Corruption in the Henhouse

November 10, 2007

COMMENTARY

When you have foxes guarding the hen house, the outcome is inevitable.

So are the majority of decisions by the disciplinary committees in New York State for lawyers and judges.

The committee members cover for each other. One lies, the other one swears to it, kind of like they do in court.

In New York State, authority over the conduct of attorneys rests with the Appellate Division of State Supreme Court and the discipline and grievance committees appointed by that court.

In the Third Department which encompasses the Fourth, Fifth and Sixth Judicial Districts, the chairperson of the Committee on Professional Standards (COPS) which purportedly polices attorney misconduct is a judge, Philip Caponera of Colonie.

And the chairperson of the state Commission on Judicial Conduct is a lawyer, Raoul Lionel Felder of New York City.

One hand washes the other.

At least the state's disciplinary panel for judges issues an annual report. COPS does not and neither do any of the other departmental disciplinary committees.

Last year, HALT rendered a scathing indictment of attorney disciplinary agencies nationwide with its 2006 Lawyer Discipline Report Card that issued grades to disciplinary systems in all 50 states and the District of Columbia. More than half the states received grades below C. New York State ranked 36th in the nation overall, earning an overall grade of D+. HALT produced the Report Card to assess whether states have taken any meaningful action to improve the lawyer discipline system since the organization's last Report Card in 2002. Unfortunately, few states showed any improvement, and many states' systems actually saw their grades decline. To review the report state by state, see http://www.halt.org/reform_projects/lawyer_accountability/report_card_2006/.

Unlike every other state in the country, New York is divided by county into several distinct lawyer discipline agencies. The First Department regulates attorneys working in Manhattan and the Bronx; the Second Department, Districts 2 and 11, governs lawyers with offices in Brooklyn, Queens and Staten Island; the Second Department, District 9 regulates attorneys working in the Hudson Valley; the Second Department, District 9 governs lawyers with offices on Long Island; the Third Department regulates attorneys working in the state's center, eastern and western counties; and the Fourth Department governs lawyers with offices in the state's northern counties.

HALT found that the average attorney discipline body in New York imposes public sanctions in less than three percent of investigated cases. Four out of every five members of the average New York disciplinary hearing panel are lawyers; non-lawyers have only a token role in the decision-making process in most New York disciplinary departments.
http://www.northcountrygazette.org/articles/042306ReportCard.html

Complainants often find that after they file heavily documented complaints about attorney misconduct, they hear no more until exactly six months later, they receive a form letter stating that "our staff has completed its investigation of your inquiry........and upon analysis and report......the committee has determined there is insufficient basis for a finding a professional misconduct by the attorney on question and therefore, we are closing our file in this matter".

Such was the case recently in a complaint against Gary C. Hobbs, a part- time judge in the Glens Falls City Court and a partner in Poklemba & Hobbs, a law firm with offices in Saratoga Springs and Glens Falls.

For more than seven years, Hobbs claimed that he filed a required oath of office as a special district attorney in the Warren County Clerk's office. He's filed sworn affidavits with Warren County in billings, claiming that he performed services which can be easily proven by the court record he didn't.

The thing is, two county clerks repeatedly certified in writing that the oath claimed to have been filed by Hobbs didn't exist in the county's records and neither did any certificate of appointment for Hobbs to that office for the period he claimed the office-1998 through 2004. Not only that, but the Office of Court Administration also certified that he never filed his certificate of appointment or oath of office with them as required.

OCA staff counsel said the oath had to be filed with the Warren County District Attorney's office, however, former ADA Katherine Henley certified that it was not.

Despite the existing paper trail, showing that Hobbs had not only violated Public Officers Law, had filed alleged falsified billings with the county and had acted without legal authority in violation of County Law 701, COPS determined there was "insufficient basis for a finding of professional misconduct".

Doesn't the filing of false vouchers, statements and sworn affidavits with a municipal body constitute professional misconduct?" How about filing a sworn statement that you've filed your oath of office when public records and the keeper of the those records indicate you haven't? After all, it's not just the Code of Professional Responsibility at issue, it's a matter of the state and federal Constitutions as well as state statutes including the Penal Law.

Despite his failure to comply with Public Officers Law, County Law and the state and federal Constitutions, Hobbs continued to act as a special prosecutor, billing and collecting over $60,000 from Warren County taxpayers to prosecute one person on harassment charges from 1998 and until he was appointed the part-time city court judge in Glens Falls in 2004. In fact, county records indicate that due to the vendetta of Hobbs and Warren County Sheriff Larry Cleveland and several other individuals against North Country Gazette publisher June Maxam, over a period of nearly nine years, they obligated county taxpayers to over $200,000 to maliciously prosecute frivolous and baseless charges which eventually were dismissed.

