Staff Attorney's $10 Million Lawsuit Proceeds Against Discipline Committee
The New York Law Journal by Daniel Wise - April 30, 2009
An attorney who was fired after working six years as a staff lawyer
(see the roster of names on the left) at the 1st Department's disciplinary committee may proceed with a $10 million damage lawsuit
that she was discharged in retaliation for claiming her superiors were "whitewashing
" cases, a Southern District of New York judge ruled Monday. However, the judge, Shira A. Scheindlin
, threw out the attorney's claim that she had been fired because she is black, in ruling on a summary judgment motion brought by the Office of Court Administration
. Christine C. Anderson
contended that her June 2007 firing was in retaliation for complaints she made to her superiors at the disciplinary committee that at least nine cases had been handled too leniently because the lawyers being investigated were politically connected or were represented by attorneys who had previously worked for the committee (NYLJ, Oct. 30, 2007). Anderson, who was born in Jamaica, also claimed the committee had discriminated against her on the basis of race, color and national origin.
The disciplinary committee operates under the aegis of the Appellate Division, First Department
, and Anderson sued the OCA; Thomas J. Cahill, the committee's chief counsel during the years Anderson was employed there; Sherry K. Cohen, who became deputy chief counsel and Anderson's supervisor in 2003; and David Spokoney, the 1st Department's deputy clerk. With the exception of Cahill, who resigned in 2007 after 10 years in the post (NYLJ, July 23, 2007), the other individual defendants remain at their jobs. The 1st Department's disciplinary committee polices the conduct of attorneys practicing in Manhattan and the Bronx.
In allowing Anderson to proceed with her retaliation claim, Scheindlin found that her contention that the committee had "whitewashed" as many as nine cases touched upon a subject of public concern and was protected under the First Amendment. A jury will have to determine whether the defendants fired Anderson because of the concerns she raised or because she had been insubordinate, as the defendants contend, Justice Scheindlin concluded
in Anderson v. State of New York, 07 Civ. 9599. Scheindlin noted that Anderson in a "host" of e-mails had made "evident" her "hostility toward" and "refusal to cooperate" with Cohen, her supervisor. Nonetheless, Scheindlin ruled that "a reasonable jury could find that the defendants refused to remove Cohen as Anderson's supervisor so they could use Anderson's inevitable resistance to Cohen's continuing supervision as a pretext for firing her."
In concluding that Anderson's complaints touch upon matters of public concern, Scheindlin rejected OCA's argument that Garcetti v. Ceballos, 547 U.S. 410
, a 2006 U.S. Supreme Court precedent, was controlling. The attorney general's office, which represented OCA and the individual defendants, contended that Anderson's First Amendment claim must be rejected under the authority of Garcetti. The Supreme Court rejected a First Amendment retaliation claim brought by a deputy district attorney who claimed he was fired because he recommended the dismissal of a case. The prosecutor had urged dismissal because a flawed affidavit was used to obtain a search warrant. Rather than raising an issue of public concern, Justice Anthony M. Kennedy wrote in a 5-4 ruling in Garcetti that the prosecutor was acting as a public employee with regard to an internal matter when he "fulfill(ed) a responsibility to advise his supervisor about how best to proceed with a pending case." Scheindlin found Anderson's case to be "patently distinguishable" from Garcetti. "The prosecutor in Garcetti spoke about a single case pending in his office," she wrote, while "Ms. Anderson spoke out about systemic problems at the [disciplinary committee], thereby making her speech protected." "Where a public employee's speech concerns a government agency's breach of trust, as it does here," she wrote, "the speech relates to more than a mere personal grievance and therefore falls outside Garcetti's restrictions."
DISCRIMINATION CLAIMS FAIL
Scheindlin found that none of the three remarks that Anderson alleged Cohen made had any bearing on her bias claims. One alleged remark -- that the homeless are "smelly" -- did not reflect upon a group protected by federal civil rights laws, the judge ruled. The other two alleged comments -- that there are too many blacks in the subway and blacks were moving near Cohen's vacation home -- were not "directed" at Anderson, "unrelated to her discharge" and allegedly uttered about one year before her firing, Scheindlin wrote.
