In the Matter of Joel R. Brandes, a disbarred attorney, Appellant.BriefN.Y.September 8, 2016To Be Argued By: CHRIS G. MCDONOUGH Time Requested: 30 Minutes APL-2016-00044 Appellate Division Second Department Docket No. 1999-07006 Court of Appeals STATE OF NEW YORK In the Matter of JOEL R. BRANDES, a disbarred attorney, Appellant. BRIEF FOR APPELLANT d CHRIS G. MCDONOUGH MCDONOUGH & MCDONOUGH, LLP 401 Franklin Avenue, Suite 210 Garden City, New York 11530 Telephone: (516) 387-0266 Facsimile: (516) 333-0200 Attorneys for Appellant April 25, 2016 i Table of Contents Table of Contents.............................................. i Table of Authorities......................................... iii I. Preliminary Statement...................................... 1 II. Relevant Statutes, Orders and Appellate Division Rules.... 10 III. Questions Presented...................................... 11 IV. History and Nature of the Case............................ 15 V. Jurisdiction............................................... 23 POINT I....................................................... 25 IN TREATING MR. BRANDES DIFFERENTLY THAN ALL OTHER PERSONS SEEKING REINSTATEMENT TO THE BAR, THE APPELLATE DECISION DENIED MR. BRANDES THE EQUAL PROTECTION AND DUE PROCESS OF LAW....... 25 POINT II...................................................... 32 THE APPELLATE DIVISION ABUSED ITS DISCRETION AS A MATTER OF LAW AND ACTED IN AN ARBITRARY AND CAPRICIOUS MANNER WHEN IT FAILED TO REINSTATE MR. BRANDES IN THE ABSENCE OF ANY EVIDENCE OF BAD PERSONAL CHARACTER OR LACK OF FITNESS TO PRACTICE LAW......... 32 POINT III..................................................... 35 THE APPELLATE DIVISION MISCONSTRUED AND MISAPPLIED ESTABLISHED PRECEDENT IN HOLDING THAT MR. BRANDES ENGAGED IN THE PRACTICE OF LAW........................................................ 35 POINT IV...................................................... 49 THE PROVISION IN 22 NYCRR 691.10 (a) THAT DISBARRED ATTORNEYS- AT-LAW SHALL COMPLY FULLY AND COMPLETELY WITH THE “SPIRIT” OF JUDICIARY LAW §478 WAS NOT PROPERLY PROMULGATED BY THE APPELLATE DIVISON PURSUANT TO ITS RULE MAKING AUTHORITY BECAUSE IT IS CONTRARY TO EXISTING LAW, AND ASSUMING IT WAS PROPERLY PROMULGATED, ITS APPLICATION TO MR. BRANDES, REQUIRING HIM TO COMPLY FULLY AND COMPLETELY WITH THE “SPIRIT” OF JUDICIARY LAW §478 DEPRIVED HIM OF DUE PROCESS OF LAW................. 49 POINT V....................................................... 58 THE DENIAL OF A FAIR HEARING DENIED MR. BRANDES DUE PROCESS... 58 POINT VI...................................................... 62 THE APPELLATE DIVISION ABUSED ITS DISCRETION AS A MATTER OF LAW........................................................ 62 ii Point VII..................................................... 63 THE APPELLATE DIVISION ORDER WAS MADE IN DEROGATION OF MR. BRANDES FIRST AMENDMENT RIBHTS............................ 63 POINT VIII.................................................... 65 MR. BRANDES HAS COMPLIED WITH 22 NYCRR 691.10(a) WHICH REQUIRES THAT: “DISBARRED …ATTORNEYS-AT-LAW SHALL COMPLY FULLY AND COMPLETELY WITH THE LETTER AND SPIRIT OF SECTION[S] 478… OF THE JUDICIARY LAW….”....................... 65 CONCLUSION.................................................... 69 iii Table of Authorities Cases A.G. Ship Maint. Corp. v. Lezak, 69 N.Y.2d 1, 503 N.E.2d 681 (1986) .......................... 50 Abercock v. County of Nassau, 213 A.D.2d 691, 624 N.Y.S.2d 446 (2nd Dep’t 1995) ........................... 28 Abrams v. Bronstein, 33 N.Y.2d 488, 354 N.Y.S.2d 926 (1974) ..................................... 27 Application of Riley, 277 A.D. 993, 100 N.Y.S.2d 89 (App. Div. 1950) ............................................ 55 Arbital v. Allstate Ins. Co., 282 A.D.2d 560, 723 N.Y.S.2d 386 (2d Dept., 2001) ........................................ 56 Ashton v. Kentucky, 384 U.S. 195.............................. 56 Betts v. Brady, 1942, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 ............................................... 58 Board of Regents v. Roth, 408 U.S. 564 (1970)................. 55 Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d 617, 814 N.E.2d 410 (2004) ....................................... 26 Broome County Farmers’ Fire Relief Assn. v. New York State Elec. & Gas Corp., 239 App.Div. 304, 268 N.Y.S. 131; affd. 264 N.Y. 614, 191 N.E. 591 ............................ 51 Chase Watch Corp. v. Heins, 284 N.Y. 129, 29 N.E.2d 646....... 51 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ....................... 26 Cohn v. Borchard Affiliations, 25 N.Y.2d 237, 303 N.Y.S.2d 633, 250 N.E.2d 690 ......................................... 50 Dunlap & Co. v. Young, 12 Bedell 327, 174 N.Y. 327, 66 N.E. 964 (1903) .................................................. 59 El Gemayel v. Seaman, 72 N.Y.2d 701, 533 N.E.2d 245 (1988) ................................... 12, 30 El Gemayel v. Seaman, 72 N.Y.2d 701, 533 N.E.2d 245 (1988) ....................................... 47 Gair v. Peck, 6 N.Y.2d 97, 188 N.Y.S.2d 491, 160 N.E.2d 43 ............................................... 51 Giaccio v. Pennsylvania, 382 U.S. 399......................... 57 Habenicht v. R.K.O. Theatres, Inc., 23 A.D.2d 378, 260 N.Y.S.2d 890 (1 Dept. 1995) ................................. 56 In re Culhane, 49 A.D.3d 64, 848 N.Y.S.2d 165 (2007).......... 55 In re Wiesner, 94 A.D.3d 167, 943 N.Y.S.2d 410 (2012)......... 55 Jemzura v. McCue, 45 A.D.2d 797, 357 N.Y.S.2d 167 (3 Dept. 1974) ............................. 29, 68 iv Kinsella v. United States, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960) ........................................ 59 Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 ................................. 57 Lambert v. Lambert, 270 N.Y. 422, 1 N.E.2d 833................ 50 LaSalle Bank, NA v. Pace, 31 Misc. 3d 627, 919 N.Y.S.2d 794 (Sup. Ct. 2011) aff’d, 100 A.D.3d 970, 955 N.Y.S.2d 161 (2012) ..................................... 52 Manes v. Goldin, 400 F.Supp. 23 (E.D.N.Y. 1975), aff’d, 423 U.S. 1068, 96 S. Ct.851, 47 L.Ed.2d 80 (1976) .... 28 Mark G. v. Sabol, 93 N.Y.2d 710, 717 N.E.2d 1067 (1999)....... 57 Matter of Marino, 20 N.Y.2d 176, 229 N.E.2d 23 (1967)......... 43 Matter of Brandes, 292 A.D.2d 129 (2d Dept. 2002)............. 15 Matter of Brusco v. Braun, 84 N.Y.2d 674, 621 N.Y.S.2d 291, 645 N.E.2d 724 ............................ 51 Matter of Holtzman, 78 N.Y.2d 184 (1991)...................... 56 Matter of Jacquilin M, 83 A.D.3d 844, 922 N.Y.S.2d 111 (2 Dept. 2011) .............................................. 56 Matter of Mairs, 102 A.D.2d 146, 476 N.Y.S.2d 551 (1st Dep’t 1984) ............................................ 55 Matter of New York County Lawyers’ Assn. v Dacey, 28 AD2d 161, [Stevens, J. P., dissenting], revd on dissenting opn below 21 N.Y.2d 694 ............................. 12, 30, 36, 37 Matter of Rosenbluth, 36 A.D.2d 383, 320 N.Y.S.2d 839)........ 65 Matter of Rowe................................................ 64 Matter of Rowe, 73 N.Y.2d 336, 537 N.E.2d 616 (1989).......... 57 Matter of Rowe, 80 N.Y.2d 336, 604 N.E.2d 728 (1992).......... 46 Matter of Rowe, 80 N.Y.2d 336, 604 N.E.2d 728, 590 N.Y.S.2d 179 (1992) ................................. 12, 35 Matter of Rowe, 80 N.Y.2d 336............................. 22, 43 McQuigan v. Delaware, Lackawanna & W.R.R. Co., 129 N.Y. 50, 29 N.E. 235 .................................... 51 Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 .............................................. 53 N.Y. State Trawlers Assn. v. Jorling, 16 F.3d 1303 (2d Cir. 1994) .............................................. 32 O’Brien v. O’Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743 (1985).... 54 Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 ................................ 54 Patron v. Patron, 40 N.Y.2d 582, 388 N.Y.S.2d 890, 357 N.E.2d 361 (1976) ....................................... 63 People v Alfani, 227 NY 334................................... 47 People v. Byron, 17 N.Y.2d 64, 268 N.Y.S.2d 24, 215 N.E.2d 345 .............................................. 53 v People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625, 399 N.E.2d 513 .............................................. 53 People v. Illardo, 48 N.Y.2d 408, 423 N.Y.S.2d 470, 399 N.E.2d 59 ............................................... 53 People v. Ramos, 85 N.Y.2d 678, 651 N.E.2d 895, 901 (1995).... 50 Purdy v. Kreisberg, 47 N.Y.2d 354, 418 N.Y.S.2d 329 (1979).... 32 Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 .............................................. 53 Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 .......................................... 58 See El Gemayel v. Seaman, 72 N.Y.2d 701, 533 N.E.2d 245 (1988) ........................................ 6 Shagoury v. Shagoury, 39 A.D.3d 527, 835 N.Y.S.2d 215 (2 Dept. 2007) .............................................. 56 Silverstein v. Goodman 113 A.D.3d 539, 979 N.Y.S.2d 308 (1 Dept. 2014) .............................................. 59 Spence v. Ham, 1 Bedell 220, 57 N.E. 412 (1900)............... 59 Spivack v Sachs, 16 N.Y.2d 164................................ 45 Spivak v Sachs, 16 N.Y.2d 163................................. 47 Spivak v Sachs, 16 N.Y.2d 163, at 166......................... 47 Spivak v. Sachs, 16 N.Y.2d 163, 211 N.E.2d 329 (1965)......... 29 Stokes v. Vill. of Wurtsboro, 123 Misc. 2d 694, 474 N.Y.S.2d 660 (Sup. Ct. 1984) ............................ 30 Thoreson v. Penthouse Intern., Ltd., 80 N.Y.2d 490, 606 N.E.2d 1369 (1992) ...................................... 59 Trio Distr. Corp. v. City of Albany, 2 N.Y.2d 690, 163 N.Y.S.2d 585, 143 N.E.2d 329 ............................ 54 United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 ................................................ 54 Walton v. New York State Dep’t of Corr. Servs., 13 N.Y.3d 475, 921 N.E.2d 145 (2009) ........................ 26 Weissman v. Evans, 56 N.Y.2d 458, 452 N.Y.S.2d 864 (1982)..... 28 vi Statutes Article 1, Section 6 of the New York State Constitution....... 13 Article 1, Section 6 of the New York State Constitution....... 33 Article I, § 11 of the New York State Constitution............ 13 Article I, §11 of the New York State Constitution............. 19 Article VI, Section 3 of the New York Constitution............ 18 Fourteenth Amendment to the United States Constitution........ 13 Judiciary Law § 478........................................... 29 Judiciary Law § 211[1][b]..................................... 31 Judiciary Law § 478....................................... passim Judiciary Law § 90........................................ 11, 24 Judiciary Law § 478....................................... passim Judiciary Law § 486............................................ 7 Judiciary Law § 90(8)..................................... 18, 34 N.Y. Const., art. VI, § 30................................ 30, 31 Judiciary Law § 90,........................................... 11 Other Authorities ABA Model Guidelines for the Utilization of Paralegal services, footnote 1 ........................................ 28 Black’s Law Dictionary (10th ed. 2014).................... 26, 38 New York State Bar Association Guidelines for the Utilization by Lawyers of the Service of Legal Assistants ............... 28 The Restatement (Third) of the Law Governing Lawyers (“Restatement”) (2002) ...................................... 28 Rules 22 NYCRR 691.10(a)............................................ 31 22 NYCRR 691.10[a]............................................ 32 22 NYCRR 691.10(a)............................................ 32 22 NYCRR 691.10(a)................................ 11, 12, 13, 30 22 NYCRR 691.11............................................... 20 22 NYCRR 699.10(a)............................................ 21 Rule 5.8(a) of the Rules of Professional Conduct.............. 26 Treatises Law and the Family New York Forms............................. 14 Law and the Family New York, Second Edition................... 14 1 I. Preliminary Statement This is an appeal, by permission of this Court, (A.2) from an order of the Appellate Division, Second Department dated June 3, 2015, which, despite the recommendation of the Committee on Character and Fitness, denied Mr. Brandes unopposed motion for reinstatement on the ground that “Mr. Brandes engaged in the unauthorized practice of law”, in violation of Judiciary Law § 90(2) and its order of disbarment, “when he provided paralegal services via the internet.”1 (A.3-4) In its order and decision explaining its rationale the Appellate Division first characterized Mr. Brandes as being “a noted authority and expert on New York family law and divorce” (citing “Brandes, Law and the Family New York [2d ed rev, 1997] and cumulative supplements.”) With this preface it then found that “Mr. Brandes …would give advice to an attorney who had a difficult case. Mr. Brandes would speak to the attorney…regarding a particular aspect of the difficult case. 1 The Appellate Divison decision recognized that the internet para-legal business was closed in August 2013. Although it characterized these services as paralegal services, there is no recognized definition of para-legal in New York. For purposes of this brief we define “para-legal” services to include, giving advice to an attorney by a person who is not admitted to the Bar about a particular aspect of a case, guiding an attorney to applicable statutes or precedent cases, and drafting documents and briefs for attorneys. 