The North Country Gazette has recently obtained copies of Hobbs' billings to the county for his "services" as a special district attorney. Although county vouchers and state law require that certifications be completed and dated, none of Hobbs' vouchers were signed. Time after time, Hobbs' bills to the Warren County Board of Supervisors showed irregularities and just plain false billings.

Hobbs' bills, which total over $60,000 for the case, were virtually rubber stamped for payment by Warren County officials and in many instances, were approved without the county salons, and the county attorney, following proper procedure or taking steps to protect the financial interests of the taxpayers.

Did taxpayers pay for Hobbs to travel to Lake Placid for a weekend getaway with his wife? According to his billings to the county they did.

In submitting one bill total $7,253.92, Hobbs presented an order signed by Saratoga County Court judge Jerry Scarano. However, according to law, Scarano had no legal authority to sign the order as he did not adjudicate the case and thus had no knowledge of truthfulness of Hobbs' claim. In that the order was legally invalid, the county had no legal basis to expend taxpayer money to pay Hobbs. Such facts are easily proven as it's a matter of record that Scarano didn't adjudicate the charge but COPS says there's an "insufficient basis" of misconduct.

Then there was a bill of $14,120 bill submitted by Hobbs and immediately paid. However, there was absolutely no itemization of what Hobbs did for over $14,000 and the board of supervisors apparently didn't care, giving him a blank check. Even when questions were raised about the bill, he still didn't provide any itemization. Would you pay a bill submitted to you for $14,100 without itemization of what it's for or if it had been earned?

According to County law, both Hobbs and Scarano violated County Law which states that only the presiding judge can sign such an order for disbursements and fees for a special prosecutor. In order for Hobbs to be legally paid by the county, the order would have had to been signed by Queensbury town justice Michael J. Muller as Scarano cannot legally certify to something of which he has no knowledge.

According to legal sources, Scarano's actions were akin to falsely swearing or making a false statement which would invalidate Scarano's order. But what the hey, the judicial disciplinary committee washes the hand of COPS.

Additionally, Hobbs failed to submit his claim by voucher without the proper certification as required for vendors doing business with the county. Although the county allegedly has legal representation in the persona of Paul Dusek, it appears the county improperly paid the claim and Dusek, uncle of Queensbury supervisor Dan Stec, didn't protect the county interests.

A review of Hobbs' bills indicates repeated irregularities and overbillings at $90 an hour.

For instance, Hobbs states that he attended the Queensbury trial of NCG publisher June Maxam in Queensbury town court on harassment charges for six hours on Dec. 8, 2000, for which he billed $540. However, court records prove that the trial session lasted only four hours that day because Hobbs had requested an adjournment in order to embark on a "weekend getaway" to Lake Placid. Hobbs told the court he had planned the trip for several weeks and his wife "wouldn't be happy" if they couldn't go. With Hobbs billing for two hours more than the trial was in session and while he was presumably on the road traveling to Lake Placid, it appears that taxpayers paid for his travel time and mileage for his holiday. Evidence exists that Hobbs consistently unlawfully billed to perform services that were outside the scope of his authority for which he had no appointment and no jurisdiction, failed to file the requisite oath and certificate of appointment and then lied about it when questioned.

And ultimately, after maliciously prosecuting the harassment charges for eight years, the unjust convictions were reversed and ultimately the charges were dismissed-at an enormous cost not only to the publisher but to county taxpayers.

Hobbs was paid from the county coffers in violation of County Law as there were no board resolutions authorizing the payment of his fraudulent billings and no indication that the board had reviewed and approved them as required by County Law 701(5).
http://www.northcountrygazette.org/news/2007/07/09/which_side_bench/
http://www.northcountrygazette.org/articles/2007/020407UnequalTreatment.html
http://www.northcountrygazette.org/news/2007/10/27/the_odd_couple/

The paper trail exists, it's a matter of record. In many cases, Hobbs billed for hours in non-existent or exaggerated court hearings, letters written which didn't exist.

After a criminal complaint was filed against Hobbs with the Warren County District Attorney's office in January for having allegedly filed a false statement in regard to the oath of office and the issue was raised in federal court proceedings, the oath suddenly appeared this spring, nearly nine years later, evoking questions of altered and falsified documents. The Public Integrity Unit of the state Attorney General's office opened one inquiry into the matter while also referring it to the Committee on Professional Standards. Predictably, exactly six months to the date that COPS received the complaint on Hobbs, the complaint was dismissed, claiming there was an "insufficient basis for a finding of professional misconduct".