Anderson also presented deposition testimony from three present or former minority employees who had expressed views that Cohen was biased. Two of those witnesses, one of whom was a lawyer, expressed views that reflected subjective beliefs that are "devoid of any factual circumstances linking Cohen to any discriminatory conduct," Scheindlin found. The testimony of the third minority witness, Kenneth Van Lew, an investigator who left the office at the time of his deposition, provided "concrete instances in which he believes he was treated less favorably by Cohen than similarly situated Caucasian employees," Scheindlin wrote. But even though Van Lew's testimony provided "some credible evidence" of discrimination, the bias-based claims had to be dismissed, Scheindlin concluded, because "there is simply no evidence" that any alleged bias had tainted the decision of the ultimate deciding authority, the 1st Department's justices serving upon the court's Departmental Disciplinary Liaison Committee. The state defendants were represented by Assistant Attorneys General Lee A. Alderstein and Wesley E. Bauman. The attorney general's office did not respond to a request for comment. Anderson was represented by John A. Beranbaum of Beranbaum Menken Ben-Asher & Bierman.
State Claims Attorney Violated Superior's Orders
New York state, in a motion for summary judgment filed last week, portrayed an attorney who sought $10 million damages for her firing by the First Department's Departmental Disciplinary Committee as violating the direct orders of her superiors. The lawyer, Christine C. Anderson, filed the lawsuit in 2007 claiming she was fired after six years as a staff attorney because she complained the committee's chief counsel and his top deputy were "whitewashing" complaints against "certain select attorneys" (NYLJ, Oct. 30, 2007). A brief filed for the defendants - the state and three committee officials - stated that instead of following her direct supervisor's orders, Ms. Anderson engaged in "an eight month campaign to circumvent and berate" the supervisor, Sherry K. Cohen. The brief, which was written by Assistant Attorneys General Lee Alan Alderstein and Wesley E. Bauman, also contended that the "highest officers" in the First Department courthouse were aware of Ms. Anderson's "acerbic and posturing conduct." Ms. Anderson's attorney, John A. Beranbaum, retorted that the defendant's brief is using an "employers' time-honored technique of trying to trivialize a valid whistle-blowing claim" by labeling it "a disgruntled employee's personal grievance." Mr. Beranbaum, of Beranbaum Menken Ben-Asher & Bierman, added, "at the end of the day, this tactic will prove unsuccessful." - Daniel WiseChief Counsel for First Department Set to Retire
New York Law Journal Newsbriefs, July 23, 2007
Thomas J. Cahill, chief counsel to the disciplinary committee of the Appellate Division, First Department, will soon retire, Presiding Justice Jonathan Lippman announced Friday. Mr. Cahill will continue to head the committee until his replacement is appointed. He was named chief counsel in 1998. Individuals interested in applying for the position may send resumes to David Spokony, Deputy Clerk of the Court, 27 Madison Avenue, New York, N.Y., 10010. Mr. Spokony is also accepting resumes for the position of secretary to the court's committee on character and fitness. The position became vacant when Sarah Jo Hamilton retired last month.Ethics Complaints Against Some NY Lawyers Whitewashed, Attorney Alleges
New York Lawyer, October 30, 2007
By Daniel Wise
New York Law Journal
A former staff attorney at the First Department Disciplinary Committee has filed a federal lawsuit charging she was fired in June in retaliation for complaining that her superiors had engaged in a "pattern and practice of whitewashing and routinely dismissing complaints against certain select attorneys."
Christine C. Anderson, who had worked for six years at the disciplinary committee, seeks $10 million in damages, claiming retaliation for the exercise of her First Amendment rights and discrimination because she is of Jamaican origin and black.
Ms. Anderson also asks for the appointment of a federal monitor to oversee operation of the disciplinary committee.
David Bookstaver, a spokesman for the Office of Court Administration, said it would be "inappropriate" to comment on pending litigation.
Ms. Anderson alleged two instances in which her recommendations had been overridden or changed by her superiors at the committee.