2 Upon presentation of the particulars of the case or problem Mr. Brandes would guide the attorney to the applicable statutes and precedent cases, and offer his past experiences.” It then concluded that this conduct constituted the practice of law since Mr. Brandes “in so doing exercised professional judgment directed at the legal problem of a particular client, notwithstanding the fact that Mr. Brandes had no direct contact or legal relationship with the client.” The Appellate Division then held that "drafting briefs and other litigation papers”… for other attorneys can be deemed to be “performing legal services for a client”, “namely the attorney for whom he drafted the brief and documents”… “[g]iven the fact that Mr. Brandes was vastly more experienced in matrimonial and domestic relations matters than the attorneys for whom he was performing services.” Finally, the Appellate Division held that by “giving of advice” and “performance of legal services” he violated 22 NYCRR 600.10 (d) which requires disbarred attorneys to “comply fully and completely” with the “spirit” of Judiciary Law §478 – a criminal statute. (A.4) (See Judiciary Law §486 which makes such violation a misdemeanor) It is submitted that, for the reasons which follow, the Court of Appeals should reverse the order of the Appellate Division and grant Mr. Brandes petition for reinstatement to rectify the substantial injustice done by the Appellate 3 Division, whose erroneous and illogical application of controlling Court of Appeals precedent denied him reinstatement. (a) The decision and order of the Appellate Division singles Mr. Brandes out from other disbarred lawyers seeking reinstatement because of his expertise and denies him equal protection of the law, due process of law and freedom of speech. It is arbitrary and capricious. It is also punitive in that Mr. Brandes is now prohibited from working as a paralegal for any New York divorce or family lawyer who is less knowledgeable than him, without offering any objective criteria to determine who is less knowledgeable than him; while his doing so might constitute a crime under Judiciary Law §478. (b) Mr. Brandes was ambushed by the Appellate Division through its prior silence over many years which would led him to believe that it approved of Mr. Brandes employment as a para- legal. Although he disclosed in his 2009 application for reinstatement (A.11-19) that he was doing “para-legal” work, and repeated this disclosure in his two subsequent applications (A.22-28; 85-94), the Appellate Division never hinted in any of its decisions that it considered what he was doing improper. Its decision and order on motion dated April 8, 2014, held his third motion for reinstatement in abeyance and referred the matter to the Committee on Character and Fitness to investigate and report 4 on his current fitness to practice law, “including but not limited to, his future intentions with regard to the paralegal services portion of his Internet business.” This provision would give anyone in Mr. Brandes’ position a sense of security that doing para-legal work was not improper. (c) Prior to this ruling by the Appellate Division no statute, rule of professional conduct or case law prohibited a disbarred attorney from working as a para-legal, and no lay person, paralegal, law clerk, legal assistant, law professor or disbarred or suspended attorney who has given advice or drafted memoranda, briefs and other litigation papers for an attorney has ever been found to be engaged in the practice of law. It is illogical to hold that because Mr. Brandes does paralegal work it is the practice of law, specifically because he knows vastly more than the attorneys whom employed him. Conversely, under the rule enunciated by the Appellate Division, if Mr. Brandes does paralegal work for a more knowledgeable or equally knowledgeable attorney it would not constitute the practice of law. (d) The rationale of the Appellate Division in reaching the conclusion that Mr. Brandes practiced law, and performed legal services for a client, defies reason and logic. For example, the Appellate Division did not find that Mr. Brandes exercised professional judgment “on behalf of a” particular client of the attorney for whom he worked. It found 5 the Mr. Brandes exercised professional judgment “directed at” … “the legal problem of a particular client” for whom he did not work. This finding makes no sense. A lawyer can exercise his professional judgment “on behalf” of a person (a client) but he cannot exercise his professional judgment “directed at” a ‘thought’ such as a legal problem. (i) The lawyer for whom a para-legal performs services represents the particular client. The lawyer is the person who has a fiduciary relationship with the particular client. The lawyer exercises his judgment on behalf of the particular client and decides what legal research to use and what advice to take. The touchstone of the client-lawyer relationship is the lawyer’s obligation to assert the client’s position under the rules of the adversary system, to maintain the client’s confidential information, except in limited circumstances, and to act with loyalty during the period of the representation. See New York State Bar Association, New York Rules of Professional Conduct, effective April 1, 2009. (ii) Mr. Brandes did not represent the particular client. Mr. Brandes did not have a fiduciary relationship with the particular client. Mr. Brandes did not use his judgment on behalf of the particular client or decide what legal research to 6 use and what advice to take. Mr. Brandes had no contact with the particular client. (iii) Giving advice to a lawyer is not giving advice to a client. Doing legal research for a lawyer and drafting documents for a lawyer is not doing legal research or drafting documents for a particular client. The client was not Mr. Brandes’ particular client. Mr. Brandes did not give advice with regard to the legal problem of his “particular client.” Mr. Brandes was the employee of the lawyer. Mr. Brandes gave advice to the lawyer with regard to the legal problem of the client of the particular lawyer. The lawyer is not the “particular client.” The lawyer is not the person who has a specific legal problem. The client of the lawyer is the person who has the specific legal problem. (e) The rationale of the Appellate Division that the lawyers who employed Mr. Brandes were a “particular client” ignores the controlling precedent established by the Court of Appeals that the advice must be given to a particular client who is a member of the public, which the law was enacted to protect.2 The holding that Mr. Brandes exercised his “professional judgment” directed at the legal problem of a client of a lawyer 2 See El Gemayel v. Seaman, 72 N.Y.2d 701, 705-06, 533 N.E.2d 245, 247-48 (1988); Matter of New York County Lawyers Assn. v. Dacey, 21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459, revg. on dissenting opn. below 28 A.D.2d 161, 283 N.Y.S.2d 984. 7 who employed him, by giving advice to the lawyer, although he had no contact with the client, is illogical. It erroneously assumes that Mr. Brandes has “professional judgment” to exercise on behalf of a lawyer or his client. It holds that Mr. Brandes is the lawyer for the lawyer, and for the particular client through the lawyer, even though he does not exercise any professional judgment on behalf of the particular client, and does not have a fiduciary or other relationship with the particular client. (f) There is no rational basis for the Appellate Division to distinguish Mr. Brandes from all other persons (including disbarred and suspended lawyers) and to apply a different criteria in determining whether he was practicing law. In creating a separate classification for him alone it denied him the equal protection of the law. The Appellate Division based this classification on the sole fact that he is an expert on New York family law and divorce. The Appellate Division did not apply the criteria it applies to all other persons seeking reinstatement. It had no legitimate reason for this distinction. There is no rational basis for the Appellate Division to apply this criterion to Mr. Brandes alone. Moreover, there was no legitimate governmental objective served by applying this criterion to Mr. Brandes alone. The objective of Judiciary Law § 90(2) and Judiciary Law § 478 is to protect the public from 8 those persons who are not licensed to practice law - not to protect attorneys from law clerks, law professors, legal assistants, paralegals, disbarred and suspended lawyers or expert disbarred lawyers who do para-legal work. There is no legitimate reason to prevent a non-lawyer, a disbarred lawyer or a disbarred lawyer who is an expert from giving advice to a lawyer. (g) The Appellate Division applied no consistent legal analysis in its determination as to what constitutes the “practice of law.” The Court applied an exception to a rule without articulating the rule. The Appellate Division has re- defined the “practice of law” by a definition that does not apply to everyone. The definition of the “practice of law” must be uniform. The definition of the practice of law should apply to everyone regardless of who you are or your circumstances. (h) Courts may not make substantive law by promulgating court rules, and the rules they promulgate must be consistent with existing law. The provision in 22 NYCRR 691.10 (a) that disbarred attorneys-at-law shall “comply fully and completely” with the … spirit of Judiciary Law §478 is not consistent with, and adds a restriction that does not appear in Judiciary Law §478. The rule also abrogates the rights of persons which are conferred upon them by statute. The Legislature has provided 9 that disbarred attorneys must comply with Judiciary Law §478. The Appellate Division has added the provision that disbarred attorneys must comply with the “spirit” of Judiciary Law §478, a vague, undefined, and arbitrary term. A disbarred attorney can forfeit the right to reinstatement by failing to adhere to this rule which has no recognized or defined standard. Moreover, this rule imposes additional procedural hurdles that impair Mr. Brandes’ statutory remedies with regard to reinstatement. Under established principals of statutory construction it must be disregarded. (I) There is no case authority, rule of evidence or statute that we are aware of that requires someone to comply with the “spirit of the law,” or has defined the term “spirit of the law”, or construed this term in the context of Judiciary Law § 478. If it was the intention of the creators of 22 NYCRR 691.10(a) that disbarred and suspended lawyers must follow a standard instead of its literal content, then they would have defined the standard. The language of 22 NYCRR 691.10(a) does not give any indication of what the draftsman of the rule intended. A reasonable attorney, after reading the rule and then Judiciary Law §478, would have no notice of what conduct is proscribed. Notably, there is no case law construing this provision to guide a disbarred attorney, nor any published commentary. Assuming, for purposes of argument that there was a 10 standard, it would contain requirements that are in addition to Judiciary Law § 478, while also yielding to the statute. 22 NYCRR 691.10(a) provides that Mr. Brandes shall not violate the spirit of Judiciary Law §478, but does not define exactly what the “spirit” is or set forth any criteria to determine when it is violated. As such, its enforcement denies him due process of law. (j) Judiciary Law § 478 is a criminal statute whose sole purpose is to deter persons who are not licensed attorneys from engaging in the “practice of law” in New York. Its objective is to protect the public, not lawyers. Since Mr. Brandes did not violate the statute by engaging in the “practice of law”, he did not violate the “spirit” of Judiciary Law §478. II. Relevant Statutes, Orders and Appellate Division Rules Judiciary Law § 90 provides, in relevant part: It shall be the duty of the appellate division to insert in each order of suspension or removal hereafter rendered a provision which shall command the attorney and counsellor-at-law thereafter to desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another. In addition it shall forbid the performance of any of the following acts, to wit: a. The appearance as an attorney or counsellor-at-law before any court, judge, justice, board, commission or other public authority. b. The giving to another of an opinion as to the law or its application, or of any advice in relation thereto. 