Was Hobbs asked to respond to the complaint? Who knows, likely it was just indexed for dismissal six months after receipt as seems to be standard operating procedure for the Third Department COPS. If a response was provided, no copy was provided to the complainant. The attorney has virtual free rein to make whatever statement he or she wishes in an attempt to refute the complaint without the knowledge of the complainant. Meanwhile, Hobbs continues in his highly conflicted roles in Warren County. The complaint concerning that situation remains open before the state Commission on Judicial Conduct. While he's busy acting as a defense attorney in the Bolton Town Court for the Nassau police officer accused of shooting a dog in the town of Hague, as judge, Hobbs is adjudicating a dog bite case in city court, levying a criminal contempt charge against dog owner Christopher Lyon of Glens Falls. That case has recently been adjourned in contemplation of dismissal. If Lyons doesn't abridge the law as it is according to Hobbs within the next six months, the contempt charge lodged against him by Hobbs will disappear.

Besides that, Hobbs has already tried acting as a special prosecutor in Warren County while he was wearing his black dress but a judge in a higher court slapped him down, advising Hobbs that he was ethically precluded from acting as a judge and prosecutor in the same county at the same time and unbelievably at the same time his law firm was and is acting as legal counsel for the NYS Association of Chiefs of Police while the Glens Falls police chief and his department was bringing charges before Hobbs for adjudication. Nevertheless, it didn't stop him from billing Warren County taxpayers for filing motions in his prohibited role as the same time he was a judge--and despite the court ruling, the Warren County Board of Supervisors paid him to act in his unethical role.

The state's procedures and handling of complaints involving attorney misconduct is being challenged in a federal lawsuit filed late last month by Christine C. Anderson, a staff attorney for six years for the disciplinary committee of the state Supreme Court's Appellate Division in the First Department, Manhattan.

This lawsuit gives a startling and honest look at the good ole boy system and charges that some cases are "whitewashed" for "personal or political reasons". The lawsuit seems to indicate that often times, those who are engaged in the most egregious misconduct are those who escape sanction because of who they know or their particular political or financial position.

It appears though that the situation may not exist solely in the First Department though. A hard look needs to be taken of the entire attorney and judicial disciplinary system-especially in the Third Department which includes the state's capital county, Albany, home of the State Legislature which has high percentage of lawyer-members.

Anderson's job for over six years was investigating lawyers charged with misconduct and in June, she was fired. Her lawsuit doesn't name the attorneys who allegedly received the special dispensation but it does names her supervisors that she says blocked sanctions and discipline of lawyers against whom she had found "overwhelming concrete evidence of misconduct. She was employed as a principal attorney at the division's departmental disciplinary committee (DDC) which is responsible for investigating and disciplining attorneys found guilty of misconduct in representing the public.

The suit says that upon learning of DDC's pattern and practice of whitewashing and routinely dismissing complaints leveled against certain select attorneys, to the detriment of the very members of the public the DDC is duty bound to serve, Anderson reported these wrongdoings. Instead of attempting to address and rectify the problems, the DDC embarked on a campaign of abuse and harassment of Anderson, she says, "purposely impeding and obstructing her ability to fulfill and serve in her legitimate job functions and ultimately culminating in her retaliatory dismissal".

Named as defendants are Judge John Buckley, presiding justice, First Department, Office of Court Administration; Thomas Cahill, chief counsel of the DDC; Sherry Cohen, first deputy counsel Catherine O'Hagen Wolfe, clerk of the court of the Appellate Division, First Department; and David Spokony, second deputy, clerk of the court.

The conduct complained of consisted of the following, according to Anderson. In July, 2006, she was allegedly assault by Cohen and unlawfully imprisoned in her office. She says she was subjected to retaliation by Cohen when she complained of the assault and was subjected to "counseling" without cause without the presence of a union representative. After attending that session, she says she was abruptly told that a follow up "counseling" was canceled.

Anderson was then fired during the pendency of a union grievance against Cohen. She is requesting the appointment of a federal monitor to oversee the operations of the DDC on a day-to-day basis for an indefinite period. The lawsuit has been filed in the U.S. District Court for the Southern District. Anderson, 62, who is black, says she was also the victim of age and race discrimination. The defendants are all white.

The lawsuit details allegations of corruption which Anderson says exists in the DDC and relates instances of complaints which were dismissed after she had investigated and determined that misconduct of the attorney had occurred, and that investigative findings and evidence had been removed from the attorney's file. She alleges that the case file in question had been gutted by Cohen and Cahill who had conspired to cover up the attorney's misconduct and her recommendations for their own personal and/or political incentives. Anderson seeks $10 million in damages as well as punitive damages and attorney's fees. Not only should the operations of the First Department's disciplinary committee come under immediate review, but the entire state attorney grievance committee procedure. COPS and the Third Department for certain is not exempt.