In 2005, Ms. Anderson charged in her complaint, she discovered that the chief counsel of the disciplinary committee, Thomas J. Cahill, and Sherry K. Cohen, its first deputy counsel, were "apparently engaged in a 'numbers game' and practice" of "selectively" dismissing complaints against attorneys for their "own personal and political reasons."
A possible second, or alternative reason for the dismissals, the complaint stated, was that the prosecutions of the complaints would be "burdensome or otherwise 'unworthy' of prosecution."
Ms. Anderson also charged that in one incident, in July 2006, Ms. Cohen physically blocked her from leaving her office and, in so doing, had dug her nails into the plaintiff's hand, causing scratches.
Mr. Cahill declined to comment on the allegations; Ms. Cohen did not return a call for comment.
In addition to suing Mr. Cahill and Ms. Cohen, Ms. Anderson named as defendants Justice John T. Buckley, who was presiding justice of the Appellate Division, First Department, until May; former Clerk of Court Catherine O'Hagan Wolfe, who resigned in April to become clerk of the U.S. Court of Appeals for the Second Circuit; and the Office of Court Administration.
The case, Anderson v. State of New York, was filed on Friday in the Southern District, according to Ms. Anderson's attorney, Frederick K. Brewington of Hempstead.
Mr. Cahill's retirement was announced in July, though he is remaining as chief counsel until a successor is chosen.
The first instance of a "whitewash" alleged in Ms. Anderson's complaint occurred "in or about 2003" in "a highly sensitive investigation," which had uncovered "overwhelming concrete evidence of misconduct" by an attorney, Ms. Anderson alleged.
The matter was dropped despite her recommendation that a formal complaint be filed against the lawyer, Ms. Anderson alleged.
She also charged that a large file she had amassed containing "indisputable evidence of misconduct" had been "gutted."
The second instance in which Ms. Anderson's handling of a case was overridden occurred about two years later, she alleged.
In that case, she stated, Mr. Cahill had asked her to write an introductory paragraph to the policy committee, explaining her recommendation that an attorney be given a non-public admonition rather than be the subject of a formal proceeding that could lead to a public sanction.
Ms. Anderson explained in her complaint, that, although the results of a "complex investigation" of the attorney "argued strongly in favor of charges," there was "lack of actual proof of a conversion." She also stated there had been an "initial lack of cooperation" from the client complaining against the lawyer.
Ms. Anderson stated that she wrote an introductory paragraph explaining the gravity of the attorney's conduct, but that Ms. Cohen had rewritten it, "deleting facts" Ms. Anderson had uncovered during her investigation and conclusions she had reached.
Ms. Anderson quoted Ms. Cohen as saying the reason she had rewritten the paragraph was to avoid having the policy committee send the matter back to staff for the preparation of a formal complaint.
Ms. Anderson further charged that Ms. Cohen had done this because "she had a prior working relationship" with the attorney for the lawyer under investigation and sought to avoid having his client formally charged "as a favor."
The complaint did not identify the two lawyers who were the subjects of the proceedings cited by Ms. Anderson. Mr. Brewington said in an interview that he would not name them "at this time."Related Case: Gizella Weisshaus Sues Ed Fagan and other Lawyers who stole her father's money and propertyIVIEWIT LAWSUIT: Stephen Krane, Esq.Iviewit press releaseSex scandal at the DDCCOMMENTS TO EXPOSE CORRUPT COURTS
Posted by Corrupt Courts Administrator at 10:59 AM
NYC attorney said...
It's about Time!
October 31, 2007 11:16 AM
Let's make a copy of this complaint and file it for the ninth judical grievance committee. You would just need to change the address and a few names.
October 31, 2007 12:02 PM
NY bar member said...
After reading the article the terms Cover-up and Obstruction come to mind. These are also the same things that took Nixon down.
October 31, 2007 12:41 PM
a few years ago i got a copy of the Annual report.
Then I called the census And got a
breakdown of the local population
it was roughly
10% for Asian
28% for Latino/Hispanic
26% for African American
That would mean that by the number of employes that were working thier would have had to been +/-
33 Latino/Hispanic employes
and i think it was something like +/- 12 Asians
Thier was only 1 Asian, 3 maybe 4 Latinos/Hispanic
I started wondering because i went to the office. In front of me thier was 2 Asian woman. The mother did not speak english and the daughter did not speak to much english either. They had hired a lawyer for an imigration problem.