11 The Order of disbarment provides, in relevant part: Ordered that pursuant to Judiciary Law § 90, effective immediately, Joel R. Brandes is commanded to desist and refrain from (1) practicing law in any form… [and], (3) giving to another an opinion as to the law or its application or any advice in relation thereto…. Judiciary Law § 478 provides, in relevant part: It shall be unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at- law for a person other than himself or herself in a court of record in this state, … without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath. 22 NYCRR 691.10(a) provides, in relevant part: (a) Compliance with Judiciary Law. Disbarred, suspended or resigned attorneys-at-law shall comply fully and completely with the letter and spirit of sections 478, 479, 484 and 486 of the Judiciary Law relating to practicing as attorneys-at-law without being admitted and registered…. III. Questions Presented 1. Does the performance of “para-legal” work for a New York attorney, by a person who is not a member of the New York Bar, constitute the practice of law? 2. Does the performance of “para-legal” work for a New York attorney, by a person who is not a member of the New York Bar, but who is an expert in a particular field of law (and is more knowledgeable than the attorney for whom he is doing work), constitute the practice of law? 12 3. Does the performance of “para-legal” work for a New York attorney, by a disbarred attorney, constitute the practice of law? 4. Does the performance of “para-legal” work for a New York attorney, by a disbarred lawyer, who is an expert in a particular field of law (and is more knowledgeable than the attorney for whom he is doing work), constitute the practice of law? 5. Can a disbarred lawyer perform that same legal research, brief writing and document drafting work for an attorney as a nonlawyer who has never practiced law? 6. Did the Appellate Division err as a matter of law in failing to base its determination that Mr. Brandes engaged in the “practice of law”, and thereby violated the order of disbarment, in accordance with the precedent established by the Court of Appeals in Matter of Rowe, 80 N.Y.2d 336, 604 N.E.2d 728, 590 N.Y.S.2d 179 (1992); Matter of New York County Lawyers’ Assn. v Dacey, 28 AD2d 161, 173-174 [Stevens, J. P., dissenting], revd on dissenting opn below 21 NY2d 694 and El Gemayel v. Seaman, 72 N.Y.2d 701, 705-06, 533 N.E.2d 245, 247-48 (1988)? 7. When the Committee on Character and Fitness and its subcommittee both recommend that a disbarred attorney be reinstated, and the only articulated ground for denial of his 13 motion for reinstatement by the Appellate Division is that he engaged in the unauthorized practice of law, was it a denial of due process or equal protection, or is it impermissibly arbitrary and capricious for the Appellate Division to utilize a different test for disbarred lawyers based solely on their status, and a separate test based upon their intelligence, rather than evaluating the same conduct that would be prohibited or permissible for other non-lawyers who have never been licensed to practice law in the first place? 8. When the Appellate Division holds that a disbarred lawyer who has expertise in his field cannot do paralegal work for an attorney who is on the same level of expertise, but, by implication holds that a disbarred lawyer who is of average or below average competence can do paralegal work for any lawyer, is there a denial of equal protection of the law and double standard for determining what conduct constitutes the unauthorized practice of law? 9. Did the Appellate Division violate Mr. Brandes’ right to equal protection under the Fourteenth Amendment to the United States Constitution and Article I, § 11 of the New York State Constitution by failing to apply to Mr. Brandes the same law that is applied to other disbarred attorneys seeking reinstatement in this State? 14 10. Did the Appellate Division violate Mr. Brandes’ right to equal protection under the Fourteenth Amendment to the United States Constitution and Article I, § 11 of the New York State Constitution by failing to apply to Mr. Brandes the same law that is applied to all other persons to determine if they engaged in the practice of law in this State? 11. Did the Appellate Division have a rational basis and legitimate governmental purpose for determining that Mr. Brandes should be treated differently than other disbarred attorneys, and other persons, in construing the meaning of the term “practice of law”? 12. Did the Appellate Division violate Mr. Brandes’ right to due process under the Fourteenth Amendment to the United States Constitution and Article 1, Section 6 of the New York State Constitution, and his rights under the First Amendment to the United States Constitution? 13. Was the provision in 22 NYCRR 691.10(a) that disbarred attorneys-at-law shall “comply fully and completely” with the “spirit” of Judiciary Law §478 properly promulgated by the Appellate Division pursuant to its rule making authority; is it in contravention of or in addition to existing law; and did its application to Mr. Brandes, requiring him to comply fully and 15 completely with the “spirit” of Judiciary Law §478 deprive him of due process of law? IV. History and Nature of the Case Having been involved in his own highly emotional contested divorce, Joel Brandes made serious mistakes of judgment which resulted in his disbarment by order of the Appellate Division, Second Department dated April 8, 2002. (A.5-10). Prior to being disbarred Mr. Brandes concentrated his practice on matrimonial law. He was an author of Law and the Family New York, Second Edition (Thomson-West), and Law and the Family New York Forms. Since 1986 he authored its annual supplements. (A.31-33). In December 2002, Mr. Brandes moved to the State of Florida 3 and became a resident of the state. On August 1, 2003, at the suggestion of a friend, Judge George B. Daniels of the United States District Court for the Southern District of New York, Mr. 3 Mr. Brandes home state of Florida allows disbarred attorneys to do para- legal work. See Florida Bar Rule 3-6. Florida Bar Rule 10-2.1 (b) defines para-legal as follows: (b) Paralegal or Legal Assistant. A paralegal or legal assistant is a person qualified by education, training, or work experience, who works under the supervision of a member of The Florida Bar and who performs specifically delegated substantive legal work for which a member of The Florida Bar is responsible. 16 Brandes went into the legal research business. He formed Joel R. Brandes Consulting Services Inc., a Florida Corporation, which he operated from his home in Fort Lauderdale, Florida. The shareholders and only employees of this Florida Corporation are himself and his wife Elizabeth. Through Joel R. Brandes Consulting Services, Inc., Mr. Brandes offered para-legal services to attorneys via the internet, assisting lawyers with legal research and drafting, valuation reports and custody evaluations. While assisting attorneys, he never had direct contact with any clients of the attorneys. Prior to engaging in this business he researched the law thoroughly to ascertain, if, as a disbarred attorney, he was permitted to perform paralegal services for attorneys. At that time, and prior to the decision of the Appellate Division, no statute, rule or case law prohibited him from engaging in paralegal work for New York attorneys from his home in Florida (A. 17-18; 26-27; 90-92). Mr. Brandes did not work in New York and has not worked in New York in any capacity since he was disbarred. Moreover, he had not been in a law office in New York (other than in his attorney’s office) since he moved to Florida. (A. 17-18; 26-27; 90-92). 17 In 2009, Mr. Brandes filed a petition for reinstatement. (A.11-19) By Order dated November 5, 2009 the Appellate Division denied his application. (A.20) In 2010 Mr. Brandes filed a second petition for reinstatement. (A.22-28) By order of the Appellate Division dated April 26, 2011 the Committee on Character and Fitness was directed to investigate and report on his current fitness to be an attorney. (A.29-30) The subcommittee appointed by the Committee on Character and Fitness held a hearing on December 2, 2011. (A.31-61) Mr. Brandes’ testimony at the December 2, 2011 subcommittee hearing, in response to questions posed by the subcommittee members, contained only vague generalizations about the kind of work he did and the attorneys who employed him. He never referred to a specific job he did for a specific lawyer. Mr. Brandes testified that when lawyers called he would refer them to “Law and the Family New York.” He said he did paralegal work for the attorney. He explained in response to a question that a lawyer would call him and ask him to research a particular issue. He would send them an engagement agreement. Paralegal work meant drafting a motion, doing a research project and giving them a memorandum of law. They would send him documents as to what they wanted him to do and he would draft it and email it back to 18 them. Normally, he would never hear from them again. He never saw the final drafts. When he sent what he drafted he would tell them he did not proof read it and that it was a draft. Normally, they would send him an email and tell him what the task is and tell him they want him to draft something for them and email it back to them. He spoke to the attorney rarely on the phone. He did piecework and never heard from them again. He gave them raw research and they did what they wanted with it. He said he did not exercise any judgment with respect to this. He acted under the supervision of the lawyer. His work product went back to the lawyer. (A.53-60) In a report dated March 7, 2012 the subcommittee appointed by the Committee on Character and Fitness found, that Mr. Brandes possessed the character and fitness to be reinstated and complied with the provisions of the order disbarring him. Significantly, it concluded that: “Since Petitioner never spoke to or met a client and only dealt with attorneys, the Petitioner did not violate any New York Disciplinary Rules applicable to disbarred attorneys.” (A.62) Nevertheless, the majority of the full Committee on Character and Fitness recommended that Mr. Brandes not be reinstated. The sole reason for the recommendation of the majority of the full Committee was: "the majority was concerned 19 about petitioner’s offer of virtual paralegal services via the Internet on his website, and his failure to specifically state that he was not an attorney and given (sic) his past disciplinary history of concealing from opposing counsel his representation of his former wife." (A.63) Mr. Brandes motion for an order reinstating him notwithstanding the recommendation of the majority of the Committee on Character and Fitness, and in accordance with the recommendation of the subcommittee appointed by the Committee on Character and Fitness, was denied by order of the Appellate Division, dated December 17, 2012. (A.83) In January 2013 Mr. Brandes changed his website to prominently state that he was not a lawyer, did not do legal work and only worked for attorneys. In August 2013 Mr. Brandes removed all references to paralegal services from his website. (A.76-77) In November 2013, Mr. Brandes filed a third petition for reinstatement with the Appellate Division, Second Department.