The committees are made up of both attorneys and non-attorneys, working with a court-appointed, state financed, full-time professional staff through the Office of Court Administration. Each committee supposedly investigates the complaints received by it or, in some cases, refers the complaint to a county bar association for resolution. Complaints must be in writing, and if the complaint describes conduct which would be considered improper, if proved, the attorney against whom the complaint is made presumably must respond to the complaint in writing. If the committee determines after investigation that the attorney's conduct was improper, it can send the attorney a letter of caution, admonition or reprimand, advising him or her of the impropriety of the conduct.

These letters are not made public, but are retained as part of the attorney's record. The complainant is advised if action is taken. In cases of serious misconduct, the committee may refer the matter to court for action. If the court, after a hearing by a disciplinary panel or referee, decides to take disciplinary action against that attorney, the decision customarily is made public.

In fact, the entire process is typical star chamber. Virtually the only time the public becomes aware of attorney discipline is when it reaches the stages of suspension or disbarment and is brought before the respective Appellate Division in a courtroom proceeding.

All in all, the majority of the disciplinary process for lawyers, as for judges, is secret. In New York State, there is no annual report issued about disciplinary actions concerning lawyers. One can presumably visit the website for the state's Unified Court System to look up an attorney's registration and to learn if that attorney has been the subject of disciplinary action. However, there are no specifics listed if an attorney has been cited for misconduct and a request has to be submitted asking for details. There are no statistics to show how many complaints have been submitted, how many dismissed, how many sanctioned and for what.

The Third Department's COPS consists of 21 members, all of whom serve without compensation. The committee is charged with the investigation of alleged professional misconduct by attorneys who practice in the 28 upstate counties which constitute the Third Department. All but three of the committee members are attorneys.

Members of the Third Department COPS are chairperson Philip Caponera; Third District, John R. Casey of Albany; William J. Keniry of Albany, Alfred Mainetti of Kingston; Peter Platt of Colonie; Gail Rubenfeld of Monticello; Fourth District, Vincent Capasso Jr. of Schenectady; Joseph Curtin of Saratoga Springs; John Niles of Plattsburgh; Edgar Purcell of Glens Falls; Richard Wickerham of Schenectady; Sixth District, James Chivers of Binghamton; Eileen Coccoma of Oneonta; Thomas Emerson of Norwich; Leonard Govern of Walton; Peter Mitchell, Cazenovia; John J. Ryan Jr., Elmira and John A. Stevens of Ithaca Each member, appointed by the presiding justice of the Third Department, currently Anthony V. Cardona, serves for three years. Members can serve two three-year terms. COPS has been operating as part of the Unified Court System since 1977. Prior to that time, it performed the same function as part of the New York State Bar Association. While the committee admits it maintains a "relationship" with the state bar association, they claim they are separate and distinct entities.

The office for the Third Department COPS is located at 40 Steuben St. in Albany. Committee operations are funded by the Office of Court Administration through the $300 registration fee which all attorneys are required to pay every two years. Although the Committee may on its own commence an investigation into an attorney's conduct, the vast majority of inquiries are received from the general public. The initial inquiry must be in writing and should set forth allegations which, if true, are sufficient to establish a charge of professional misconduct. Inquiries should be accompanied by all available supporting documentation.

The Committee's investigative staff is available to explain procedures and assist the public in the filing of an inquiry. If review of an inquiry reveals potential misconduct, the matter is taken up with the attorney, who is required to respond in writing and cooperate with the investigation.

Where necessary, testimony may be taken under oath and additional investigation conducted--supposedly.

Upon completion of the investigation, the matter is presented to the full Committee for consideration. The Committee may issue a letter of caution or a letter of admonition to the attorney. These are confidential forms of discipline which remain part of the attorney's permanent record.

The Committee may also issue a letter of education where misconduct has not been found but the attorney's action warrants comment. If the Committee considers the attorney's conduct to be particularly egregious, it may authorize the institution of a disciplinary proceeding, which are few and far apart.

At the conclusion of that proceeding, the Appellate Division, if it determines misconduct has been established, may censure, suspend or disbar the attorney or, if it determines misconduct has not been established, it may dismiss the proceeding or send the matter back to the Committee for further action.

The Committee works closely with the New York Lawyers' Fund for Client Protection in seeing that clients who have lost money or property, because of an attorney's dishonest conduct in the practice of law, are reimbursed.

The power to discipline New York attorneys is found in Section 90 of the Judiciary law.
http://caselaw.lp.findlaw.com/nycodes/c53/a7.html

The allegations of systemic corruption in the statewide court system and specifically in the attorney disciplinary committees which are charged with overseeing the ethics and integrity within the state court system are serious and troubling, documenting the need for not only an overhaul and review of the system, but as the lawsuit states, a federal monitor to oversee the court system, undertake reforms and restore integrity to insure that New York's court system is transparent, accountable and ethical and corruption-free.

© North County Gazette, 2007