The lawyer did nothing but took thier money. the lady behing the desk handed her a lawyer complaint form written in english. She did not understand. The Asian very politly pleaded with the woman if they could speak to someone. ( i think it was time sensitive) the employee ignored her. The 2 women left in the same elavator I did.
They were crying was worst. i spoke to the woma about my complaint and got the blow off answer also. I speak english.
I went to the EEOC office in downtie I found that i did not have enough proof to file a complaint. I told a lawyer I know
he thought that the ratio were
really bad. He was shocked when i showed him the numbers.
Their are so many problems over thier that you need the Federal goverment to look into it. Maybe even local law schools and minority groups
Cahill Should not be the only one
fired they all should.
Also they get about 2,000 complaints a year. Therefore how many complaints were ignored over the years. Even if you were not friends with Cahill what about the other people that work thier burrying complaints against thier friends.
October 31, 2007 1:36 PM
court officer said...
The Courts/Judiciary are a cesspool operated by rats...I work there, I know and I can't wait to get my pension.
October 31, 2007 1:53 PM
court officer said...
The Courts/Judiciary are a cesspool operated by rats...I work there, I know and I can't wait to get my pension.
October 31, 2007 1:53 PM
shocked ! said...
Am I dreaming? So, the people at the top of the group that oversees ethics are themselves crooked?!?
Immediately arrest this nitwit Cahill!
I can't believe this !!
Bring in the feds !!!!
October 31, 2007 4:41 PM
Cahill, Cohen et al. go directly to jail and do not stop.
October 31, 2007 8:48 PM
Ethics WHAT ETHICS? They got caught, the fix is in that's how they have controlled things for soooo looong.
October 31, 2007 9:26 PM
the shadow said...
FLASH - IMPORTANT NEWS BULLETIN
Please be advised that today - Wednesday, 10/31/07 was the last day of taking up space at the Un-Ethics Group for our good friend Thomas Cahill. We all know that he will be sorely missed by all of his dear friends along with all the bartenders that he knows all too well. The WAKE will be held tomorrow at Moran's (Broadway & Thomas St.), flowers requested. As part of this devastating news Tom's sidekick/drinking compatriot Sherry K. Cohen had the chutspah to formally apply for Tom Cahill's position, beleive it or not! Unfortunately, she recently received a telephone call from the First Dept. rejecting her. She is not taking it well. Too bad, you know how it is, things happen Sherry. The buzz now is, how long will Sherry K. Cohen last? However, all is not lost, reliable sources have stated that Sherry K. Cohen will grace the WAKE for Tom Cahill in her official capacity as the authorized libation sampler at the open bar. Everyone is encouraged to bring your cameras for one last photo op of Tom and Sherry together.
The question for Tom will be where in CT will he be residing, could it be Danbury?
Let's all give Tom a big sent-off and don't forget to pass the word we want a big showing.
October 31, 2007 11:44 PM
they neeed to get rid of more people.
Rebecca Taub-Rubber stamp rejection letters without even reading the complaint.
Marci Sterling- does nothing but collect a pay check.
How about hiring people based on thier QUALIFICATIONS and not thier conections.
The Feds neeed to be brought in.
To try protect people`s Civil rights. What about ensuring N.Y
that they will get competent council.
If you are a doctor and you found incompotent or unqualified to do what you are doing. You will probably lose your license and go to jail. How about holding Cahill
liable. Cahill has been collecting pay for years. What about making him pay it back. Put it towards the clients they screewed.
November 1, 2007 1:24 AM
nyc atty said...
This story is in the NYTimes today, maybe the Federal people will see it and do something so the honest atty's don't get tarred with what is coming.
November 1, 2007 10:16 AM
The PJ's phone has been ringing without stop about this. Jonathan Lippman is not a happy person. Watchout below
November 1, 2007 10:23 AM
The fly on the wall must have been partying with Sherri Cohen when the posting was made. Moran's is located at 103 Washington St. @ Rector St., have been told that the party starts at 4 PM. See you all!