(A.66-75) By decision and order on motion of the Appellate Division dated April 8, 2014, his third motion for reinstatement was held in abeyance and the matter was referred to the Committee on Character and Fitness to investigate and report on his current fitness to practice law, “including but 20 not limited to, his future intentions with regard to the paralegal services portion of his Internet business.” (A.78-79) The subcommittee appointed by the Committee on Character and Fitness, held a hearing on June 9, 2014. Mr. Brandes June 9, 2014 testimony before the subcommittee with regard to his paralegal work was essentially the same as his prior testimony before the first subcommittee, limited to vague generalizations (A.80-96) Mr. Brandes testified that he never actually worked as a paralegal, referring to the ABA definition of paralegal. He reiterated that all he did for lawyers was “legal research” and then “draft something for them” (A.80) He never worked in a law office, never had contact with a client, never spoke to a secretary and did almost everything by email. (A.81) He gave a few examples of what he did, testifying that a lawyer would ask him to research a legal issue involved in a case, he researched the issue, and drafted a memo or brief and emailed it to the lawyer. (A.82-84) Whenever he researched an issue, he first went to Law and the Family New York. (A.84) Mr. Brandes never testified that he “would guide the attorneys to the applicable statutes and precedent cases, and offer my past experiences.” He never used any of those words. He never used the words “difficult case”. He did respond 21 affirmatively when the subcommittee chair said: “...you are an expert in this field.... That’s a recognized fact. ...People are coming to you because you have more expertise than they do, when it comes to the law.” However, he never testified that he was “vastly more experienced” than the attorneys for whom [he] was performing the services.” (A.95-96). In fact, no evidence was presented at either subcommittee hearing about the attorneys for whom Mr. Brandes worked, their intelligence, or a specific case on which he performed services. For that reason the conclusions in the decision of the Appellate Division are not based upon any specific findings of fact. In a report dated September 9, 2014 (which incorporated the March 7, 2012 report of the prior subcommittee) the Subcommittee found that Mr. Brandes possessed the Character and Fitness to practice law. The full Committee on Character and Fitness recommended to the Appellate Division that Mr. Brandes be reinstated (A.106). Nevertheless, by decision and order of the Appellate Division dated June 3, 2015, Mr. Brandes’ application for reinstatement was denied. (A.3-4) Decision and Order of the Appellate Division The decision and order of the Appellate Division states: “Mr. Brandes engaged in the unauthorized practice of law during the period of his disbarment when he provided paralegal services via the Internet. Mr. Brandes represents that he has since ceased this portion of his Internet business because it 22 proved unprofitable. Mr. Brandes’s provision of such services through his corporation, Joel R. Brandes Consulting Services, Inc., during the period he did operate this portion of his business, violated Judiciary Law § 90(2) and this Court’s order of disbarment, which, inter alia, directed that Mr. Brandes “desist and refrain from . . . practicing law in any form, [and] giving to another an opinion as to the law or its application or any advice in relation thereto.” “The practice of law involves the rendering of legal advice and opinions directed to particular clients” (Matter of Rowe, 80 NY2d 336, 341-342). Under the guise of being a paralegal, Mr. Brandes, a noted authority and expert on New York family law and divorce (see Brandes, Law and the Family New York [2d ed rev 1997] and cumulative supplements), for instance, would give advice to an attorney, who had a difficult case. Mr. Brandes would speak to the attorney over the telephone or by e-mail regarding a particular aspect of the difficult case. Upon presentation of the particulars of the case or problem, Mr. Brandes would guide the attorney to the applicable statutes and precedent cases, and offer his past experience. Such rendering of legal advice or opinion constitutes the practice of law, since Mr. Brandes in so doing, exercised professional judgment directed at the legal problem of a particular client, notwithstanding the fact that Mr. Brandes had no direct contact or relationship with the client. In many other instances, Mr. Brandes contracted to draft briefs and other litigation papers for other attorneys. Given the fact that Mr. Brandes was vastly more experienced in matrimonial and domestic relations matters than the attorneys for whom he was performing services, the provision of such services can be deemed to be performing legal services for a client, namely, the attorney for whom he drafted the brief and documents. Such giving of advice and performance of legal services certainly violated the spirit, if not the letter, of Judiciary Law § 478 (see 22 NYCRR 691.10 (a)). “Accordingly, we find that Mr. Brandes does not demonstrate the requisite fitness and character to practice law.“(A.3-4) The Appellate Division apparently obtained the facts it relied upon from the September 9, 2014 report of the subcommittee appointed by the Committee of Character and 23 Fitness, and not from the transcripts of Mr. Brandes hearings. The operative facts upon which it based its decision were not drawn from any testimony or documents provided by Mr. Brandes, but were drawn from erroneous assumptions by the subcommittee of the Character Committee. For example, Mr. Brandes did not testify that: (a) he gave advice to a specifically named attorney, who had a difficult case. (b) he spoke to a specifically named attorney over the telephone or by e-mail regarding a particular aspect of a specific case. (c) he was presented with the particulars of a case or problem by a specifically named attorney; (d) “he would guide the attorney to the applicable statutes and precedent cases, and offer his past experience;” or (e) he “was vastly more experienced in matrimonial and domestic relations matters than the attorneys for whom he was performing services.” V. Jurisdiction The Court of Appeals has jurisdiction over the appeal in this disciplinary matter by virtue of the provisions of 24 Judiciary Law § 90(8), Article VI, Section 3 of the New York Constitution, and CPLR 5602(a) (1) (i). Judiciary Law §90(8) provides: 8. Any petitioner or respondent in a disciplinary proceeding against an attorney or counsellor-at-law under this section, including a bar association or any other corporation or association, shall have the right to appeal to the court of appeals from a final order of any appellate division in such proceeding upon questions of law involved therein, subject to the limitations prescribed by section three of article six of the constitution of this state. Article VI, Section 3 of the New York Constitution, insofar as relevant, limits the jurisdiction of the Court of Appeals to review of questions of law. This appeal involves only questions of law. Article VI, Section 3 of the New York Constitution provides, in relevant part: a. The jurisdiction of the court of appeals shall be limited to the review of questions of law.... Article VI, Section 3 of the New York Constitution also provides, in relevant part: b. Appeals to the court of appeals may be taken in the classes of cases hereafter enumerated in this section; In civil cases and proceedings as follows: (6) From a judgment or order entered upon the decision of an appellate division of the supreme court which finally determines an action or special proceeding but which is not appealable under paragraph (1) of this subdivision where the appellate division or the court of appeals shall certify that in its opinion a question of law is involved which ought to be 25 reviewed by the court of appeals. Such an appeal may be allowed upon application (a) to the appellate division, and in case of refusal, to the court of appeals, or (b) directly to the court of appeals. Such an appeal shall be allowed when required in the interest of substantial justice. Thus, this Court has jurisdiction to review the questions of law involved, and properly granted appellant leave to appeal because questions of law is involved which ought to be reviewed by the court of appeals. POINT I IN TREATING MR. BRANDES DIFFERENTLY THAN ALL OTHER PERSONS SEEKING REINSTATEMENT TO THE BAR, THE APPELLATE DECISION DENIED MR. BRANDES THE EQUAL PROTECTION AND DUE PROCESS OF LAW Article I, §11 of the New York State Constitution provides: "No person shall be denied the equal protection of the laws of this state or any subdivision thereof." The Fourteenth Amendment to the United States Constitution provides in relevant part that "[N]o State shall ... deny to any person within its jurisdiction the equal protections of the laws." This Court has stated that the state and federal guarantees of equal protection are coextensive. Under 21, Catholic Home Bureau for Dependent Children v. City of New York, 65 N.Y.2d 344, 360 n.6, 492 N.Y.S.2d 522, 528 n.6 (1985); Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 530, 87 N.E.2d 541 [1949], 26 cert. denied 339 U.S. 981, 70 S.Ct. 1019, 94 L.Ed. 1385 [1950]. The Constitution commands that “persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 [1985]; see Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d 617, 631, 814 N.E.2d 410 [2004]. Unless a suspect class or fundamental right is involved, which is not the case here, classifications that create distinctions between similarly-situated individuals will be upheld if they are rationally related to a legitimate government interest. Walton v. New York State Dep’t of Corr. Servs., 13 N.Y.3d 475, 492, 921 N.E.2d 145, 156 (2009) The rule governing the reinstatement of disbarred lawyers in the Second Department, (22 NYCRR 691.11), requires that a disbarred lawyer wait seven years from the effective date of his or her disbarment order before filing an application for reinstatement. The disbarred lawyer’s reinstatement application may then be granted "only" if the applicant shows by clear and convincing evidence that he or she complied with the disbarment order, "possesses the character and general fitness to practice law," and passed the MPRE. In those circumstances, the Second Department "will" refer the application to the Character 27 Committee or to a judge or referee "for a report" prior to granting an application.4 Mr. Brandes therefore must have made the necessary prima facie showing in his application that he was entitled to be reinstated absent contrary evidence that his character was deficient (or contrary evidence that he did not pass the MPRE, did not wait seven years to apply for reinstatement, or did not comply with his disbarment order). A state, or one of its subdivisions, denies equal protection when it treats similarly situated persons differently under the law either in the grant of a preference or the imposition of a burden. Abrams v. Bronstein, 33 N.Y.2d 488, 492, 354 N.Y.S.2d 926, 930 (1974). The disparate application of the law by the Second Department in holding that he was engaged in the practice of law by virtue of his expertise alone discriminated against Mr. Brandes by depriving him of the due process provided to similarly situated applicants for reinstatement. This difference in treatment is subject to review under the two-pronged "rational basis" test. First, "the challenged action must have a legitimate purpose" and second, "the challenged 4 In Matter of Citrin, 94 N.Y.2d 459 (2000) this Court observed that a report is sent to the court in every instance in which the Second Department is considering the reinstatement of an applicant. 28 classification [must] have a fair and substantial relation to the object of the legislation." Weissman v. Evans, 56 N.Y.2d 458, 465, 452 N.Y.S.2d 864, 867 (1982); Abercock v. County of Nassau, 213 A.D.2d 691, 624 N.Y.S.2d 446, 447 (2nd Dep’t 1995); Manes v. Goldin, 400 F.Supp. 23, 29 (E.D.N.Y. 1975), aff’d, 423 U.S. 1068, 96 S. Ct.851, 47 L.Ed.2d 80 (1976). The classifications created by the Appellate Division, treating disbarred attorneys seeking reinstatement and Mr. Brandes differently - and the resulting discrimination against him cannot pass muster under this test. No legitimate purpose is furthered by the distinction in the Appellate Divisions’ disparate application of substantive rules of law. Nor do the differing levels of due process for disbarred attorneys, as compared to Mr. Brandes, bear a fair and substantial relationship -- or any rational relationship -- to any conceivably legitimate state purpose. Mr. Brandes was ordered by the order of disbarment, inter alia, to “desist and refrain from (1) practicing law in any form… [and] (3) giving to another an opinion as to the law or its application or any advice in relation thereto…” and was directed by 22 NYCRR 699.10(a) to comply with to comply fully and completely with letter and the “spirit” of Judiciary Law §478, a criminal statute. 