 475.
4 Issue of guilt based on a prior conviction may not be relitigated in disciplinary proceeding,but competent evidence may be adduced to explain or mitigate the significance of a criminal conviction. Re Hemlock (1976, 1st Dept) 52 AD2d 248, 383 NYS2d 600." [and a quote]
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12- As soon as [the Referee]arrived around 12:10 PM, immediately claimed he was the referee; subsequently ordered to set the recording machine indicating that he would start doing questions. The record, which is in possession of the Staff Counsel, should reveal that when respondent asked [the Referee]if he received respondent's letter he confirmed having received it. It was the certified mail enclosing exhibits 1,2 and 3, supra.
13- The record shows that based on referee's questions, and the way he was pulling out papers from respondent's folders, apart of some contradictions and confusions, looked like he didn't know what the case was all about.
14- {The Referee] either ha[d] no civil litigation practice experience, particularly in matters like torts, foreclosures, damages and the applicability of the Civil Procedures Law and Rules and/or doesn't know the whereabouts of this case. Apparently his field of specialization is exclusively on disciplinary matters, since the record shows that basically he acted like a Chief Counsel for the Committee. The burden of the proof lies with respondent.
15- Referee should be knowledgeable in civil litigation in this particular case so as to recommend on his report about the issues raised like: "Procedure Lacking In Notice or Opportunity to be Heard as to Constitute a Deprivation of Due Process,(emphasized) pursuant to 22 NYCRR Section603.3(c)", like:
Second dismissal, with prejudice
Revision denied-without opinion
Separate action->Not to relitigate the appealed case
Plaintiff never appealed
Sworn-statement->Self serving->Hearsay
Res judicata->Respondent acquired property still pending appeal
Privity->Summary judgment with real disputes on litigation
Usury defense
Opinion without charges and notification
16- More important, the unusual complexity of issues of facts, pursuant to 22 N.Y.C.R.R. '603.3(c) where respondent may set forth evidentiary facts and law does warrant an appointment of a referee with such qualifications. Referee should be familiarized with the facts and law upon which he will base his report .
17- [The Referee;s] impartiality is questioned
. Orders like: " on and out of the record"; challenging the validity of the defenses without reading and/or discussing the content offered thereof, not having even the judgment of the Supreme Court Puerto Rico, which had always been available to him; also didn't allow respondent to offer his version by stating: "I don't want to hear your version", denotes at the very least his partiality.
All and every explanations about proceedings that respondent tried to give were futile.
18- It has been held that litigants have a due process right "to a neutral and detached [judgment] in the first instance"regardless of whetherany "unfairness can be corrected on appeal and trial de novo." Ward - 409 U.S. at 61-62. Respondent has a constitutional right to have "basic issues" to be heard "decided by the Referee in the first instance." In re United States, 816 F.2d at 1091 (emphasis added). The Referee, apparently pictures his role equivalent to an investigating magistrate opposed to a neutral quasi-judicial officer in an adversary proceeding.
19- It is acknowledge that a referee offers his services voluntarily for a nominal fee; evertheless should provide fair, courteous and timely services. Hearings should be presided over by impartiality and should have training and experience in specialized legal matters. The referee looked more likely a Chief Counsel for the Committee than an impartial referee.
20- The referee opposed to do a joined analysis of the partial record, the arguments for the defenses and the applicable law.
21- The referee should provide an efficient way of ensuring that persons affected by his recommendations have access to due process of law, like:
Reasonable advance notice. In this case respondent was the one who call to have a pre-conference meeting, to work out a timetable.
Evamine the evidence at a reasonable time before the hearing
It was requested to petitioner, through the Staff Counsel, a demand to produce documentations, and other pertinent and material evidence in their possession.
Subpoena needed witnesses with sufficient advance notice of their need to appear.
Participate fully extent without undue interference.
To allow respondent to testify, bring witnesses, submit evidence, ask questions, confront, etc., in a meaningful way.
22- A pre-hearing conference could have even been conducted by telephone.
The Referee is there to make sure all parties have a fair opportunity to be heard and that the record and the whole evidence is completed for him to come out with a report.
Seems that the referee had a personal interest in the outcome of this case.
A fair hearing should be consistent with the rights of the parties and the respect and dignity of all persons involved.
23- It was respondent's idea to meet [the referee together with [the]Staff Counsel.
After the referee issues a notice of hearing, he should have conducted a pre-hearing conference, within reasonable days prior to the hearing date.
[The Referee], never issued a notice of hearing.
24- The conference is designed to discuss, narrow and resolve issues brought in the Petition and the answer; enter into some settlement discussions; address motions; agree to stipulations of fact; and discuss subpoena requests.
25- The referee deprived respondent's right to a fair hearing as required by the Due Process Clause of the United States Constitution and the Constitution of New York.
26- Respondent insisted for an impartial referee to ensure a fair and impartial hearing in the first instance, where is the "first instance?, at the first step: the referee's hearing).
GUESS WHAT? Took for over one(1) year for the referee to rewrite as a complilator and to file his resport against respondent without the due process of law. Isn't this another 'fiasco'? Currently this doesn't take more than a week to do so.
On the other the Staff Counsel as a great 'monkey see, monkey do' personator mailed the referee's report to the address chosen by the last, disregarding the fact that at all times he was mailing to respondent's P.O. Box number. Respondent never received the correspondence until he found out the 'fiasco' through out the Committee of Fitness & Character. We wonder if the Staff Counsel has a proper personality and character, or whether he should rather prefer to follow the mass?
The case was refered to a Hearing Panel. We will keep you updated.
ABOUT P.R.'S OPINION:
To read the Supreme Court of Puerto Rico's blunder decision case exhaustively go to Ralph Stevens at Favorite Links.