November 1, 2007 10:32 AM
another insider said...
Forget the flowers at the party, that was someone's idea of a joke. Be advised that Sherry Cohen was going to be the one to collect all the envelopes for Tom, however, apparently due to circumstances, Sherry has thought better of that, assigning the task to a secretary. So you know who you are, all of Tom's good friends from all the big law firms be sure you are there and do the right thing. Remember we will be watching. Also, somebody might consider employing the very talented Tom Cahill, that's the least someone could do after all he's done for people. Don't forget now we want to see plenty of big fat envelopes containing the President's pictures. Let everyone know and see you all at Moran's.
November 1, 2007 1:08 PM
federal employee said...
The NYT story is very interesting, we didn't know these things.
November 1, 2007 1:30 PM
westchester victim said...
FBI agent O'Connor is tight with Judge Scarpino who is an ex-FBI agent
November 1, 2007 1:38 PM
This is to all the attorneys and court personnel who post. I want to thank you all for not only reading this blog but responding with comments and information. It is the victims of the courts that complain, but get dismissed with the "disgruntled litigants" tag.
I know that there are some honest attorneys out there. Once I was in an elevator in the 111 MLK courthouse, when a group of four or five attorneys from some big firm got on and were incredulous at how the opposing counsel outright lied in court and got away with it. It was surprising and interesting to see their reaction.
Obviously the insiders are the ones who know how all the fixing is done and it is left to the victims to complain. But without more specific information on how the courts and cases are corrupted and fixed, those complaining just sound like losers.
Many of the small changes that are taking place is only the result of insiders providing information and then the litigants making a stink about it that anything has changed.
Keep leaking information and others will follow. Since this blog was first started the numbers of insiders posting keeps increasing. A very good sign.
Again, thanks for coming forward and keep posting.
November 1, 2007 2:02 PM
media person said...
Like the blog much information - the Times called it a Cover-up! And what a Cover-up.
November 1, 2007 6:55 PM
the times nailed it, it is a BIG COVER-UP
November 1, 2007 8:26 PM
the insider said...
Everyone is having a good time at the party for Tom, but at the same time everyone is concerned. This is much bigger that anyone knows, Tom got out at a very good time, now everyone has to watch their back.
November 1, 2007 8:46 PM
a judge said...
My sincere compliments to Ms. Christine C. Anderson as an attorney and former employee of Disciplinary Committee for her ethical and moral integrity in placing this critical issue in the public forum where I believe it belongs at this time. Since there has been no replacement named for Thomas Cahill's position, I would like to suggest Ms. Christine C. Anderson since she is intimately acquainted with the situation of this scandal in the Judiciary system.
November 2, 2007 6:49 AM
Well Judge, you are right it is a SCANDAL and you probably don't know 10% of it! Obstruction of Justice is a crime, as you know!
November 2, 2007 7:01 AM
victim of Pirro's gang said...
could someone provide the NY Times link to the story,
November 2, 2007 12:36 PM
November 2, 2007 3:39 PM
ny lawyer said...
Bravo to Ms. Anderson for her courage. There are lawyers that are not happy with the OCA and the disgrace that we have to bear.
November 2, 2007 6:09 PM
Hey, Sherri baby, are still screwing people? Better be careful you will wind up getting screwed yourself. You know what I mean, hon!
November 2, 2007 7:49 PM
an insider said...
the buzz is deafining on this one, the word is that things that were deeped sixed will be - repeat - will be looked at hard again - no free pass anymore
November 2, 2007 9:13 PM
lawyer victim said...
I filed papers with the OCA on my lawyer and just got jerked around, now I know why. Would like to sue them all but I don't trust lawyers (including Judges) after what I've been through. The whole system sinks.
November 3, 2007 9:59 AM
As far as OCA hiring ms. Anderson for any job..no way! OCA does not approve of employees with integrety and ethics. Their own counsel's office is loaded with mediocre, unethical, butt kissing lawyers! Especially under judy kaye, even the lowest paid employees must never address any thing biased or discriminatory, even though OCA'S handbook demands that said behavior be immediately brought to the attention of OCA and they should be given the opportunity to address SAME.....AKA.....silence you, using any means! I would love an opportunity to discuss this with any OCA superior. So as long OCA remains uncertain about their future, the same hiring and reporting methods stay in place...i know i worked for them for 30 years!