29 The purpose of Judiciary Law §478 is not to protect attorneys. It is to protect the public. In People v Black, 56 Misc. 516 the Court observed that: “Section 271 of the Penal Law follows section 270 under article 24 (entitled ‘Attorneys’) and is supplemented by section 272, which provides penalties for violation. The clear and only permissible intent of the Legislature was to protect the general public from exploitation at the hands of unscrupulous or unskilled persons posing as lawyers, or unauthorized persons demanding or receiving compensation for purely legal service. The protection of the legal profession could not have been attempted, and, if attempted or intended, is clearly invalid. Penal statutes may not be enacted for the protection or furtherance of the interests of any particular class or special group. The legal profession does not require and should resent any such artificial aid.” This Court has held on several occasions that the purpose of Judiciary Law §478 is to protect citizens against dangers of legal representation and advice given by persons not trained, examined and licensed for such work, whether they be laymen or lawyers from other jurisdictions. Spivak v. Sachs, 16 N.Y.2d 163, 166-67, 211 N.E.2d 329, 330 (1965); See also Jemzura v. McCue (3 Dept. 1974) 45 A.D.2d 797, 357 N.Y.S.2d 167; Stokes v. Vill. of Wurtsboro, 123 Misc. 2d 694, 695, 474 N.Y.S.2d 660 30 (Sup. Ct. 1984). In Matter of New York County Lawyers’ Assn. v Dacey, 28 AD2d 161, 173-174 [Stevens, J. P., dissenting], revd on dissenting opn below 21 NY2d 694) Justice Stevens opinion pointed out that rules for the admission of persons to the practice of law, and rules or canons regulating their conduct thereafter, are “to protect the public from ignorance, inexperience and unscrupulousness” (citation omitted). The prohibition against the unauthorized practice of law has a like objective. In El Gemayel v. Seaman, 72 N.Y.2d 701, 705-06, 533 N.E.2d 245, 247-48 (1988) this Court construed Judiciary Law § 478 pointing out that its purpose is to protect the public in this State from “the dangers of legal representation and advice given by persons not trained, examined and licensed for such work, whether they be laymen or lawyers from other jurisdictions” It noted that violation of Judiciary Law § 478 is a misdemeanor (Judiciary Law § 485) and its provisions also may be enforced in civil actions by the Attorney–General or a bar association formed in accordance with the laws of this State (Judiciary Law § 476–a). It is settled that the “law” contemplated by Judiciary Law § 478 includes foreign as well as New York law. It held that the “practice” of law reserved to duly licensed New York attorneys includes the rendering of legal advice as well as appearing in court and holding oneself out to be a lawyer. 31 Additionally, such advice or services must be rendered to particular clients. Although New York has a legitimate interest in ensuring that only attorneys with the requisite character and fitness to practice law are readmitted to practice in this state, that interest is not furthered by a system in which some attorneys are treated differently and have an additional standard for reinstatement based solely on their intelligence and no other criteria. This irrational distinction discriminates against Mr. Brandes. The inconsistency in the reinstatement procedures which the Appellate Division applied to Mr. Brandes discriminated against him by providing him with less due process protection than his similarly situated counterparts who are not experts (and are not more knowledgeable than the attorneys for whom they did the work). For these reasons, the Appellate Division violated Mr. Brandes state and federal constitutional right to due process and equal protection under the laws. 32 POINT II THE APPELLATE DIVISION ABUSED ITS DISCRETION AS A MATTER OF LAW AND ACTED IN AN ARBITRARY AND CAPRICIOUS MANNER WHEN IT FAILED TO REINSTATE MR. BRANDES IN THE ABSENCE OF ANY EVIDENCE OF BAD PERSONAL CHARACTER OR LACK OF FITNESS TO PRACTICE LAW. States cannot act arbitrarily or capriciously when regulating professional licenses. N.Y. State Trawlers Assn. v. Jorling, 16 F.3d 1303 (2d Cir. 1994). It follows, therefore, that Mr. Brandes’ petition would be granted if he (or any other disbarred attorney) provided clear and convincing prima facie proof which satisfied the Second Department’s conditions for reinstatement -- unless, of course, other evidence contradicted that proof. Mr. Brandes unquestionably provided such proof here as he was recommended for reinstatement by the Committee on Character and Fitness. There was also no contrary proof submitted to contradict his claim of good moral character and fitness to practice. Accordingly, under the circumstances presented, Mr. Brandes should have been reinstated. The law requires that Mr. Brandes’ application for reinstatement be treated fairly -- not arbitrarily or capriciously -- by the Second Department. Concededly, an administrative determination will not ordinarily be overturned so long as there exists a rational basis and substantial evidence in support of the challenged finding. Purdy v. Kreisberg, 47 N.Y. 2d 354, 418 N.Y.S. 2d 329 (1979). Mr. 33 Brandes’ application, however, was so compelling that in denying it the Second Department acted arbitrarily and capriciously. Aside from Mr. Brandes, no disbarred attorney has ever been denied reinstatement because he was an expert in a particular field of law,5 was more knowledgeable than other attorneys or because he did paralegal work for an attorney outside of the law office and had no client contact. The record shows that Mr. Brandes acted in good faith embarking on a career doing paralegal work, using the only skills he has, continuing that career based upon the actions of the Committee on Character and Fitness and the inaction of the Appellate Division, over a period of 11 years. He fully complied with the Court’s order striking his name from the roll of attorneys, was gainfully employed since his disbarment and took full responsibility and expressed sincere remorse for the conduct for which he was disbarred. Mr. Brandes has been without his law license for more than thirteen years. There is no evidence of any sort, let alone substantial evidence, to support the Second Department’s bare and unsupported conclusion that he currently lacks the requisite character and fitness to resume the practice of law – other than 5 Mr. Brandes continues to earn his living writing the updates to Law and the Family New York for Thomson Reuters Westlaw, as permitted by this Court’s established precedent. 34 its determination that he was practicing law by performing (in the State of Florida) the exact same services that a para-legal, law clerk, legal assistant, law professor or disbarred attorney performs for an attorney. Mr. Brandes satisfied every requirement set forth in the Second Department’s own reinstatement rule, and thus had a protected property interest in recovering his law license. He was treated different by the Appellate Division’s application of a different rule of law to him with regard to what constitutes the ‘practice of law”, and denied him the due process to which he was entitled. He was also denied his right to equal protection under the law because the law applied to him by the Second Department was different than the law applied to all other disbarred or suspended lawyers, and because there is no rational reason for the disparity. Moreover, it was arbitrary and capricious for the Second Department to deny Mr. Brandes’ reinstatement application even though he established by clear and convincing evidence that he met all the requirements for reinstatement and possessed the character and fitness to practice law. 35 POINT III THE APPELLATE DIVISION MISCONSTRUED AND MISAPPLIED ESTABLISHED PRECEDENT IN HOLDING THAT MR. BRANDES ENGAGED IN THE PRACTICE OF LAW It is submitted that the Appellate Division misconstrued and misapplied legal precedent established by this court in finding that Mr. Brandes’ giving of advice and drafting of briefs and other litigation papers for attorneys constituted the unauthorized practice of law. Defining the practice of law is a slippery, and admittedly daunting undertaking. New York case law dealing with this issue is sparse. The Appellate Division held that Mr. Brandes violated subdivisions (1) and (3) of the order of disbarment, which provided: “ORDERED that pursuant to Judiciary Law § 90, effective immediately, Joel R. Brandes is commanded to desist and refrain from (l) practicing law in any form… [and] (3) giving to another an opinion as to the law or its application or any advice in relation thereto…” This conclusion was contrary to precedent established by this Court in Matter of Rowe, 80 N.Y.2d 336, 604 N.E.2d 728, 590 N.Y.S.2d 179 (1992) (“Rowe”), which was quoted, only in part, by the Appellate Division,, and Matter of New York County Lawyers’ Assn. v Dacey, 28 AD2d 161, 173-174 [Stevens, J. P., 36 dissenting], revd on dissenting opn below 21 NY2d 694) Dacey”). It is submitted that the terms “practice of law in any form“ and the term “the giving to another an opinion as to the law or …any advice in relation thereto” had to be construed in light the objectives of the statute, and rules established by this Court in Rowe, Dacey and their progeny. The Court of Appeals held in Rowe that an article published by Mr. Rowe, a suspended attorney, did not violate subdivision (1) of an order identical to the one in this case, stating: “The practice of law involves the rendering of legal advice and opinions directed to particular clients.” It is clear from the facts of Rowe that the “particular person” the Court was referring to was a member of the public – not an attorney. In Rowe, the Appellate Division concluded that Mr. Rowe’s publication violated subdivision (3) of its suspension order because the article “offered advice to readers on the significance and effect of court decisions concerning the legal rights of psychiatric patients who refused treatment. The Court of Appeals held that as so applied, the Court’s order violated Rowe’s constitutional right to speak freely. It held that courts may, in the public interest, prohibit attorneys from practicing law and that may incidentally affect the attorney’s constitutional right to free speech by forbidding the giving of 37 advice to clients. However, where the individual is not practicing law, (referring to subdivision (1)) and “does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice…”, and “impermissibly interferes with that individual’s First Amendment rights.” It concluded that Mr. Rowe exercised his right to free speech by publishing his article. The Appellate Division, by applying its order to foreclose him from doing so, improperly prohibited him from engaging in endeavors which he could undertake had he never been admitted to the Bar in the first place. It is clear from the circumstances in Rowe that the Court of Appeals was referring to the public interest. Its’ reference to the “giving advice to clients” referred to the public - not attorneys. This conclusion is supported by the decision in Matter of New York County Lawyers’ Assn. v Dacey, 28 AD2d 161, 173-174 [Stevens, J. P., dissenting], revd on dissenting opn below 21 NY2d 694, which preceded it, and which it cited in the leading sentence in its decision in Rowe. Dacey wrote a book titled How to Avoid Probate, which was sold to the public at large. The book contained legal forms and gave instructions by Dacey as to how to fill out the forms. 38 Dacey and his publisher were held in contempt for engaging in the practice of law. In reversing the order of the Appellate Division, which held that this amounted to the practice of law, Justice Stevens opinion, which was adopted by the Court of Appeals, observed that there was “… no personal contact or relationship with a particular individual, Nor does there exist that relation of confidence and trust so necessary to the status of attorney and client. This is the essential of legal practice -- the representation and the advising of a particular person in a particular situation." It is clear from Justice Steven’s opinion that he was referring to a member of the public, a specific person in a particular situation specific to that person – not to an attorney representing a person with a specific situation specific to that person. Justice Steven’s opinion pointed out that rules for the admission of persons to the practice of law, and rules or canons regulating their conduct thereafter, are to protect the public from ignorance, inexperience and unscrupulousness. The prohibition against the unauthorized practice of law has a like objective. In Dacey there was no showing that the book exploited the public or led its members astray improperly or incorrectly. In 39 order to sustain petitioner’s position one had to conclude that the book by its very nature comprised the unauthorized practice of law. Justice Stevens observed that the practice of law “manifestly includes the drafting of many documents which create legal rights. It does not follow, however, that the drafting of all such documents is always the practice of law.” After surveying the case law he found that in all the cases where there was a holding of unlawful practice of law there was” some employment, express or implied, resulting either from contract, designation or assignment.” He concluded that it would seem logical that for one to be guilty of the unauthorized practice of law he must improperly or illegally have created or assumed such a relationship. The Court of Appeals holding in Dacey establishes that (1) the drafting of legal documents is not always the practice of law; (2) for one to be guilty of the unauthorized practice of law he must have established an employer-employee relationship with a client resulting from contract, designation or assignment; and (3) the prohibition against the unauthorized practice of law is to protect the public – not the attorney representing the client. 40 Had the Appellate Division followed the precedent established by this Court in Rowe and Dacey it could not have reached the conclusion that Mr. Brandes engaged in the practice of law and thereby violated the order of disbarment or the spirit of Judiciary Law § 478. The conclusion reached by the Appellate Division is illogical and is contrary to established precedent in New York and every other state. Guiding an attorney to applicable statutes and precedent cases with regard to a particular problem of a particular client of that attorney does not constitute the practice of law. It is the product of legal research. It is what any law clerk may do for a judge, if assigned the task; what any law professor, para-legal, legal assistant or lay person may do for an attorney, if assigned that task. The giving of such advice to an attorney representing a particular client does not involve the exercise of professional judgment by Mr. Brandes on behalf of that particular client (with regard to that client’s particular problem), although it may involve the attorney’s exercise of judgment with regard to what advice to give and what advice not to give his client. See Rule 5.8(a) of the Rules of Professional Conduct. The term “professional judgment” appears throughout the Rules of Professional Conduct with regard to the obligations of a lawyer. See Rule 1.2 (e), Rule 1.7. (a), Rule 41 1.8. (a), Rule 1.8 (f), Rule 5.4 (c), Rule 5.4 (d) (3), Rule 5.7. (b), and Rule 7.2 (b). The lawyer is not the client. Black’s Law Dictionary (10th ed. 2014), defines client as follows: client n. (14c) A person or entity that employs a professional for advice or help in that professional’s line of work; esp., one in whose interest a lawyer acts, as by giving advice, appearing in court, or handling a matter. — cliental, adj. Mr. Brandes may be an expert, but he never acted as an attorney. He never exercised professional judgment on behalf of a client of an attorney. He performed tasks for attorneys. The attorney is the person who is required to exercise his professional judgment on behalf of his client. The Rules of Professional Conduct require the lawyer to remain completely responsible for his or her own independent professional judgment. They prohibit the lawyer from allowing any other person to direct or regulate the lawyer’s professional judgment in rendering such legal services. Mr. Brandes did not exercise any judgment “[b]y guiding the attorney with regard to the applicable statutes and precedent cases, and offering past experiences.” He merely provided information requested by a lawyer in representing the lawyer’s client. The determination as to whether or not to use the information provided by Mr. Brandes 42 was the sole province and obligation of the attorney under the Rules of Professional Conduct. The conclusion of the Appellate Division that “drafting briefs and other litigation papers for other attorneys” constituted the practice of law because Mr. Brandes was “vastly more experienced in matrimonial and domestic relations matters than the attorneys for whom he was performing services”, and therefore he was performing legal services for a client – the attorney- is illogical, not supported by any precedent in the New York or any other state (and not supported by any evidence). Implicit in the decision is that if Mr. Brandes did not have special skills and experience, and was not more knowledgeable than the attorneys he served, he would have been deemed to have properly acted as a paralegal, would not have unlawfully practiced law, would not have needed a license and could assist attorneys in their practice, just like any other paralegal. Drafting briefs and documents for an attorney has never been held by any court to constitute the practice of law. It is illogical to conclude that the intelligence of the person drafting those documents makes drafting briefs and documents the practice of law. A lay person may prepare legal papers for an attorney. No court has ever held that a disbarred attorney may not draft briefs and legal documents for an attorney. 43 In Matter of Marino, 20 N.Y.2d 176, 179, 229 N.E.2d 23, 25 (1967) where the attorney’s lay investigator, inter alia, communicated with clients after clients had retained the attorneys, obtained retainer agreements, adverse party statements and prepared guardian ad litem forms for execution, this Court held that: “A lay person, as, for example, a stenographer in a law office, may prepare legal papers provided that they are approved by licensed attorneys before they are utilized, and this applied to whatever guardian ad litem forms this investigator prepared, or had executed, and likewise to the percentage fee agreements, which came to the attention of appellants and were approved by them before taking effect. “ The Appellate Division found support for its conclusion that Mr. Brandes practiced law upon a single sentence, taken out of context from this Courts’ decision in Matter of Rowe, 80 NY2d 336, 341-342: “The practice of law involves the rendering of legal advice and opinions directed to particular clients.” The Appellate Division reasoned that Mr. Brandes rendered advice, and directed attorneys to relevant opinions, but it ignored the context in which that statement was made by this court. The “particular client” this Court was referring to in Rowe was a member of the public – not an attorney. The Appellate Division did not find that Mr. Brandes exercised professional judgment “on behalf of a” particular client of the attorney who employed 44 him. It found he exercised professional judgment “directed at” …”the legal problem of a particular client.” However, it was not Mr. Brandes particular client. It was the “particular client of the attorney.” In New York there is no single recognized definition of the “practice of law”, although it is prohibited to all but licensed individuals by the Judiciary Law and the Penal Law. However, all authorities agree that lawyers may delegate tasks to non-lawyers to assist them in their representation. The Restatement (Third) of the Law Governing Lawyers (“Restatement”) (2002) describes the scope of a nonlawyer’s role as follows: “For obvious reasons of convenience and better service to clients, lawyers and law firms are empowered to retain nonlawyer personnel to assist firm lawyers in providing legal services to clients. In the course of that work, a nonlawyer may conduct activities that, if conducted by that person alone in representing a client, would constitute unauthorized practice. Those activities are permissible and do not constitute unauthorized practice, so long as the responsible lawyer or law firm provides appropriate supervision (see § 11, Comment e), and so long as the nonlawyer is not permitted to own an interest in the law firm, split fees, or exercise management powers with respect to a law-practice aspect of the firm (see § 10).” Both 45 the American Bar Association and the New York State Bar Association have adopted guidelines for Nonlawyer Personnel. See the ABA Model Guidelines for the Utilization of Paralegal services, footnote 1; See also New York State Bar Association Guidelines for the Utilization by Lawyers of the Service of Legal Assistants, adopted June 1997. Since the 1960’s this Court has defined the practice of law piecemeal. In Spivak v Sachs, 16 NY2d 163, Plaintiff, a California attorney, who was not admitted to the New York Bar, tried to collect a judgment against a defendant for the reasonable value of legal services rendered to defendant in New York City where defendant resided. Defendant appealed, arguing that plaintiff could not recover since what he did amounted to the illegal practice of law in this State in violation of section 270 of the Penal Law. This Court held that this was an illegal transaction and reversed. It explained that: “It is settled that the practice of law forbidden in this State by section 270 of the Penal Law to all but duly licensed New York attorneys includes legal advice and counsel as well as appearing in the courts and holding oneself out as a lawyer (citations omitted)”. 46 In Spivak v Sacks, supra, this Court established that in addition to appearing in court and holding oneself out as a lawyer, the practice of law involves the “giving of advice …to … such citizens…, by laymen or lawyers from other jurisdictions.” “The statute aims to protect our citizens against the dangers of legal representation and advice given by persons not trained, examined and licensed for such citizen’s work, whether they be laymen or lawyers from other jurisdictions.” In holding that Mr. Brandes engaged in the practice of law, the Appellate Division quoted a single sentence from Matter of Rowe, as the authority for its conclusion that Mr. Brandes engaged in the practice of law, but ignored the precedent in Spivak that the practice of law involves the giving of advice to “citizens.” The Appellate Division also ignored that part of the opinion in Matter of Rowe, 80 N.Y.2d 336, 341-42, 604 N.E.2d 728 (1992)” where this Court said, in relevant part: “Where the individual is not practicing law, however, and does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation …impermissibly interferes with that individual’s First Amendment rights.” 47 In Rowe, this Court also established that to be practicing law an individual must purport to be exercising judgment on behalf of a particular individual with whose circumstances he is directly acquainted. There, it cited its earlier opinion in El Gemayel v. Seaman, 72 N.Y.2d 701, 705-707, 533 N.E.2d 245 (1988), where the issue was whether the activities of a Lebanese lawyer who was retained to advise Mary Aoude, a Phoenix, New York resident, on Lebanese law could be considered the “practice” of Lebanese law in New York. The Court stated that: ”The “practice” of law reserved to duly licensed New York attorneys includes the rendering of legal advice as well as appearing in court and holding oneself out to be a lawyer (Spivak v Sachs, 16 NY2d, at 166, supra; People v Alfani, 227 NY 334). Additionally, such advice or services must be rendered to particular clients (Matter of New York County Lawyers Assn. v Dacey, 21 NY2d 694, revg on dissenting opn below 28 AD2d 161 [publishing a book on “How to Avoid Probate” does not constitute the unlawful “practice” of law]) and services rendered to a single client can constitute the practice of law (Spivak v Sachs, 16 NY2d 163, supra).” The Court found plaintiff’s contacts with New York were, as Supreme Court found, incidental and innocuous and concluded that, in the circumstances of that case, phone calls to New York by plaintiff, an attorney licensed in a foreign jurisdiction, to 48 advise his client of the progress of legal proceedings in that foreign jurisdiction, did not, without more, constitute the “practice” of law in this State in violation of Judiciary Law §478 Thus, El Gemayel, supra, established that the practice of law requires that such advice or services “must be rendered to particular clients.” It is obvious from the context in which this statement was written and the facts of this case, that the Court of Appeals was referring to the particular client (Mary Aoude) of this particular Lebanese lawyer (El Gemayel) who lived in Washington D.C. Mr. Brandes performed work for attorneys. The attorneys hired Mr. Brandes. There was no attorney-client relationship between Mr. Brandes and the attorney who hired him. The attorney was his employer. The attorney did not have a particular legal problem. The client of the attorney had the particular legal problem. Mr. Brandes did not purport to give personal advice on a specific problem peculiar to a designated or readily identified person. Mr. Brandes drafted documents and briefs and give advice to a lawyer who had a client with a particular problem. Mr. Brandes did not have a relationship of trust and confidence with a particular client. He did not have a relationship of trust and confidence with the attorney. It is 49 illogical and irrational to conclude that he exercised his judgment on behalf of a particular client of an attorney, without ever having any contact with the client, or even having personal knowledge of the client’s particular situation. POINT IV THE PROVISION IN 22 NYCRR 691.10 (a) THAT DISBARRED ATTORNEYS- AT-LAW SHALL COMPLY FULLY AND COMPLETELY WITH THE “SPIRIT” OF JUDICIARY LAW §478 WAS NOT PROPERLY PROMULGATED BY THE APPELLATE DIVISON PURSUANT TO ITS RULE MAKING AUTHORITY BECAUSE IT IS CONTRARY TO EXISTING LAW, AND ASSUMING IT WAS PROPERLY PROMULGATED, ITS APPLICATION TO MR. BRANDES, REQUIRING HIM TO COMPLY FULLY AND COMPLETELY WITH THE “SPIRIT” OF JUDICIARY LAW §478 DEPRIVED HIM OF DUE PROCESS OF LAW The Appellate Division concluded that Mr. violated the spirit, if not the letter, of Judiciary Law § 478 (see (see 22 NYCRR 691.10[a])]).” Judiciary Law § 478 provides, in relevant part: It shall be unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at- law for a person other than himself or herself in a court of record in this state, or to furnish attorneys or counsel or an attorney and counsel to render legal services, ... without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath. 22 NYCRR 691.10(a) provides, in relevant part: (a) Compliance with Judiciary Law. Disbarred, suspended or resigned attorneys-at-law shall comply fully and completely with the letter and spirit of section[s] 478….” 