November 3, 2007 10:10 AM
lawyer victim said...
I what to continue and say, yes I'm DISGRUNTLED and why shouldn't I be after enduring a corrupt system run by con men and fraudsters. When I went to the newspapers they didn't want to touch it. Their lawyers told them not to run it. Again, the iron grip of control, one lawyer protect another. Maybe the newpapers have change their minds now, we'll see.
November 3, 2007 10:16 AM
The Times story headline is "Suit Accuses Court Panel of Cover-up" - this is a SCANDAL and COVER-UP so where is Judge Kaye & Lippman? What are they doing about it? Answer nothing, since they are part of it. A new broom sweeps clean. Get rid of the permanent Judiciary, NOW.
November 3, 2007 10:47 AM
I too was called "DISGRUNTLED" by attorneys and a Judge. I told them all that I was not "DISGRUNTLED" to use their term, they were "DISGRUNTLED" that I figured out the fraud that they had pulled. They all didn't say a word after that. I am disapointed that the system has clearly failed. Still fighting....
November 3, 2007 10:55 AM
With the cover-up in OCA of regular complaints, you can only imagine what has happen to all the compaints that were filed against Judges. That's another big cover-up.
November 3, 2007 1:56 PM
The NEW STATE COMMISSION ON JUDICIAL CONDUCT has covered up stories about judges they don't want to investigate, esp. chief administrative judges and elected officials of most, but generally higher courts. I know this factually, because i know members of the commission and they covered up something i attempted to report and they know my credibility! That is all OK FOR NOW, because the story will come out and the commission will have to explain to investigators et al shortly, their reasons for not even inquiring about the facts of the new complaint, knowing they had 2 yrs of knowledge of another complaint that was heavily related and they had investigated! Anything that says STATE you must be suspect of...they ALL covering for each other!
November 3, 2007 5:26 PM
yeah, the judges are guilty too another cover-up
November 3, 2007 6:30 PM
I've had a Judge tell me that if I fought on an issue that the Judge wanted a certain way, not to ever come back to his court because I was dead meat, he would screw me. I filed a complaint, it went to the black hole and I have stayed away from that Judge. Investigate all the Judges.
November 3, 2007 8:20 PM
The cover-up on the JUdges must be wild!
November 3, 2007 8:44 PM
retired court officer said...
They should look at the Judges, if they really investigated them the whole thing will come apart......
November 3, 2007 9:07 PM
a victim said...
I learned the trick the Judges do when you don't do what they want, first they rule against you. Then knowing that you are right, you want to appeal which your lawyer encourages. Meanwhile, the meters are all running and the lawyers are making big bucks. So you go through the appeal process and get beat-up and also lose, but everyone is making big bucks except you. Later you learn that at least 85% (maybe 95%) of Judge's decisions are not reversed, of course, no one ever informs you of that fact. Then much later you see a Judge (Sonda Miller who voted against you in favor of the Judge) becomes a partner in the law firm of McCarthy Fingar (Frank Streng) who have extremely close ties to Judge Anthony J. Scarpino. It comes full circle back to where it all began with Judge Scarpino, now it all makes sense. It is a game to seperate you from as much of your money as they can, it has nothing to do with JUSTICE or RIGHT. It's a big CON GAME on the public run by the lawyers and Judges in their black robes. But it is all legal because their all lawyers and Judges.
November 4, 2007 9:58 AM
The only time the commission on judicial conduct examines a high powered judge ( someone they consider elected by the people (they are screwing)is if it makes the media! A public story is how they operate...fact! Their judicial investigating panel has many political members on it...check your city and see. These members also do their own little investigation with or without the commission's knowledge, because they can. However they are picked for this panel , i do not know, but i would love to see an ordinary citizen or two on it and then you will see the same expose/ as MS ANDERSON brought forward. The state comm. on judicial conduct should be part of the entire NY court investigation!
November 4, 2007 10:12 AM