50 The rule making power of the Appellate Division is limited to an authority to make rules which are not inconsistent with existing statutes. Lambert v. Lambert, 270 N.Y. 422, 1 N.E.2d 833. In A.G. Ship Maint. Corp. v. Lezak, 69 N.Y.2d 1, 5-6, 503 N.E.2d 681, 683 (1986) this court explained that under the State Constitution the authority to regulate practice and procedure in the courts is delegated primarily to the Legislature (N.Y. Const., art. VI, § 30). There are some matters which are not subject to legislative control because they deal with the inherent nature of the judicial function. Generally, however, the Legislature has the power to prescribe rules of practice governing court proceedings, and any rules the courts adopt must be consistent with existing legislation and may be subsequently abrogated by statute (citing Cohn v. Borchard Affiliations, 25 N.Y.2d 237, 303 N.Y.S.2d 633, 250 N.E.2d 690). In addition, court rules must be adopted in accordance with procedures prescribed by the Constitution and statute. N.Y. Const., art. VI, § 30; Judiciary Law § 211[1] [b]. In People v. Ramos, 85 N.Y.2d 678, 687-89, 651 N.E.2d 895, 901 (1995) this Court reiterated that: ‘The Constitution only permits court rule making “consistent with the general practice and procedure as provided by statute or general rules” (N.Y. Const. art. VI, § 30). It pointed out that in McQuigan v. 51 Delaware, Lackawanna & W.R.R. Co., 129 N.Y. 50, 29 N.E. 235 it limited judicial rule-making governing procedures as follows: “The doctrine that courts have an inherent jurisdiction to mold the proceedings to meet new conditions and exigencies, is true, but in a limited sense. They cannot, under cover of procedure or to accomplish justice in a particular case, invade recognized rights of person or property” (id., at 55, 29 N.E. 235). Thus, a court may not significantly affect the legal relationship between litigating parties through the exercise of its rule-making authority (see, Gair v. Peck, 6 N.Y.2d 97, 104, 188 N.Y.S.2d 491, 160 N.E.2d 43). Furthermore no court rule can enlarge or abridge rights conferred by statute (see, Broome County Farmers’ Fire Relief Assn. v. New York State Elec. & Gas Corp., 239 App.Div. 304, 306, 268 N.Y.S. 131; affd. 264 N.Y. 614, 191 N.E. 591), and this bars the imposition of additional procedural hurdles that impair statutory remedies (see, Chase Watch Corp. v. Heins, 284 N.Y. 129, 29 N.E.2d 646; cf., Matter of Brusco v. Braun, 84 N.Y.2d 674, 682, 621 N.Y.S.2d 291, 645 N.E.2d 724).” It is submitted that the provision in 22 NYCRR 691.10 (a) that disbarred attorneys-at-law shall comply fully and completely with the … spirit of section[s] 478 is clearly not “consistent with the general practice and procedure as provided 52 by statute or general rules.” Nor is the rule consistent with existing legislation. It adds an onerous provision that does not appear in Judiciary Law §478, i.e., requiring disbarred attorneys to comply “fully and completely” with the “spirit” of Judiciary Law §478. The Legislature has provided that disbarred attorneys must comply with Judiciary Law §478. The Appellate Division has added the onerous proviso that attorneys must comply with the “spirit” of Judiciary Law §478, a vague, undefined, and arbitrary term. A disbarred attorney can forfeit the right to reinstatement by failing to adhere to this rule which has no recognized or defined standard. Moreover, this rule imposes an additional procedural hurdle that impairs Mr. Brandes statutory remedies under the Judiciary Law with regard to reinstatement, and should be disregarded. Since Courts may not enact legislation by their rule-making authority, Gair v Peck, supra, and their rule making authority cannot significantly affect the legal relationship between litigating parties, the imposition of additional requirements that impair Mr. Brandes statutory remedies and abridge rights conferred on him by statute are not the proper subjects of rules promulgated by court administrators. Cf. LaSalle Bank, NA v. Pace, 31 Misc. 3d 627, 633-34, 919 N.Y.S.2d 794, 801 (Sup. Ct. 2011) aff’d, 100 A.D.3d 970, 955 N.Y.S.2d 161 (2012) 53 Moreover, the term “spirit of the law” is vague and undefined. (See 22 NYCRR 691.10[a]). Although the term is sometimes used by courts, no court or statute has ever defined the term “spirit of the law.” 22 NYCRR 691.10(a) provides that Mr. Brandes shall not violate the spirit of Judiciary Law §478, but does not define exactly what the “spirit” is or set forth any criteria to determine when it is violated. As such, its enforcement denies him due process. Consonant with the due process principles of the federal and state constitutions, a law must contain adequate warning of the conduct proscribed “to assure that citizens can conform their conduct to the dictates of law”. People v. Illardo, 48 N.Y.2d 408, 413, 423 N.Y.S.2d 470, 399 N.E.2d 59). The Legislature is not precluded from using ordinary terms to express ideas that find adequate interpretation in everyday usage and understanding, People v. Byron, 17 N.Y.2d 64, 67, 268 N.Y.S.2d 24, 26, 215 N.E.2d 345, 347; see People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625, 399 N.E.2d 513. The Constitution does not require impossible standards; it is enough that the language used conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Miller v. California, 413 U.S. 15, 27-28, n. 10, 93 S.Ct. 2607, 2617, n. 10, 37 L.Ed.2d 419, quoting Roth v. United States, 354 U.S. 476, 491-492, 77 S.Ct. 1304, 1 L.Ed.2d 1498; 54 see Trio Distr. Corp. v. City of Albany, 2 N.Y.2d 690, 696, 163 N.Y.S.2d 585, 589, 143 N.E.2d 329, 332. The requirement in 22 NYCRR 691.10 [a] that a disbarred lawyer comply with the “spirit” of Judiciary Law §478, a criminal statute, violates due process by “‘fail(ing) to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden’.” Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 citing United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989). It leaves virtually unfettered discretion in the hands of law enforcement officials and encourages arbitrary and discriminatory administration. No fair reading of the term “spirit of the law” supports or even suggests the constitutionally necessary limitations on its scope. Since Mr. Brandes did not engage in the practice of law, did not violate the order of the Appellate Division, and did not violate Judiciary Law § 478, he could not have violated the “spirit” of Judiciary Law §478 by any defined standard. An attorney has a valuable property right in his license to practice law which is protected by the Constitution. See O’Brien v. O’Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743 (1985). Under the Fifth and Fourteenth Amendments to the United States Constitution, a property interest sufficient to trigger 55 procedural due process protections is created and defined by "existing rules or understandings that stem from an independent source such as state law ... [These] rules or understandings must secure certain benefits and ... support claims of entitlement to those benefits." Board of Regents v. Roth, 408 U.S. 564, 577 (1970) In Matter of Mairs, 102 A.D.2d 146, 476 N.Y.S.2d 551 (1st Dep’t 1984) the Appellate Division specifically held that "due process" rights are implicated when a disbarred attorney applies for reinstatement because the courts’ "obligation to conform to procedural safeguards in disciplinary proceedings is now beyond doubt." 102 A.D.2d at 149, 150. The burden is on the petitioner to establish that he possesses the requisite character and fitness for the practice of the law. Application of Riley, 277 A.D. 993, 100 N.Y.S.2d 89 (App. Div. 1950); In re Culhane, 49 A.D.3d 64, 65-66, 848 N.Y.S.2d 165 (2007); In re Wiesner, 94 A.D.3d 167, 172, 943 N.Y.S.2d 410, 415 (2012). Mr. Brandes sustained his burden. He demonstrated by clear and convincing evidence that he complied with court’s order of disbarment and that he currently possesses the requisite character and fitness to practice law. All of the competent evidence was favorable to him. There was no competent negative evidence presented to the Appellate Division. 56 Article 1, Section 6 of the New York State Constitution provides, in part, that “No person shall be deprived of life, liberty or property without due process of law.” See also United States Constitution, 5th Amendment, which similarly provides that “No person shall be deprived of life, liberty or property without due process of law.” The right to due process of law includes the right to a fair trial. Habenicht v. R.K.O. Theatres, Inc., 23 A.D.2d 378, 260 N.Y.S.2d 890 (1 Dept. 1995); Shagoury v. Shagoury, 39 A.D.3d 527, 835 N.Y.S.2d 215 (2 Dept., 2007); Arbital v. Allstate Ins. Co., 282 A.D.2d 560, 723 N.Y.S.2d 386 (2d Dept., 2001); Matter of Jacquilin M, 83 A.D.3d 844, 922 N.Y.S.2d 111 (2 Dept., 2011). Mr. Brandes is entitled to due process. Matter of Holtzman, 78 N.Y.2d 184 (1991). Mr. Brandes was denied due process of law under the Fourteenth Amendment to the United States Constitution because the rule which requires him to follow the “spirit of the law” does not provide any standards to define the meaning of the term. It is vague and indefinite and, therefore, violates the United States Constitution. “Vague laws in any area suffer a constitutional infirmity” (Ashton v. Kentucky, 384 U. S. 195, 200). A” law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it . . . leaves judges and juries free to decide, without any legally fixed standards, what is prohibited and what is not in each particular 57 case.” (Giaccio v. Pennsylvania, 382 U. S. 399, 402 403. This rule is so vague that it leaves judges free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.” Giaccio v. Pennsylvania, 382 U. S. 399, 402 403. This Court has recognized that a license to practice law is a property interest. Matter of Rowe, 73 N.Y.2d 336, 338, 537 N.E.2d 616 (1989). In general, procedural due process claims challenge the procedures used by the government in effecting a deprivation of a right. Thus, substantive due process implicates “the essence of state action rather than its modalities.” In one commentator’s formulation, “[p]rocedural due process differs from substantive due process by focusing not on what a person has been deprived of, but rather on how the deprivation was accomplished.” The classic procedural due process case arises when the government acts to deny or curtail someone’s life, liberty or property interest and defends its action by asserting that it employed fair procedures in furtherance of a legitimate governmental objective (citations and footnotes omitted). Mark G. v. Sabol, 93 N.Y.2d 710, 728, 717 N.E.2d 1067, 1076 (1999) A State may not arbitrarily refuse a person permission to practice law, Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810; Schware v. Board of Bar 58 Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, Cohen v. Hurley, 366 U.S. 117, 122-24, 81 S. Ct. 954, 958-59, 6 L. Ed. 2d 156 (1961). Here, Judiciary Law §478, as applied by the Appellate Division, deprived Mr. Brandes of liberty and property without due process of law. The Court of Appeals has held that the statute as well as Judiciary Law §90(8) were enacted for the protection of the public, not to protect attorneys. The Appellate Division’s decision is so devoid of rational justification that there is a deprivation of Mr. Brandes liberty without due process. While the state has a substantial state interest in keeping the administration of justice and the standards of professional conduct unsullied, here the determination lacked a rational basis, and there was no legitimate governmental objective served by protecting attorneys from Mr. Brandes. The Court acted arbitrarily and irrationally in denying reinstatement to Mr. Brandes. POINT V THE DENIAL OF A FAIR HEARING DENIED MR. BRANDES DUE PROCESS Due process has to do with the denial of that ‘fundamental fairness, shocking to the universal sense of justice.’ Betts v. Brady, 1942, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595. It deals neither with power nor with jurisdiction, but 59 with their exercise. Kinsella v. United States, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960) The decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence. Thoreson v. Penthouse Intern., Ltd. 80 N.Y.2d 490, 606 N.E.2d 1369 (1992). Silverstein v. Goodman 113 A.D.3d 539, 979 N.Y.S.2d 308 (1 Dept., 2014). The findings of fact are binding upon the court, and the conclusions of law will be sustained, unless a material finding of fact is without evidence to support it. Dunlap & Co. v. Young, 12 Bedell 327, 174 N.Y. 327, 66 N.E. 964 (1903). Errors for consideration include: (1) Whether, upon the facts found by the Court, its conclusion of law is correct; (2) whether an essential fact was found without any evidence which, according to any reasonable view, would warrant it; (3) whether a material error was committed in receiving or rejecting evidence. Spence v. Ham, 1 Bedell 220, 57 N.E. 412 (1900) Here, procedural due process was offended and Mr. Brandes was denied a fair hearing because the Appellate Division relied solely on its conclusions without any supporting evidence to sustain them. A decision which contains conclusions without any evidentiary facts to support them is a denial of due process. 60 Mr. Brandes testified before subcommittees appointed by the Committee on Character and Fitness on two occasions. On both occasions he testified to generalizations, rather than specific events. Mr. Brandes testimony at the December 2, 2011 subcommittee hearing, in response to questions posed by the subcommittee members contained only generalizations about the kind of work he did and the attorneys who employed him. He never referred to a specific job he did for a specific lawyer. (December 2, 2011 Tr. 36-43) Mr. Brandes testimony at the second subcommittee hearing was essentially the same as his prior testimony, limited to generalizations. (December 2, 2011 Tr. 16-32) Mr. Brandes never testified that he “would guide the attorneys to the applicable statutes and precedent cases, and offer my past experiences.” He never used any of those words. He never used the words “difficult case”. He did respond affirmatively when the subcommittee chair said: “...you are an expert in this field.... That’s a recognized fact. ...People are coming to you because you have more expertise than they do, when it comes to the law”. However, he never testified that he was “vastly more experienced” than “the attorneys for whom [he] was performing the services.” There was no evidence as to the intelligence, skill or experience of anyone he worked for. (December 2, 2011 Tr. 31-32) 61 The second subcommittee issued a report which agreed with the characterization that Mr. Brandes performed paralegal services (Report, p.4), said that he drafted litigation papers and briefs (page 6) and concluded, based upon its own knowledge of Mr. Brandes reputation, that “…Petitioner, on the other hand, is, by his own admission, vastly more experienced in matrimonial and domestic relations matters than the attorneys for whom he was performing services.”(Report, p. 6) The decision of the Appellate Division denied Mr. Brandes procedural due process and a fair trial hearing it is based upon those generalizations rather than specific facts in the record. It contains conclusions that Mr. Brandes’…would give advice to an attorney who had a difficult case;” “…would speak to the attorney over the phone or by email regarding a particular aspect of the difficult case;” “…would guide the attorney to the applicable statutes and precedent cases, and offer his past experience.” These conclusions are not based upon any specific facts found by the subcommittee or the Appellate Division. Nor is there any evidence in the record to indicate the name of any attorney for whom he actually did this work, the intelligence of the attorney, the client of the particular attorney, the circumstances of the client, the particular problem of the particular client, nor how he “…exercised professional judgment directed at the legal problem of a particular client, 62 notwithstanding the fact that Mr. Brandes had no direct contact or relationship with the client.” Based upon Mr. Brandes general testimony that he did “piecework” which involved researching a legal issue and drafting a memorandum or brief, the Appellate Division erroneously concluded that Mr. Brandes” engaged in the practice of law.” The Appellate Division reasoned that since Mr. Brandes is more experienced than the attorney for whom he is performing services, then he is performing legal services for the client of the attorney for whom he is performing the services. The conclusion does not follow the premise. The conclusion is illogical. Every day paralegals, legal assistants, law clerks, law professors and even secretarial staff perform identical services for New York attorneys, and such services have never been held to constitute the practice of law. It is a denial of equal protection and due process to hold Mr. Brandes to a different standard than all other persons, and all other disbarred and suspended attorneys. POINT VI THE APPELLATE DIVISION ABUSED ITS DISCRETION AS A MATTER OF LAW 63 In Patron v. Patron, 40 N.Y.2d 582, 388 N.Y.S.2d 890, 357 N.E.2d 361 (1976), this Court observed that where the disposition involves the exercise of discretion as to factual determinations, this is an instance of what has been called "judicial discretion." In such a case the determination is not reviewable unless there are legal propositions advanced which raise substantial questions of abuse as a matter of law, or the results are so outrageous as to shock the conscience or there are extraordinary circumstances, factual or procedural, from which it might be concluded that there is a reasonable and substantial likelihood that on full consideration the Court would hold that there was an abuse of power or discretion. The legal propositions, arguments, and the facts and circumstances set forth above demonstrate that there was an abuse of discretion as a matter of law. The decision and order denying Mr. Brandes reinstatement, based on the finding that he was practicing law by doing para-legal from his home in Florida for New York attorneys is so outrageous as to shock the conscience. Point VII THE APPELLATE DIVISION ORDER WAS MADE IN DEROGATION OF MR. BRANDES FIRST AMENDMENT RIBHTS 64 The Order of the Appellate Division violates Mr. Brandes first amendment rights in that it prohibits Mr. Brandes from doing that which he could do (paralegal work) were he never a lawyer in the first place. The effect of the order of the Appellate Division is to prohibit Mr. Brandes, whom it acknowledged to be an authority and expert on New York divorce and family law, from being employed by any lawyer less knowledgeable than him, without providing an objective standard for determining if that particular lawyer is less knowledgeable than him. The Appellate Division’s order, which substantially restates the provisions required by section 90(2) of the Judiciary Law, directed respondent to desist and refrain from…(3) from giving to another an opinion as to the law or its application or any advice in relation thereto….” In Matter of Rowe, supra, this Court said that where the individual is not practicing law “and does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech, but rather impermissibly interferes with that individual’s First Amendment rights…” Mr. Brandes was exercising his right to free 65 speech by giving advice to attorneys and drafting briefs and litigation papers for them. In its order the Appellate Division prohibited Mr. Brandes from engaging in endeavors which he could have undertaken had he never been admitted to the Bar in the first place, without a legitimate governmental objective. See, Matter of Rosenbluth, 36 A.D.2d 383, 384, 320 N.Y.S.2d 839). Under the rule of Matter of Rosenbluth, 36 A.D.2d 383, 384, 320 N.Y.S.2d 839, as informed by the Court of Appeals opinions cited above, the legal delineation between the use of lay persons as legal assistants and suspended or disbarred lawyers as legal assistants is a distinction without a difference. The distinction between Mr. Brandes and suspended or disbarred lawyers is illogical, and violates his first amendment rights. POINT VIII MR. BRANDES HAS COMPLIED WITH 22 NYCRR 691.10(a) WHICH REQUIRES THAT: “DISBARRED …ATTORNEYS-AT-LAW SHALL COMPLY FULLY AND COMPLETELY WITH THE LETTER AND SPIRIT OF SECTION[S] 478… OF THE JUDICIARY LAW….” Judiciary Law § 478 makes it “…unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself or herself in a court of record in this state, or to furnish attorneys or counsel or an attorney and counsel to render legal services, or to hold himself or herself out to the public as 66 being entitled to practice law as aforesaid, or in any other manner, …, without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath." It is derived from § 270 of the Penal Law of 1909, as amended. The phrase “spirit of the law” does not appear in Westlaw’s “Words & Phrases”, a recognized source of judicial decisions defining statutory language and court rules.6 However, it does appear in Black’s Law Dictionary (10th ed. 2014) under the word “spirit”, as follows: spirit The putative fundamental intention of the creator or creators of a legal instrument, whether it is a statute, a regulation, a contract, a will, or some other document having a legal effect; esp., the general drift of a statute, as opposed 6 According to its Editors, the Scope of Words and Phrases is as follows: Coverage: Words and Phrases coverage begins in 1781. Content Highlights: Words and Phrases contains judicial definitions, from both state and federal courts, from both published and unpublished opinions. Definitions may pertain to statutory language, court rules, administrative regulations, or business documents, among other sources. Each definition contains a citation from the court that provided the definition. Each definition is also classified by West’s attorney-editors to the West Key Number System(R), wherever possible*. New judicial constructions and interpretations of words and phrases are promptly supplied as they become available from the courts. **This database contains some older references that were not classified to the West Key Number System. (See Westlaw Next, Words and Phrases Scope Information) 67 to its literal content. — Also termed spirit of the law. Cf. letter of the law. It is submitted that the “letter” of § 478 and the “spirit" of §478 are one and the same. Looking to the legislative intent behind the enactment of this statute leads to the conclusion that there is and can be no distinction between the two. The conduct that is prohibited to all but licensed attorneys is to practice or appear as an attorney-at-law, or otherwise without being admitted to practice law. In People v. Alfani, 227 N.Y. 334, 337-41, 125 N.E. 671, 672-74 (1919) this Court construed former Penal Law §270, now Judiciary Law §478. It held that the words ‘as aforesaid’ refer to practice in the courts mentioned, and the words, ‘or in any other manner,’ refer to the practice as an attorney at law out of court and not in legal proceedings. Practicing as an attorney at law in or out of court, or holding oneself out as entitled to so practice, is the offense. To make it a business to practice as an attorney at law, not being a lawyer, is the crime. It noted that the reason why a license is required, “is not to protect the bar, as stated in the opinion below, but to protect the public…” 68 Thus, it is well established that the legislative intent behind Judiciary Law §478 is “to protect the public in this State from ‘the dangers of legal representation and advice given by persons not trained, examined and licensed for such work, whether they be laymen or lawyers from other jurisdictions.’” Spivak v. Sachs, 16 N.Y.2d, at 168, 263 N.Y.S.2d 953, 211 N.E.2d 329, [construing former Penal Law § 270, the predecessor of Judiciary Law § 478]). Accord, El Gemayel v. Seaman, 72 N.Y.2d 701, 705, 533 N.E.2d 245, 248 (1988) See also Jemzura v. McCue (3 Dept. 1974) 45 A.D.2d 797, 357 N.Y.S.2d 167; In re Bercu, 188 Misc. 406, 416-17, 69 N.Y.S.2d 730, 739 (Sup. Ct. 1947) rev’d sub nom. Application of New York Cty. Lawyers’ Ass’n, 273 A.D. 524, 78 N.Y.S.2d 209 (App. Div. 1948) aff’d sub nom. In re Bercu, 299 N.Y. 728, 87 N.E.2d 451 (1949);(People v. Black, 1935, 156 Misc. 516, 282 N.Y.S. 197 (Legislature, in enacting statutes making it criminal offense for layman to practice as an attorney intended only to protect general public from exploitation, and not to protect legal profession). Judiciary Law § 478 is a criminal statute whose sole purpose is to deter persons who are not licensed attorneys from engaging in the “practice of law” in New York. Its objective is to protect the public, not lawyers. As we have demonstrated, Mr. Brandes did not practice law or appear as an attorney or “otherwise.” He did not engage in the “practice of law.” 69 Therefore, he did not and could not violate the “spirit” of Judiciary Law §478. CONCLUSION It is submitted that, for the reasons set forth above, the Court of Appeals should reverse the order of the Appellate Divison and grant Mr. Brandes petition for reinstatement. Respectfully submitted, Chris McDonough /s/ Chris McDonough